Myth #02: International law does not apply on the Internet.
Matthias C. Kettemann
Myth: Since there is no international treaty regarding the Internet, along the lines of the Paris Agreement on climate change, international law does not apply to international subjects and their relations on, and mediated by, the Internet. States can do what they want online.
Busted: True enough: there is no one international treaty regulating cyberspace. But international law applies to the Internet fully and protects the security, stability, robustness, resilience and functionality of the Internet – its integrity – as a matter of common interest. Already the 2013 report of the UN Group of Governmental Experts, building on the Geneva and Tunis documents, confirmed that applying norms derived from existing international law relevant to the use of ICTs by states “is an essential measure to reduce risks to international peace, security and stability”. In its 2015 report, the Group went further and identified the commitment by states to certain key principles of the Charter and other international law as centrally important. These include sovereign equality, prohibition of the threat or use of force, respect for human rights and fundamental freedoms and non-intervention in the internal affairs of other states.
Apart from customary international law, general principles of international law also apply to online settings. These include the principles of due diligence and good neighbourliness which are implemented through confidence-building and capacity-building measures.
There is also a normative argument to be made for applying international law to the Internet: it is ‘necessary’ law. International law is the only body of the law that can serve as the legitimate foundation of an internationally applicable order of norms, through which the exercise of international public authority can be legitimated and the distribution of goods and rights contested and discussed.
The Internet’s public core and the servers necessary for it to function are both indispensable for critical infrastructure (e.g. power grids) to work and, in themselves, critical (information) infrastructure. Safeguarding the Internet’s integrity (its security, stability, robustness, resilience and functionality) has both become an essential goal for international law and can only be ensured by international law.
International law of the Internet also provides the frame in which Internet governance approaches take place, the ‘practice’ of regulating the Internet (#1). Their relevance lies also in the observation that on the Internet the question of legality/illegality is often a false dichotomy. While law traditionally focused on that binarity, governance norms allow for the conceptualization and critique of regimes of responsibility and accountability: there are many shades of legality online. In light of the dynamic nature of the Internet, this variable normativity is a key characteristic of normative evolution.
Truth: While there is no international treaty dedicated to the Internet, international law fully applies. Customary rules and general principles of international law define the power and limits of international actors and, as is common with international law, almost all states respect almost all rules. When more policy-oriented questions need to be solved, Internet governance approaches complement international law.
Source: Group of Governmental Experts Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security, UN Doc. A/70/174 of 22 July 2015; Matthias C. Kettemann, The Common Interest in the Protection of the Internet: An International Legal Perspective, in Benedek/de Feyter/Kettemann/Voigt (eds.), The Common Interest in International Law (Antwerp: Intersentia, 2014), 167-184.