Jusletter IT

The internet as the international space for information, communication, markets and services is without question one of the main drivers for globalisation. Regulation can only be addressed on a global scale. Present international institutions are inadequate to deal with these new challenges. Thus, not a traditional International Organisation like ITU but an International Organisation sui generis is the most important regulator of the Internet.

In 1998, ICANN (Internet Corporation for Assigned Names and Numbers) – a non-profit association established under Californian law – was founded as the technical regulator of the Internet.¹ The concept of technical regulation of the root server system, the communication language TCP/IP, the IP addresses and the domain names properly describes the still fuzzy governance of the Internet. Authoritative standardisation guides the behaviour of cybernauts, strongly backed by U.S. government and the established Internet community – especially the standard-setting organisations of the Internet Engineering Task Force (IETF) and the World Wide Web Consortium (W3C).

For International Organizations, it is clear that they are bound by international law. As subjects of international law, they have to respect this body of law.² On the other hand, they enjoy privileges and immunities under international law. Nowadays, new entities like ICANN move into the international sphere. These organisations are without question subject to the national law of the seat state and – as part of the law of the seat state – also to international law.

ICANN as the most prominent example of these so-called International Organizations sui generis demonstrates the dilemma having to comply with two legal orders. Firstly, International Organizations sui gerneris do not have privileges and immunities under international law. ICANN is not exempt from national law, e.g. Californian or U.S. federal law. Secondly, ICANN is not sufficiently integrated into the international framework in order to sufficiently know and shape international public policy for its purposes. Both questions are important and cannot be solved easily. Whereas the first question that would require more privileges and immunities from the seat state USA and thus could be settled given the necessary (but until now not available) readiness of the seat state; the second question poses the real challenge. How can International Organisations sui generis be incorporated into the system of international law if they are still considered as something “special” but not as an “equal” in the international legal system?

Created in 1998, the Internet Corporation for Assigned Names and Numbers (ICANN) is a non-profit corporation headquartered in Marina del Rey, California, United States. ICANN is the global (technical) regulator for unique identifiers, e.g. Internet Protocol address spaces (IPv4 and IPv6) and for the top-level domain name space (DNS root zone). Regulation is done mostly in the traditional way, e.g. by legal texts, but also by software code (named by Lessig³ as code as code).

Domain names constitute the most prominent example of this new form of regulation by authoritative texts but also technical standards. The work of dispute settlement itself is done by international organisations (WIPO) or arbitration providers (e.g. NAF). The decisions are executed internationally (by the registrars) or nationally. The decisions are rarely challenged before national courts. Thus, ICANN’s policy for domain names is highly relevant for all actors in international law.

Until 2009, ICANN’s power derived from a mandate of the US-Department of Commerce.⁴ Since 30 September 2009, the main document is the “Affirmation of Commitments (Affirmation) by the United States Department of Commerce ("DOC") and the Internet Corporation for Assigned Names and Numbers ("ICANN")”.⁵ However, the U.S. government retains control over the authoritative root zone file. The status of ICANN remains unclear; it is something between a working Multi-Stakeholder Model (ICANN) and a special model under (some) control by the US-Government.⁶

The globalisation paradox.⁷ A world government is infeasible as no proper representation of peoples can be designed and the power of such a world government could be a threat to individual liberty. The world needs more government on a global and regional scale but the centralisation of the decision-making power and execution authority is not wanted. A major problem constitutes the lack of accountability of global institutions.

Global governance. Since the 1990s, global governance is considered as an alternative to the problem of world government. The concept of governance is very broad and comprises all public and private processes of regulation.⁸ Governance describes a much less threatening concept of collective organisation and regulation with compliance but not necessarily with coercive power. The involvement of non-governmental actors enlarges the dilemma of world governance as a tri-lemma. Networks with informal and non-hierarchical structures increase the problem of accountability. Slaughter sees governmental networks as a solution for this challenge.⁹ Such networks can be horizontal among national government officials (e.g. ministers, high-level officials) or vertical by delegating authority to a supranational organisation (e.g. the ECJ and the national courts or the antitrust authorities of the EU). The effective global governance must be one with many layers of decision making – local, national, regional etc.

Public International Governance Policy: In this context, Public International Governance Policy for the Internet describes the rules, policies, standards, compliance mechanisms etc. that are relevant for global Internet policies. It can be described as a part of international economic law in the sense of Erler, e.g. including all rules for the regulation of a particular topic.¹⁰ Like in even more relevant areas of international law, e.g. global warming or financial crisis, traditional international law is too slow for establishing a regulatory framework in given time constraints. This soft law approach is much more appropriate to the multi-stakeholder model as it includes other international actors as well as endorses the strong role of States in enforcement.

Two different parts can be distinguished: technical standards and social standards. In the very field of competence of ICANN, technical standard setting, the ITU standards are well known within the ICANN community and ITU has given sufficient space for ICANN’s policies. The social standard setting is much more complex. ICANN, in particular its forerunners, had and have many problems to take sufficiently into account Public International Governance Policy on trademarks and names etc. (WIPO, WTO etc.).¹¹ It has also been noted that a harmonisation of trade mark rules, naming rules etc. on a degree required for unique naming world-wide remains an open question.

Further, Public International Governance Policy for the Internet is not defined by States alone. All relevant international actors have to participate in an intensive information-, consultation and participation process in order to find a sufficient “rough consensus”. At present, various fora exist including traditional International Organisations (UNO, ITU, WIPO, WTO, OCED, EU, Council of Europe etc.) but also International Organisations sui generis (ICANN, IGF, IETF, W3O etc.).

With the Governmental Advisory Committee, ICANN has a special body for collecting all these information and providing advice to the ICANN Board. Article III Section 6 of the ICANN Bylaws requires the Board to take on public policy due account of GAC advice. In practice, such advice takes the form of letters signed by the GAC Chair on behalf of the GAC, communiqués and submissions endorsed by the GAC, overarching "principles" documents, "issues" documents. The website of the GAC provides an overview and documentation of GAC advice and clearly demonstrates the improvements in the last years.¹²

Staff rules of ICANN. Corporate and Board governance is determined by the regulations of California. Review reports check compliance with these rules.¹³ However, it is also mentioned that binding review procedures for ICANN Board decisions or whistleblower policies are not possible due to this restrictions.

New generic Top Level Domains. Since January 11, 2012, ICANN is accepting applications for new gTLDs. The main relevant document is the Handbook for applications.¹⁴ A reason for the delay was the need to comply as much as possible with GAC advice; however, important questions on naming and trademarks remain open and may create problems in the application phase.

In general, GAC was very helpful in addressing the questions but not at finding proper solutions. Reasons may be insufficient resources of the GAC but also lack of engagement of States in the ICANN process. Further, the topic of defining Public International Governance Policy remains too complex to delegate it to an advisory body alone.

International law is an innovative legal discipline and sufficiently flexible to develop new forms of international law-making and law-shaping processes, including all relevant international actors. Internet Governance and ICANN is a good example of recent practice. The main shortcomings in this process are insufficient resources but also giving not sufficient credibility to this processes. As long as States are unwilling to take the next step and to adjust the international regime on these new tools and necessities, such processes will remain useful but not really relevant for the development of Public International Governance Policy. Hopefully, the year 2012 may show some improvements in this direction.