|Steering Committee (CDMSI)|
|Bureau of the Committee (CDMSI-BU)|
|Former Steering Committee (CDMC)|
|Former Bureau of the Committee (CDMC-BU)|
|Rights of Internet Users|
|Legal and Human Rights Capacity Building|
|FORMER GROUPS OF SPECIALISTS|
|Public Service Media Governance|
|Protection Neighbouring Rights of Broadcasting Organisations|
|Public service Media|
hate speech - Living together on-line"
Reykjavik - Iceland
28-29 May 2009
|European Dialogue on Internet Governance (EuroDIG)|
|Committee of Ministers texts|
|Parliamentary Assembly texts|
A conceptual approach for setting a standard of care
for cross-border Internet
Discussion paper of the
Council of Europe
Ad Hoc Advisory Group on Cross-border Internet*
Workshop 6: Sovereignty of states and the role and obligations of governments in
the global multi-stakeholder Internet environment
European Dialogue on Internet Governance (EuroDIG)
28-29 April 2010
* The members of the Ad Hoc Advisory Group on Cross-border Internet are: Mark Kelly, Director of the Irish Council for Civil Liberties; Wolfgang Kleinwächter (Chair), Professor at the University of Aarhus, International Association for Media and Communication Research; Christian Singer, Director at the Department III/PT2 Telecommunications Law, Federal Ministry of Transport, Innovation and Technology of Austria; Rolf Weber, Professor, Faculty of Law, University of Zurich, GIGA net and Michael V. Yakushev (Vice-Chair), Chairman of Board, Coordination Center for the ccTLD ‘.ru’. This paper is a compilation of preliminary findings of this group which continue to be subject to its examination.
The Internet’s accessibility, stability and security has become a precondition for the enjoyment of human rights and fundamental rights, notably freedom of expression and information, privacy and freedom of assembly which are guaranteed by the European Convention on Human Rights and comparative UN standards.
Internet connectivity and stability is exposed and vulnerable to various transboundary risks of technical failures, incidents or accidents, cyber attacks or other forms of malicious use including in the context of interstate conflicts. Decisions made in the framework of transnational technical co-ordination and management of critical Internet resources, such as the IP addresses resources and the domain name space, may affect the exercise of freedom of expression and respect for privacy. Users’ access to content, services and applications of their choice may be compromised as a consequence of certain traffic management or censoring and blocking practices.
States share responsibilities to take reasonable measures to ensure the ongoing functioning and openness of the Internet. International cooperation is of paramount importance in this respect. According to the Tunis Agenda for the Information Society “[p]olicy authority for Internet-related public policy issues is the sovereign right of States. They have rights and responsibilities for international Internet-related public policy issues”1.
Under customary international law, states are under an obligation not to inflict damage or to violate the rights of other states according to a standard of due diligence, which requires them to take all appropriate measures at their disposal to prevent and minimise foreseeable significant transboundary harm.
States have possibilities and responsibilities for preventing and managing transboundary harm to Internet connectivity, stability and security and also acts affecting users’ access to content, under a due diligence standard of conduct. This demands assessment of the harmful impact that activities under the control or within the jurisdiction of a country may have for another, notification and exchange of information, consultations aimed at reaching equitable solutions, co-operation on mitigation as well as mutual assistance. States have a duty to do the best they can to ensure the delivery of the public service value of the Internet to persons within their jurisdictions.
The customary principle of the prohibition of transboundary harm, which imposes a duty to prevent and minimise damage with due diligence, should be adopted and made operational in international Internet law.
Its legal content should be determined for specific activities and risks and based upon the criteria of forseeability and proportionality of response to national circumstances and risks involved as well as the capacity of a state to prevent possible damage.
I. Council of Europe work on cross-border Internet
The ministers responsible for media and new communication services participating in the Reykjavik Conference in May 2009 adopted a Resolution on Internet governance and critical Internet resources (Appendix) which recalls the obligation and commitment of member states to secure to everyone within their jurisdiction their fundamental rights and freedoms contained in the European Convention on Human Rights (ECHR). In this context, they underlined the importance of freedom of expression and information regardless of frontiers while at the same time stressing that access to the Internet is an important means by which large numbers of users are able to fully exercise and benefit from this right. They added that acts or events which could block or significantly impede Internet access to or within fellow members of the international community may have significant implications under Article 10 of the ECHR, which guarantees the right to freedom of expression and information.
