LEGAL INSTRUMENTS

There is a wide variety of legal instruments that has either already been applied or could be applied to Internet Governance:

NATIONAL AND COMMUNITY LEGAL INSTRUMENTS

Legislation Every piece of legislation consists of rules and sanctions. Rules stipulate certain accepted behaviours (do not commit a crime, pay your ta es! and sanctions specify punishments in case the rules are not observed (e.g., fines, imprisonment, the death penalty!. "egislative activities have progressively intensified in the field of the Internet. #owever, one must notice that society is dynamic and legislation always lags behind change.

Social Norms (Customs) "i$e legislation, social norms prescribe certain behaviour. %nli$e legislation, no state power enforces those norms. They are enforced by the community through peer&to&peer pressure. In the early days of the Internet, its use was ruled by a set of social norms labelled 'neti(uette,) where peer&pressure and e clusion were the main sanctions.

Sel !Regulation *elf&regulation has elements in common with previously described social norms. The main difference is that unli$e social norms, which typically involve a diffuse regulatory system, self& regulation is based on an intentional and well&organised approach.*elf&regulation rules are usually codified in codes of practice or good conduct.

"uris#ru$ence +recedents create law, especially in cases involving the regulation of new issues, such as the Internet. ,udges have to decide cases even if they do not have the necessary tools - legal rules. The first legal tool .udges use is legal analogy, where something new is related to something familiar.

INTERNATIONAL LEGAL INSTRUMENTS

T%e Di erence &et'een International (ri)ate La' an$ International (u&lic La' The need for the use of international law is fre(uently raised in Internet Governance discussions. The term international law is mainly used as a synonym for international public law, established by nation states and international organisations, usually through the adoption of treaties and conventions. #owever, most possible international legal cases regarding the

Internet include a strong private law feature, involving such issues as contracts and torts. In dealing with such issues, there is a need to use international private law. The rules of international private law are stipulated in national legislation, not in international treaties./ *0 The rules of international private law specify the criteria for establishing applicable .urisdiction and law in legal cases with foreign elements (e.g., legal relations involving two or more entities from different countries!. The criteria for identifying the applicable .urisdiction and law include the lin$ between an individual and national .urisdiction (e.g., nationality, domicile! or the lin$ between a particular transaction and national .urisdiction (e.g., where the contract was concluded, where the e change too$ place!.

International (ri)ate La' Given the global nature of the Internet, legal disputes involving individuals and institutions from different national .urisdictions are very fre(uent. #owever, only rarely has international private law been used for settling Internet&based issues, possibly because its1 procedures are usually comple , slow, and e pensive. The main mechanisms of international private law developed at a time when cross&border interaction was less fre(uent and intensive and proportionally fewer cases involved individuals and entities from different .urisdictions.

International (u&lic La' International public law regulates relations between nation states. *ome international public law instruments already deal with areas of relevance to Internet Governance (e.g. telecommunication regulations, human rights, international trade!. It remains to be seen if international public law will be used more intensively in the field of Internet Governance. In this part, the analysis will focus on the elements of international public law that could be used in the field of Internet Governance, including treaties and conventions , customs, 'soft law,) and ius cogens.

Treaties an$ Con)entions 2urrently, the only convention that deals directly with Internet&related issues is the 2ouncil of Europe 2ybercrime 2onvention. #owever, many other international legal instruments address broader aspects of Internet Governance (e.g. human rights, trade, intellectual property rights!. . 3uring 4GIG discussions in 5667, the Internet Governance +ro.ect proposed the adoption of a %8 9ramewor$ 2onvention on Internet Governance./ +0 The 'framewor$&protocol) approach consists of the framewor$ convention, which provides general principles, and subse(uent protocols that provide more specific regulation./ ,0 *uch proposal rests on the analogy with the %8 9ramewor$ 2onvention on 2limate 2hange (%89222!. The following similarities between climate change and the Internet were underlined: involvement of a broad range of actors, including non&governmental organisations: a broad agreement on principles and norms: and a need to establish procedures for dealing with future issues. #owever, analogies are usually tric$y. They higlight commonalities and hide differences. In the case of analogy between climate change and Internet governance there are numerous differencies including: a. Regulatory area (Issues to be addressed! ;rticle 5 of the %89222 clearly defines the single issue to be addressed by the %89222: <.... stabili=ation of greenhouse gas concentrations in the atmosphere at alevel that would prevent dangerous anthropogenic interference with theclimate system.....< It is difficult to define Internet Governance as regulatory area (e.g. list of isues that should be regulated on international level!.

b. >ultista$eholderism The ma.or difference between negotiations regarding Internet Governance(narrow definition! and other global negotiations, such as climate changenegotiations, is that, while in other negotiations, inter&governmentalregimes gradually opened to non&governmental players, in Internet governancenegotiations, governments had to enter an already e isting non& governmental,I2;88&based regime. I am not sure that the 92 can be the most suitable meansfor reflecting this substantive difference. *o far the proposal for a 9ramewor$ 2onventon on the Internet has not attracted broad support. It is supported by some civil society organisations. Governments have been reluctant to move into this direction. received limited bac$ing from civil society.

