Protecting the Internet with international law

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Abstract

The Internet remains the odd child of international law. While forever more universal law venues such as conferences, edited volumes or research projects consider “the Internet” a peculiar, interesting aspect of its well-recognized disciplines, international scholarship fails to address the global network as a whole, stalling the application of the fully developed and well-suited international law apparatus to the global community's biggest contemporary challenge. “Internet governance” is still perceived by legal scholars as construed to international relations and, at best, a potential ground for soft law in a distant future. That is not the case: Internet governance, with all its challenges, has been shaping international law for almost two decades. The latest unveilings of the ways in which the Internet impacts global policies and laws caught the public eye with the 2018 Cambridge Analytica scandal and, previously, with the 2013 Snowden revelations, yet as surprising as they might have been to the average user, they are direct results of network's architecture and its governance model. This paper looks at the evolving concept of “Internet's public core” as an opportunity to bridge this dogmatic gap. We identify the scope and meaning of “Internet's core” and assess its legitimacy within existing international normative frameworks. We argue that the technical components crucial to the flawless operation of the global network, such as the Domain Name System and Internet's backbone networks, can be effectively protected with international law.

Section snippets

International law and the global network – facing the challenge

The Internet is an environment where international law, with all its perplexities, needs to be coherently and effectively applied. Yet current international law approach to Internet governance shows a pertaining reluctance of scholars and practitioners to embrace the challenges posed by global governance of the biggest international open electronic network. The few Internet-related works strongly rooted in international law, most predominantly the Tallinn Manual and the Tallinn Manual 2.0, have

Elements of Internet governance

Internet governance, once a purely technical exercise that later evolved to cover nearly all Internet-related activities, is now being perceived as one of many tools to enforce national policies and local laws. States reach out to operators providing core Internet services, expecting them to assist with issues of national security, crime prevention or anti-terrorist measures. This increasing trend shows a misconception of the way the network operates, putting at risk its fundamental end-to-end

Critical Internet infrastructure and “public core” of the Internet

The concept behind Internet's public core is a functional one – it aims to ensure an open and reliable Internet, free from third party influence, regardless of reasons or interests behind it. As Broeders argues, for the Internet to be considered a global public good one must “establish and disseminate an international standard stipulating that the Internet's public core”. Although ambiguous, the notion is used to describe the network's main protocols and infrastructure, “which are a global

Managing critical infrastructures and avoiding threats

The Tallinn Manual defines critical infrastructure (CI) as all systems and assets, physical and virtual, within a nation-state's jurisdiction that “are so vital that their incapacitation or destruction may debilitate a State's security, economy, public health or safety or the environment.”45 It also defines “cyber infrastructure” covering “communications, storage, and computing resources upon which computer systems

Lessons learnt from international law

International cooperation on critical infrastructure protection is not the only analogy to be drawn from existing legal frameworks. Also, for example, the concept of shared spaces, to be used by all states in a uniform, non-harmful way is not new to the international community, international relations and international law. Areas of international law that can be used for reference with regard to protecting the core of the Internet include: 1) the law of the sea; 2) air law; 3) space law; 4)

Governing the core vs the multistakeholder challenge

The academic discourse on various governance models has put Internet governance into a broader context of Global Administrative Law, drawing analogies to contracts, laws, regulations and principles within sports law, trade law or human rights law, reflecting the complex, comprehensive institutional settings.68

Recommendations and foresight – governing shared Internet resources

There seems to be little debate on the need to protect the stability and security of the “Internet's public core” seen as its protocols and standards. The short list of Internet's core resources includes 1) Internet backbone networks, 2) DNS servers, 3) IXPs and 4) TLD related services (registries and registrars). Legal tools to govern Internet's public core can be derived from general international law, in particular the principles of due diligence and state responsibility. With reference to

Declaration of Competing Interest

The authors declare that they have no known competing financial interests or personal relationships that could have appeared to influence the work reported in this paper.

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