The Resolution refers to a shared responsibility of Council of Europe member states to take reasonable measures through multi-lateral cooperation to ensure the ongoing functioning of the Internet and, in consequence, the delivery of the public service to which all persons under their jurisdiction are entitled. On this basis, the participating ministers called on all state and non-state actors to explore ways to ensure that critical Internet resources are managed in the public interest, and as a public asset, in full respect of international law, including human rights law. This could include, if appropriate, international supervision and accountability of the management of those resources.
In response to these proposals, the Committee of Ministers invited the competent intergovernmental cooperation body, the Steering Committee on the Media and New Communication Services (CDMC), to give priority attention to the elaboration of legal instruments designed (i) to preserve or reinforce the protection of the cross-border flow of Internet traffic and (ii) to protect resources which are critical for the ongoing functioning and borderless nature and integrity of the Internet (i.e. critical internet resources).
In this connection, an Ad-hoc Advisory Group on Cross-border Internet (MC-S-CI) was established reporting to the CDMC. This Group is made up of selected Internet governance experts, including government, industry, civil society and academia and has been mandated to consider and make proposals on these matters.
The present paper juxtaposes a number of issues related to the protection of critical Internet resources and cross-border flow of the Internet with relevant principles of customary international law. It posits that states have a key role to play in preventing transboundary harm to Internet connectivity, stability and security as well as acts affecting users’ access to content, under a due diligence standard of conduct.
This standard of care extends to necessary steps to ensure that decisions on the management of critical resources made by non-state actors operating within their respective jurisdictions observe international law, including relevant principles of customary law, and standards on fundamental rights and freedoms.
The affirmations and goals of the Tunis Agenda for the Information Society, in particular with respect to the definition of Internet governance, multistakeholderism, as well as the responsibilities for international Internet-related public policy issues, are highly relevant for this conceptual approach.
The MC-S-CI recommends that the customary law principle of the prohibition of transboundary harm, containing a primary obligation to prevent and minimise risk of damage with due diligence, should be adopted and made operational in international Internet law. The actual commitments that this standard of care encompasses should be defined for specific risks and activities and according to the criteria of forseeability and proportionality of response to circumstances and degree of risk involved and based on the capacity of a state to prevent possible damage.
II. Issues related to the protection of critical Internet resources Stability and security of the Internet infrastructure
The underlying physical infrastructure of the Internet is exposed to vulnerabilities and threats of technical failure and accidents. Preventive and preparedness measures for technical failures of the network infrastructure and backbone, risks or accidents as well as mitigation of and response to their effects are of paramount importance.
The root server system as it is currently organised, using anycast service, has worked efficiently and is generally trusted. Nevertheless, there are no arrangements to ensure a political commitment that there will be no interference with the root servers and that they will continue to function of the public interest.
States can play a role in promoting the interoperability of servers located within their jurisdictions as well as in the development of confidence building measures aimed at achieving enhanced interaction among stakeholders through formal and informal meetings, exchanges of information, consultations and other forms of cooperation.
The signing authority over the root zone file is distributed among different actors. For historical reasons only one government is involved. Uncoordinated root signing combined with failure to properly implement root management procedures may result in non-secure or unstable operation of the Internet root zone and ultimately affect the ability of people in different jurisdictions to have access to the Internet content.
Routes between hosts have no systematic security or authentication. Insecure routing creates vulnerability of access to Internet content across borders. There are also practices of surveillance of routing tables/announcements which raise concerns for protection of privacy in Internet communications.
Against this background, it is very important that a state assesses the impact that acts controlled by it or taking place within its jurisdiction may have for the connectivity and stability of the Internet in another country. Moreover, a state should engage in exchange of information, consultation on preventive measures, and co-operation with fellow members of the international community.
Unequal geographical distribution of Internet Exchange Points (IXPs) results in routing of local traffic over expensive international links and therefore application of high interconnection costs for Internet Service Providers (IPSs) based in countries remote to IXPs. Co-operation among states is desirable in order to promote the optimal and sustainable utilisation of the Internet backbone taking into account mutual interests.
Questions: In customary international law, states are required to take all appropriate measures to assess risk of transboundary harm, exchange information, consult on preventive measures and co-operate with each other. How does this standard of care apply to specific risks for the stability and security of the Internet and protection of resources that are critical for the ongoing functioning of the Internet? How can states co-operate with ISPs in order to improve the stability and security of the Internet?
Transnational management of critical Internet resources
IP addresses can be used as identifiers of Internet users as well as for profiling their activities. Migration to Internet Protocol Version 6 (IPv6) poses serious challenges for seamless communication on the Internet. Having regard of the role that states can play in promoting transition to IPv6 and the responsibility to protect citizens’ privacy incumbent upon them, the MC-S-CI has proposed to the CDMC to submit to the Committee of Ministers of the Council of Europe for adoption a draft declaration on the management of IP address resources in the public interest.