International Customar- La' 3evelopment of customary rules includes two elements: general practice (consuetudo! and recognition that such practice is legally binding (opinio .uris!. It usually re(uires a lengthy time& span for the crystallisation of general practice. *ome elements of emerging custom appear in the way the %* government e ercises oversight over the Internet root. The %* government has observed a general practice of non&intervention when it comes to administering the Internet root =one file, which is the first element in identifying customary law. It remains to be seen if such general practice originated with the awareness that it was legally binding (opinio iuris!. If this is the case, there is the possibility of identifying international customary law in managing parts of the Internet root server system that deal with the country domains of other countries. It would be difficult to e tend such reasoning to the legal status of gT"3s (com, org, edu, net!, which do not involve other countries.

So t La' '*oft law) has become a fre(uently used term in the Internet Governance debate. >ost definitions of soft law focus on what it is not: a legally binding instrument. *ince it is not legally binding, it cannot be enforced through international courts or other dispute resolution mechanisms. *oft law instruments contain principles and norms rather than specific rules. It is usually found in international documents such as declarations, guidelines, and model laws. The main 4*I* documents, including the 9inal 3eclaration, +lan of ;ction, and Regional 3eclarations have the potential to develop certain soft law norms. They are not legally binding, but they are usually the result of prolonged negotiations and acceptance by all countries. The commitment that nation states and other sta$eholders put into negotiating these instruments and in reaching a necessary consensus creates the first element in considering that such documents are more than simple political declarations./ .0 *oft law provides certain advantages in addressing Internet Governance issues. 9irst, it is a less formal approach, not re(uiring the official commitment of states and, thereby, reducing potential policy ris$s. *econd, it is fle ible enough to facilitate the testing of new approaches and ad.ustment to rapid developments in the field of Internet Governance, which is characterised by many uncertainties. Third, soft law provides greater opportunity for a multista$eholder approach than does an international legal approach restricted to states and international organisations.

Ius Cogens

Ius cogens is described by the ?ienna 2onvention on the "aw of Treaties as a 'norm, accepted and recognised by the international community of *tates as a whole, from which no derogation is permitted and which can be modified only by a subse(uent norm of general international law having the same character.)//0 @ne of the main characteristics of ius cogens rules is that they are inalienable. +rofessor Arownlie lists the following e amples of ius cogens rules: the prohibition of the use of force, the law of genocide, the principle of racial non&discrimination, crimes against humanity, the rules prohibiting trade in slaves and piracy./ 00 In Internet Governance, ius cogens could be used for the introduciton of the certain set of global rules in the regulatory fields such as promotion of child pornography, .ustification of genocide and incitement or organisation of terrorist acts, prohibited by international law (ius cogens!.

Notes
B. ; few international attempts have been made to harmonise international private law. The main global forum is the #ague 2onference on International +rivate "aw, which has adopted numerous conventions in this field. 2. >athiason, ,. '; 9ramewor$ 2onvention: ;n Institutional @ption for Internet Governance,) 2oncept +aper by the Internet Governance +ro.ect, 3ecember 566C, %tt#122$cc3s-r3e$u2miscarticles2ig#!4C3#$ D. E amples of the framewor$ convention supported by protocols are the BEF7 ?ienna 2onvention on the @=one "ayer and its BEFG >ontreal +rotocol with its subse(uent amendments: the BEE5 %8 9ramewor$ 2onvention on 2limate 2hange with its BEEG Hyoto +rotocol: and the BEE5 2onvention on the +rotection and %se of Transboundary 4atercourses and International "a$es with its BEEE +rotocol on 4ater and #ealth and its 566D +rotocol on 2ivil "iability and 2ompensation for 3amage 2aused by the Transboundary Effects of Industrial ;ccidents on Transboundary 4aters. 4. There is a high fre(uency of the use of the word 'should) in the 4*I* documents, one of the features of soft law instruments. 9or more information consult: ,ovan Hurbali.a, The Emerging Language of ICT Diplomacy Qualitative Analysis of Terms and Concepts, 3iplo9oundation, %tt#122'''3$i#lomac-3e$u2IS2Language2%tml2'or$s3%tm 7. ;rticle 7D of the BEIE ?ienna 2onvention on the "aw of Treaties. I. Ian Arownlie, Principles of Public International La , 7th Ed. (@ ford: @ ford %niversity +ress, BEEE!, p. 7BD.