In late February, the Internatioal Symposion on Legal Informations (IRIS 2012) took place in Salzburg. I had submitted a paper in which I briefly reassesed the Internet Governance Principle Hype of the year 2011. The paper has now been published in the Jusletter-IT.
In the contribution I argue that
2011 has seen the publication of a number of collections of Internet Governance principles and declarations of rights and principles. While having some common elements, they differ in focus an importance. In light of the progressive politicization of the Internet, 2012 must be the year to translate these principles into practice and to operationalize them. Since no common material standard can be deduced from the collections of principles authored by different stakeholder groups, 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.
Importantly, I discuss how principles can help meet the challenges of Internet Governance in 2012.
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 2011 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.
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 access 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.” 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.
I argue that the solution would be to implement the principles by applying a functional approach to International Internet Law.
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.
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.
I conclude with an outlook for 2012:
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.