As the role of Regional Internet Registries (RIRs) with respect to issues of IPv4 address scarcity and secure routing increases, their policy decisions concerning the management of Internet address resources become crucial for the exercise of freedom of expression and information and protection of privacy on the Internet2.
The allocation of new generic Top Level Domains (gTLDs) and Internationalised Domain Names (IDNs) may have a bearing on expression that is protected by Article 10 of the ECHR (e.g. decision on names to be admitted to the name space) or on the exercise of freedom of assembly (e.g. allocation of gTLDs to local, regional, religious or other communities). Proposals for new gTLDs can create international tensions where political or other societal sensitivities are involved. Access to information may be at stake where IDNs are used to replace existing Internet resources rather than increase possibilities for communication and availability of information.
The information contained in the WHOIS databases is available to and accessible by anyone who has an interest in it. This has implications as regards the privacy of Internet users. There are no generally accepted principles of protection of information available in these databases. Having regard to the role that states can play to promote respect for human rights and fundamental principles in the framework of ICANN’s Governmental Advisory Committee (GAC), the MC-S-CI has proposed to the CDMC to submit to the Committee of Ministers a draft declaration encouraging Council of Europe member states’ active participation in GAC for adoption.
The principle for the administration of the Internet naming system in the common public interest and the duty of a ccTLD manager to serve the local Internet community is not spelled out in international law3. There are no common governance criteria for ccTLDs.
Thus, human rights and fundamental freedoms stand at the crossing of public policy authority, incumbent on states, and technical coordination and resource management of the domain name space and IP address space, incumbent upon private operators.
Questions: How can the neutrality of the IP address space and DNS space be guaranteed? What roles can or should states play in that regard? Should states commit to promote the development of technical co-ordination policy frameworks that observe human rights and fundamental freedoms?
Prevention and management of cross-border wrongful acts
Critical Internet infrastructure can be interfered with, damaged, or destroyed by deliberate cross-border acts of cyber-attacks or terrorism, computer hacking (logic bombs, botnets, command and control systems, distributed denial of service (DDoS) attacks, viruses, Trojan horses, cracks, sniffers and others) and other forms of malicious behaviour as well as by natural disasters, negligence, accidents and technical failure.
The most noteworthy European hacking attack has been the DDoS attacks on Estonia in April/ May 2007. Technical failures such as the case of the submarine cable system in the Mediterranean Sea, which blocked around 70 % of Internet traffic in Egypt may happen again in the future. Risks could also arise in cases of interstate conflict attempts to block a country’s Internet resources. A recent example was that in context the conflict between the Russian Federation and Georgia. Allegedly, the situation in those countries had an impact on the Internet access in at least another country Armenia.
Within the EU there are a number of initiatives that show the need for interstate co-operation in these matters4.
However, a primary obligation of states to take all appropriate measures to prevent damage of critical internet resources of another country as well as related duties on information exchange, co-operation and mutual assistance are not spelled out in international law.
Questions: Under customary international law, states should not inflict damage on or violate the rights of other states. This principle contains an obligation not to cause harm, to prevent foreseeable risk of damage and to minimise risk thereof. Where activity by private actors is concerned, the concept of due diligence, or standard of care, is evoked as a test to examine the conduct that is required. How do these principles apply to the prevention or control of transboundary harm to Internet resources? What concrete actions would have to be initiated by states?
III. Issues related to the preservation and protection of cross-border flow of Internet traffic openness and neutrality
Internet was designed in a way that keeps the “core simple” while leaving the performance of functionalities (authentification, encryption, applications and others) to the edges of the network5. This principle of design is understood as the end-to-end principle. According to this principle Internet users should be able to have access to content and services of their choice. Also, competitive markets and innovation at the applications level are promoted.
Traffic management, when used for anti-competitive practices such as unfair and non-transparent prioritisation or slowing of specific traffic may have implications for access to content and the added value that the end-to-end principle brings to the society in terms of innovation opportunities. The interference with the enjoyment of freedom of expression will be more manifest in extreme cases of traffic management techniques used for purposes of censoring or blocking content. It is against this background that concerns have been raised about preserving the openness and net neutrality in the public interest.
Certain aspects of net neutrality are dealt with in the regulatory framework of the EU6. Net neutrality has been embraced in several countries as for example Norway7 and the U.S.A8. “But as a normative guide to policy, network neutrality transcends domestic politics […] Because Internet connectivity does not conform to national borders, net neutrality is really a globally applicable principle that can guide Internet governance.”9
States can play a key role in implementing regulatory requirements for the management of Internet traffic within the limits of international law on human rights, notably Article 10 and Article 14 (prohibition of discrimination) of the ECHR, within the margins of public interest as well as in ensuring proper remedies where users’ right to access to information if affected.
