Jusletter IT

2011 has seen a startling but steady growth in the number of declarations of rights and principles with a bearing on Internet Governance. Individual states, such as the US, China and Russia, and India, Brazil and South Africa, have developed principles and codes of state conduct. International organizations, including the Council of Europe, OSCE and NATO, have formulated principles to guide the evolution of Internet Governance. Multistakeholder coalitions, including the Internet Rights and Principles Coalition have developed sets of rights and principles. Finally, at the Internet Governance Forum in Nairobi 2011, civil society representatives called for their own set of principles to be developed for the 2012 IGF in Baku.

What should international lawyers make of this “Internet principle hype”¹ ? They should make it serve the protection of human rights in the information society. In 2012, it is imperative to relate these principles to the normative framework of Internet Governance and assess them in light of their potential to be transformed and translated, operationalized and implemented. In the process leading up to the IGF 2012 it is therefore of great importance to analyze how the different sets of principles interact, which set has the greatest intrinsic and extrinsic ‘value’ and how they can be framed in the language of more traditional legal obligations, if at all.

Rather than addressing the individual collections of principles, my contribution will argue that a formal approach is best suited to translate the principles into norms: the functional approach. Recognizing the essence of all law – the protection of the human being – the approach should be used to shape international legal approaches to Internet Governance in 2012, a year promising to be exciting for Internet Governance.

In its definition of Internet Governance the Working Group on Internet Governance referred to the “development and application” by the three main stakeholder groups, in their respective roles, of “shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.”² Of these, the shared principles are arguably the most important, as they influence the other (normative and pre-normative) instruments.

2011 saw the publication of a number of Internet Governance Principles by different states,³ groups of states,⁴ international and intergovernmental organizations,⁵ and non-state actors.⁶ Whether termed ‘compact’ or ‘strategy’, the documents usually contained certain broadly phrased principles to guide the future development of Internet Governance. Often, these non-binding principles that have orientative value were passed, adopted or published in the forms of resolutions or declarations, such as the Declaration by the Committee of Ministers (of the Council of Europe) on Internet governance principles (my emphases).⁷

How do principles relate to norms? Principles are less constraining that norms or rules and help guide normative development and application especially in “hard cases.”⁸ They do, however, usually engage issues of public policy, public morality and public interest.⁹ Unlike principles, norms and rules are more constraining and rigid in their application.¹⁰ Norms, the broader concept, and rules are usually binding in the sense that a certain consequence follows, when the conditions for application of the rule to the facts are met.¹¹

Principles can thus impact the emergence of more rigid, and binding, rules of Internet Governance. But to have this effect, the principles need to be translated and operationalized. What should guide this process?

Institutionally, the spring 2012 session of the UN Human Rights Council will discuss Internet and freedom of expression. Special Rapporteur Frank La Rue’s report from 2011¹² will continue to shape the discussion. The IGF in autumn 2012 will also have to consider seriously, in a multi-stakeholder process, the role principles can take. Throughout 2012, the ITU will hold negotiations on its International Telecommunication Regulations to be adopted in December 2012 in Dubai. These could, for the first time, also include a right to access.¹³

In all these discussions Internet Governance principles should play an important role. As they stand now, however, they will most likely fail to do so. Just as the debate on SOPA permeated the last weeks of 2011, the first weeks of 2012 have seen emerge a robust discussion on the right to access the Internet. The discussion on the right to access¹⁴ is an interesting case study of the impact of principles because it evidences a lack thereof. Few discussants related the discussion to the references to the right of access in existing collections of principles, including notably the very first article of the Internet Rights and Principles Coalition’s Charter on Internet Rights and Principles that lays down that “[e]veryone has the right to access to, and make use of, the Internet. This right underpins all other rights in this Charter.”¹⁵ This can lead to the conclusion that the multitude of principles makes it inherently difficult to legitimately select any one of them.

What is therefore necessary is a broader approach that allows the translation and operationalization of principles. This approach is the functional approach.

It will be difficult to have all stakeholders agree on one set of principles. A functional approach to the Internet Governance Principles helps analyze how these can be shaped, reshaped, formed or reformed in order to more effectively and legitimately reach specified goals – a certain ‘function’. These goals are not formal but necessarily material and be deduced from, what I together with a number of scholars would argue to be the essence of (international and Internet Governance) law: the ultimate concern for the protection of the human being.¹⁶

Functionalist approaches to Internet Governance Principles profit from and enhance the implication of legitimacy that inheres these principles coupled with the conviction of at least a substantial part of those who are later on bound by the norms the principles are translated into are, indeed, legitimate. Functionalism, as described above, asks how a regime needs to be optimally designed in light of certain material goals and thus legitimizes both regime design and the normative outcomes through this normative anchor.

How could a functional approach influence the discussion on the right to access? There would be no need to abstractly ask whether a new human right to access has emerged or whether such a right has not emerged. Internet access would be interpreted, in line with UN Special Rapporteur Frank La Rue’s important 2011 report, as a catalyst for other human rights. By thus focusing on the function of Internet Governance law – protecting human being and ensuring their human rights, which presupposes access to the Internet as a tool – we can implement one of the rights and principles effectively.

2011 was the year of Internet Principles, 2012 will have to be the year of their operationalization. I have argued that the principles can be best operationalized through a functional approach. In light of the normative goal of Internet Governance law (as of all law: the protection of the human being) a functional approach can help translate the principles into practice. The example of the right to access has shown how this can be done.

2012 will be an important year for the protection of human rights on the Internet. The 2012 session of the UN Human Rights Council will discuss the role of freedom of expression on the Internet, itself a catalyst for other human rights. The IGF 2012 and the ITU conference in December 2012 will both have to seriously consider the role of Internet Governance Principles and how they can be translated into practice.

Principles and rights have started to seriously influence Internet Governance over the last years. Developments in 2011 have only served to accelerate the process and raise the stakes. There is no stepping back. 2012 will the year where we have start taking the operationalization of rights (and principles) seriously – and the functional approach may help in this process.