Questions: Based on their obligation to secure freedom of expression as protected by Article 10 and prohibition of discrimination guaranteed by Article 14 of the ECHR, states should embrace net neutrality (defined in line with the end-to-end principle) as a norm guiding principle for their national policies. Which policies support the net neutrality principle? What are the transparency and public interest requirements for traffic management and what remedies should be available for users?
IV Principles and aspects of international law on transboundary harm Equitable and reasonable use of critical resources
Physical interdependencies in respect of critical natural resources have traditionally given rise to principles of reciprocity and good neighbourliness in inter-state relations. The notion of equitable and reasonable use of critical resources is widely accepted in international environmental law10. This principle can be seen as a part of an international ordre public based on a normative understanding of common interests of the entire society. “The neighbourship doctrine obliges a State to preserve and protect the ecosystem, not out of goodness, but out of self-interest and reciprocity.” 11
The most significant developments in the law of state responsibility have taken place in respect of environmental protection. The obligation of a state to ensure that activities within its territory or its jurisdiction do not cause damage to other states was derived from the application of general principles of law such as the principle sic utere tuo ut alienum non laedas, dictating that ‘one should use his own property in such a manner as not to injure that of another”12. This principle, also known as the no-harm rule, was integrated in international law and contributed to the development of a broader and more general framework of the law of state responsibility for transboundary harm13.
Today, state practice, judicial decisions and international legal literature are in unanimity as regards the existence of the principle that an internationally wrongful act of a state engages the responsibility of that state. According to the International Law Commission (ILC) codification of international law of state responsibility“[e]very internationally wrongful act of a State entails the international responsibility of that State”, and “there is an internationally wrongful act of a State when conduct consisting of an act or omission (a) [i]s attributable to the State under international law; and (b) [c]onstitutes a breach of an international obligation of the State.”14
International law has been exploring different regimes of state responsibility in the context of environmental protection. They vary from a fault-based regime of responsibility for wrongful acts (willful and negligent conduct including breach of due diligence obligations regarding prevention); objective responsibility for breach of international obligations of result (e.g. obligation not to pollute) and “liability without wrongful act arising from lawful activities on the basis of the mere causal link between activities and damage done”15. Most instruments of contemporary international environmental law set forth general commitments of cooperation1 6 or an obligation to take appropriate and reasonable measures to prevent, control and reduce pollution17.
Fault is not considered a necessary condition for state responsibility for wrongful acts unless it is an element of primary underlying obligations18. Moreover, fault or negligence have lost their importance in cases when inherently hazardous activities are involved – state responsibility will be engaged for acts that are not unlawful in nature19.
An important consequence of these approaches could be that objective responsibility can provide the conceptual and normative model for state responsibility of states in future conventional regimes20.
Prevention, management and mitigation of transboundary harm
International law seeks to minimise transboundary harm by constructing duties of prevention of foreseeable risk of harm, cooperation and assistance, risk assessment notification and information, consultation, emergency preparedness and others21. Prevention is considered to be a better policy than reparation because ex post facto remedies cannot restore the situation prior to an event or accident and because the availability of knowledge regarding hazardous activities and the enhanced ability to trace the chain of causation enables and makes it imperative that the duty of prevention be exercised22.
In the field of environmental protection, because of inherent limitations of compensatory liability regimes (mostly related to litigation and dispute settlement), international regulation on marine pollution, pollution of international rivers and lakes, atmospheric pollution and protection and conservation of fauna and flora places emphasis on preventive, management and mitigation measures rather than reparation23. Conventional and customary law elaborate international preventive obligations relating to the protection of the environment and corresponding duties of states, which include cooperation in scientific research, systematic observations and assistance, exchange of information, notification of risks, environmental impact assessment, consultation, risk assessment, warning and emergency assistance, emergency preparedness and mutual assistance24.
Preventive action is a key feature of international law on the fight against terrorism. The 1999 International Convention for the Suppression of the Financing of Terrorism and the 2005 Council of Europe Convention on the Prevention of Terrorism both contain a duty of parties to cooperate in the prevention of terrorist offences.
The due diligence standard
Making the best possible efforts to prevent harm or injury to other countries or their nationals has been traditionally the expected and demanded state conduct with regard to activities of non-state actors in a number of areas including protection of human rights and prevention of gross violations, protection of foreign nationals and investment and protection of the environment25. The standard of due diligence against which the conduct of a state is examined is that which is generally considered to be appropriate and proportional to the degree of risk of transboundary harm in the particular instance and that which takes into account the criterion of harm forseeability.26
International human rights law is probably the most exemplary area where the duty of states to protect individuals from non-state abuse is well-established and has been long recognised. “The duty requires states to play a key role in regulating and adjudicating abuse by business enterprises or risk breaching their international obligations”27. According to the European Convention on Human Rights, states are under an obligation not only to refrain from acts violating the rights and freedoms guaranteed by it but also to take positive action to protect them. 28 The notion of positive obligations, requiring that the state concerned adopt reasonable measures to prevent violations of rights and to investigate, prosecute and punish perpetrators is well-established in the jurisprudence of the European Court of Human Rights29. Such positive obligations arise irrespective of whether the violation is committed by state or non-state actors30.
Stakeholders ’ participation
Although treaties continue to be considered as interstate agreements, private and non-governmental organisations participate along with states in the development of conventional international law in the field of environment protection. The principle of participation of the public, non-governmental organisations in policy development and action aimed at tackling environmental issues is included in the Rio Declaration on Environment and Development31 and Agenda 2132.
The conventional practice and requirements concerning the involvement of non-governmental players in environmental matters vary from an observer role in meetings of the conventional bodies (minimum standard in all conventions) and participation in national planning and decision-making processes, to empowering civil society and the private sector to participate in decision-making and monitoring processes as well as to take legal action to defend their environment (the Aarhaus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters )33.
Such procedural guarantees for access and participation of private actors and non-governmental organisations are capable of yielding considerable benefits, in particular with respect to policy research and development, monitoring parties and delegations in the international law-making processes, international negotiation processes as well as in the implementation of state commitments and monitoring in this respect34.
Questions: Under customary international law, states are under the obligation not to inflict damage on or violate the rights of other states. This rule contains an obligation not to cause harm, to prevent foreseeable risk of damage and to minimise risk thereof. Where activity by private actors is concerned, the concept of due diligence, or standard of care, is evoked as a test to evaluate the conduct that is required. The term due diligence has been described as the conduct that can be expected of a good government. Acting with due care imposes on a State a duty to take all necessary measures at its disposal to prevent significant harm. What is the legal meaning of the due diligence concept in relation to specific activities and risks related to the protection of critical Internet resources and cross-border flow of the Internet? Which new elements of state responsibility in the field of transboundary Internet traffic are to be introduced?
The international law on state responsibility offers concepts and principles that can and should be applied to transboundary risks for the protection of critical Internet resources and cross-border flow of the Internet.
Customary international law supports prohibition on causing transboundary harm. States are under an obligation not to inflict damage or to violate the rights of other states. International treaty law seeks to prevent and minimise transboundary harm by constructing duties regarding prevention of foreseeable harm and mitigation.
Where the activity of private actors is concerned, the concept of due diligence, or the standard of care, is evoked as a test to assess the conduct that is expected and demanded of a state. Acting with due care imposes on a state a duty to do all it can, or in other words, to take all appropriate measures at its disposal to prevent and minimise foreseeable significant transboundary harm.
Every activity of a state, in conjunction with stakeholders, to assess the risk of damage to Internet connectivity, stability and security, to reach equitable solutions through consultation with other members of the international community, to take preventive measures, to co-operate, exchange information on risk assessment, engage in mitigation and mutual assistance is an appropriate and necessary endeavour to reduce the risk of damage. Therefore, every state has the opportunity and duty to act.
A state is expected and should be demanded by the international community of stakeholders to do the best it can to prevent damage under a due diligence standard of care. Therefore, it is recommended that the customary principle of the prohibition of transboundary harm, which imposes a duty to prevent and minimise damage with due diligence should be formally adopted and made operational in international Internet law. Its legal content should be determined for specific activities and risks according to the criteria of forseeability and proportionality of response. The measures that a state should take should be determined in proportion to national circumstances and risks involved as well as the capacity of a state to prevent possible damage.
1 Tunis Agenda for the Information Society, paragraph 35 a.
2 Milton Mueller, Brenden Kuerbis, Michel van Eeten, Regional Address Registries, Governance and Internet Freedom, Internet Governance Project 26 November 2008, available at http://www.internetgovernance.org/pdf/RIRs-IGP-hyderabad.pdf “The RIR’s management of Internet address resources is becoming more contentious and more central to global debates over Internet governance. This is happening because of two transformational problems: 1) the depletion of the IPv4 address space; and 2) the attempt to introduce more security into the Internet routing system. We call these problems “transformational” because they raise the stakes of the RIR’s policy decisions, make RIR processes more formal and institutionalized, and have the potential to create new, more centralized control mechanisms over Internet service providers and users. A danger in this transition is that the higher stakes and centralized control mechanisms become magnets for political contention, just as ICANN’s control of the DNS root did. In order to avoid a repeat of the problems of ICANN, we need to think carefully about the relationship between RIRs, governments, and Internet freedom. In particular, we need to shield RIRs from interference by national governments, and strengthen and institutionalize their status as neutral technical coordinators with limited influence over other areas of Internet governance.”
3 The GAC principles and guidelines for the delegation of ccTLDs state that “the Internet naming system is a public resource in the sense that its functions must be administered in the public or common interest” and specify that a ccTLD manager “has a duty to serve the local Internet community as well as the global Internet community.”
4 The Communication on Critical Information Infrastructure Protection COM(2009) 149 advocates for the promotion of a security and resilience culture protecting Europe from large scale cyber-attacks and disruption. The related Action Plan (backed by the Tallinn Ministerial Conference of April 2009) addresses five pillars to be built until the end of 2010. Other efforts have been made in several projects to face the challenges of pan-European interoperability of electronic authentication and to access the feasibility of differing approaches. The European Network and Information Security Agency seeks to ensure a high level of network and information security in the EU by giving expert advice on network and information security to national authorities and EU institutions, acting as a forum for sharing best practice and facilitating contacts between EU institutions, national authorities and businesses.
5 Lawrence Lessing (2006), Code version 2.0, at pg. 44.
6 Directive 2009/140/EC, Article 1; Commission Declaration on Net Neutrality, OJ L337/47, 18. 12. 2009.
7 Guidelines for Internet Neutrality, version 0.1, 24 February 2009. These guidelines were drawn up by the Norwegian Post and Telecommunications Authority in collaboration with various industry players, such as Internet service providers, industry organisations, content providers and consumer protection agencies.
8 Policy Statement of the Federal Communications Commission, FCC 05-15 1, adopted on 5 August 2005.
9 Net Neutrality as a Global Principle for Internet Governance, Internet Governance Project, 5 November 2007, drafter Milton Mueller, concurring Derrick Cogburn, John Mathiason, Jeanette Hofmann, available at http://www.internetgovernance.org/pdf/NetNeutralityGlobalPrinciple.pdf
10 The 1997 UN Convention on the Law on the Non-navigational Uses of International Watercourses, Art. 5 para. 1 and para. 2; the 1994 UN Convention on the Law of the Sea, Articles 61 para.2, 62 para.1, 69 para. 1, 118, 119. (U.N. Doc. A/CONF.62/122); the Kyoto Protocol to the United Nations Framework Convention on Climate Change of 1992 refers to the importance of appropriate burden sharing among developed countries Art. 11 para. 2 (b); the 1992 Convention on the Transboundary Effects of Industrial Accidents of 1992.
11 Charles Odidi Okidi, “ Preservation and Protection” Under the 1991 ILC Draft Articles on the Law of International Water-courses, 3 Columbia Journal of International Environmental Law & Policy 143, 144-45, 149, 155-72 (1992).
12 The 1938 Trail Smelter Arbitration (United States v. Canada) confirmed the duty of a state to protect other states against injurious acts by individuals within its jurisdiction; in the 1949 Corfu Channel case (UK v. Albania) the ICJ stated the obligation of a state not to knowingly allow its territory to be used contrary to the rights of other states; the 1957 Lac Lanoux Arbitration (France v. Spain) stated the obligation of a state to take all necessary measures to prevent transboundary damage.
13 The most notable example is Principle 21 of the 1972 Stockholm Declaration, which affirms on one hand states' sovereign rights relating to the exploitation of resources pursuant to their national
environmental policies and on the other the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.This principle has been adopted in other treaties including the 1979 Convention on Long-Range Transboundary Air Pollution, the IAEA Conventions on Notification and Assistance in the case of Nuclear Accident, the EEC environmental policy adopted in 1973, and other international instruments.
14 The ILC Articles on State Responsibility are annexed to the UN General Assembly Resolution Responsibility of States for Internationally Wrongful Acts, GA. Res. 56/83, U.N.Doc. A/RES/56/83 (12 December 2001), see Articles 1 and 2.
15 Riccardo Pisillo Mazzeschi, Forms of International Responsibility for Environmental Harm, in International Responsibility for Environmental Harm 15, 16-17 (Francesco Francioni & Tullio Scovazzi eds., 1991).
16 The 1979 Geneva Convention on Long Range Transboundary Air Pollution, the 1982 Vienna Convention for the Protection of the Ozone Layer.
17 The 1997 UN Convention o the Law on the non-navigational Uses of International Watercourses; the 1992 Convention on the Transboundary Effects of Industrial Accidents.
18 ILC Articles on Responsibility of States for Internationally Wrongful Acts 2001, commentary of Article 2, paragraph (3) “Whether responsibility is “objective” or “subjective” in this sense depends on the circumstances, including the content of the primary obligation in question. The articles lay down no general rule in that regard. The same is true of other standards, whether they involve some degree of fault, culpability, negligence or want of due diligence. Such standards vary from one context to another for reasons which essentially relate to the object and purpose of the treaty provision or other rule giving rise to the primary obligation.”
19 ILC Articles on Prevention of Transboundary Harm from Hazardous Activities adopted in 2001, U.N. Doc. A/56/10 Supp. No. 10 (2001).
20Francisco Orrego Vicuńna, State Responsibility, Liability, and Remedial Measures under International Law: New Criteria for Environmental Protection, in Environmental Change and International Law: New Challenges and Dimensions, United Nations University Press 1992, available at http://www.unu.edu/unupress/unupbooks/uu25ee/uu25ee0g.htm#11 .%20the%20new%20law%20of%20stat e%20responsibility:%20improvement%20and%20caution
21Supra note 19, Articles 3, 4, 8, 9 and 16.
22 Idem, general commentary, paragraph 2.
23 Peider Könz, Law And Global Environmental Management: Some Open Issues, in Environmental Change and International Law: New Challenges and Dimensions, United Nations University Press 1992, available at
24Toru Iwama, Emerging Principles and Rules for the Prevention and Mitigation of Environmental Harm, in Environmental Change and International Law: New Challenges and Dimensions, United Nations University Press 1992, available at
25 Barnidge, Robert Perry, The Due Diligence Principle Under International Law (2006), International Community Law Review, Vol. 8, No. 1, pp. 81-121, 2006. Available at SSRN:
26 Supra note 19, Article 1 commentary, para.1 1; 14, Article 3 para.5.
27 U.N. Report on Human Rights, prepared by the Special Representative of the Secretary-General, Feb. 19, 2007, UN Doc. A/HRC/4/35, para. 18.
28 Rolf H. Weber, “New Sovereignty Concepts in the Age of Internet?” forthcoming publication in the Journal of Internet Law.
29 Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, p. 3164, § 116; A. v. the United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, § 22; Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V.
30 Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, p. 3164, § 128; A. v. the United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, p.
2699, § 22; Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 73-75, ECHR 2001-V; and E. and Others v. the United Kingdom, no. 33218/96, 26 November 2002; Calvelli and Ciglio v. Italy [GC], no. 32967/96, ECHR 2002-IX and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, pp. 11-13, §§ 23-24 and 27, and August v. the United Kingdom (dec.), no. 36505/02, 21 January 2003; M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003-XII; § 151.
31 Rio Declaration on Environment and Development, adopted by the U.N. Conference on Environment and Development (UNCED), U.N. Doc A/CONF.151/26 (1992), see principle 10.
32 Agenda 21, approved by the U.N. Conference on Environment and Development (UNCED). U.N. Doc A/CONF. 15 1/4 (1992), see paragraphs 27.12 and 38.43.
33 Marc Pallemaerts, Marlčne Moreau, The Role of “Stakeholders” in International Environmental Governance, Draft Version N° 07/2004, available at http://www.iddri.org/Publications/Collections/Ideespour-le-debat/id_0407bis_pallemaerts&moreau-_eng.pdf
34 Kal Raustiala, The ‘Participatory Revolution’ in International Environmental Law, 21 Harvard Environmental Law Review, 537, 538, 549, 551, 558-6 1 (1997).
Internet governance and critical Internet resources
The ministers of states participating in the 1st Council of Europe Conference of Ministers responsible for Media and New Communication Services, held in Reykjavik on 28 and 29 May 2009, adopt the following resolution:
1. Fundamental rights and Council of Europe standards and values apply to online information and communication services as much as they do to the offline world. This stems, inter alia, from Article 1 of the European Convention on Human Rights whereby member states undertake to “secure to everyone within their jurisdiction” the rights and freedoms protected by the Convention (without the online/offline distinction). This approach has been confirmed in a number of Council of Europe standard-setting instruments.
2. Member states can be held to account for the rights involved before the European Court of Human Rights. The very nature of the information society and, to an even greater extent, of the Internet, has significant cross-border implications. Article 10 of the European Convention on Human Rights is especially relevant in this respect given that the rights and freedoms protected therein are guaranteed “regardless of frontiers”.
3. The question of fundamental rights online is compounded by users’ significant reliance on the Internet as an essential tool for their everyday activities (communication, information, knowledge, commercial transactions, leisure). As recalled in paragraph 5 of the preceding political declaration, this has led the Committee of Ministers of the Council of Europe to recognise the public service value of the Internet. People have a legitimate expectation that Internet services should be accessible and affordable, secure, reliable and ongoing. The notion of positive obligations developed in the case law of the European Court of Human Rights is particularly relevant in this context.
4. Various entities and persons, some state but mostly non-state actors, have contributed over the last few decades to shaping the development and use of the Internet. Their goodwill and ongoing efforts to promote the universality of the Internet and to ensure the robustness and resilience of its networks should also be acknowledged and welcomed. They are contributing to the Internet’s safety, stability and continued functioning while helping to unleash economic potential and develop democratic processes.
5. The Internet relies on a variety of resources which are indispensable for its functioning and which, because of their very nature, can at any one time have a considerable impact on the ability of large numbers of users to access or fully benefit from the Internet. These critical resources include, for example, 13 so-called “root servers” (which permit the routing of most information and communications on the Internet) and the Internet’s backbone structures (large-scale channels for data transit) which are controlled by a variety of government authorities, including re-designated defence agencies, academic institutions and private/business entities.
6. The Internet Corporation for Assigned Names and Numbers (ICANN), a not-for-profit entity established in 1998 under the laws of the State of California, in the United States of America, is also a key component in managing the technical management of critical Internet resources worldwide. Although its constitutional documents and by-laws require it to co-operate with relevant international organisations and to carry out its activities in conformity with relevant principles of international law and applicable international conventions and local law, there are no related formal accountability arrangements.
7. The borderless and universal nature of the Internet depends, inter alia, on arrangements that ensure full compatibility or interoperability. The use of different alphabets should not represent an obstacle to the enjoyment of the rights and freedoms protected under Article 10 of the European Convention on Human Rights “regardless of frontiers”. Equally, choices made in respect of Transmission Control Protocols/Internet Protocols (TCP/IP) should not lead to fragmentation or barriers to seamless communication.
8. Council of Europe member states share the responsibility to take reasonable measures to ensure the ongoing functioning of the Internet and, in consequence, of the delivery of the public service value to which all persons under their jurisdiction are entitled. Interstate co-operation and solidarity is of paramount importance to the proper functioning, stability and universality of the Internet. By working together, member states can help each other to prevent or manage events, including malicious acts, falling within their jurisdictions or territories, which could block or significantly impede Internet access to or within fellow members of the international community. Such events may have significant implications on Article 10 of the European Convention on Human Rights.
9. In their standard-setting work, member states are inspired by the Tunis Agenda for the information society and the United Nations-led Internet Governance Forum (IGF) which facilitates the development and application of shared principles, norms, rules, decision-making procedures and programmes that shape the evolution and use of the Internet by governments, the private sector and civil society in their respective roles. Internet governance is an example of organisational innovation and mutual adaptation between society and technology around the world in pursuit of the objective of ensuring the openness and neutrality of the Internet.
10. Pan-European discussions on Internet governance are also important for member states. European Union directives and communications on information society matters, including the European Parliament Resolution on the second Internet Governance Forum, held in Rio de Janeiro from 12 to 15 November 2007, which encourages the organisation of a “European IGF”, provide an important starting point for such dialogue. Among other initiatives, the European Dialogue on Internet Governance (EuroDIG) is a welcome arrangement that responds to this need.
11. We therefore:
Support Pan-European efforts for enhanced co-operation on Internet governance, having due regard to the Council of Europe’s values and standards on human rights, democracy and the rule of law, and the need for a multi-stakeholder approach to it;
Welcome, in this connection, the steps taken by the Council of Europe to facilitate, in co-operation with other stakeholders, the organisation of IGF-like meetings at the pan-European level and ask the Council of Europe to make more lasting arrangements for dialogue on Internet governance;
Call on all state and non-state actors to explore ways, building upon current arrangements, to ensure that critical Internet resources are managed in the public interest and as a public asset, ensuring the delivery of public service value, in full respect of international law, including human rights law;
Call also on these actors to ensure full compatibility and interoperability of TCP/IP so as to guarantee the ongoing universal nature and integrity of the Internet;
Invite the Council of Europe to explore the feasibility of elaborating an instrument designed to preserve or reinforce the protection of the cross-border flow of Internet traffic;
Undertake to explore further the relevance of Council of Europe values and, if necessary, ways in which to provide advice to the various corporations, agencies and entities that manage critical Internet resources that have a trans-national function in order for decisions to take full account of international law including international human rights law and, if appropriate, to promote international supervision and accountability of the management of those resources.