Journal of Law, Information and Science
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JEREMY MALCOLM[*]
Abstract
As outer space, like the Internet, is a global resource available for the use of all humanity, its governance has been used by a number of authors as an analogy to Internet governance. However the distinct manner in which each of these governance regimes evolved has resulted in a number of significant differences between the body of law embodied in each regime, the actors participating in it, and the institutions and processes by which substantive issues are addressed. This paper outlines these differences and concludes by considering some of the lessons that might be drawn from each regime to inform the governance of the other.
1. Introduction
Governance of the Internet has often been compared to the governance of humanity’s activities in outer space, in that the Internet, like the space surrounding planet Earth, ‘constitutes an international resource – to be used for all of mankind, and a scarce resource – to be preserved.’[1] Whilst this is a common enough observation, it is rarely taken any further, for example by examining the similarities of and differences between the sources of law, actors and issues at stake in the transnational governance of the Internet and that of outer space.
The purpose of this article is to briefly outline and compare these two governance regimes in each of those respects, beginning by describing the sources of authority in the regimes for global governance of the Internet and outer space, before moving on to a description of some of the dominant actors in those regimes, and closing with a very brief comparison of some of the substantive public policy issues that arise in each regime.
It will be seen that whilst governance of the Internet and that of outer space share a number of superficial similarities, because the two regimes evolved in such different circumstances, Internet governance is conducted by a more decentralised network of stakeholders than has so far been the case in space governance, which has resulted in a more diverse distribution of authority throughout the former regime.
2. Transnational Law
In comparing the sources of authority in each regime, consideration will not be limited to black letter international law, since this would omit much of the non-state ordering that characterises Internet governance in particular, and which can function effectively as law despite lacking formal authority.
The importance of such non-state authority has long been recognised by scholars of international relations.[2] In that discipline, the very word ‘regime’ as used above refers not merely to the lines of formal legal authority in a particular issue area in the international system, but to ‘sets of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations’.[3]
This is not to say that every institution or practice of governance making up a regime also constitutes international law, but it can be posited that international law is constituted in effect by the conjunction of authority and control; that is, the authority of a decision-maker to posit an obligation, as perceived by those to whom it is directed, and the control of their actual behaviour by the posited obligation.[4] On that account, there is scant distinction between international law as formally agreed between states and that which emerges from other sources of authority within a regime.
Even so, if only for terminological consistency, it is preferable to describe this broader conception of law, that includes authoritative and controlling private ordering, by a different name such as ‘transnational legal process’,[5] ‘transnational law’[6] or ‘global law’.[7] Here the term ‘transnational law’ will be used.
The main institutions and programmes of Internet governance have been constantly evolving since the genesis of the network in 1969 as a research project of DARPA, the Defence Advanced Research Projects Agency, of the US Department of Defense.[8] However for present purposes, a division can usefully be drawn between arrangements that preceded, and those that have followed, the World Summit on the Information Society (WSIS), a large-scale summit that was hosted by United Nations in two phases in Geneva in 2003 and Tunisia in 2005, in the wake of which the landscape of Internet governance was significantly changed.
In the sense given above, Internet governance can aptly be described as a regime;[9] a fact that was implicitly acknowledged in the report of the Working Group on Internet Governance (WGIG) to WSIS in 2005:
Internet governance is the development and application by Governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet.[10]
Accordingly, the transnational law of Internet governance is comprised of a network of overlapping, and sometimes competing, institutions and programmes bearing upon the Internet and its use. Prior to WSIS, these were predominantly concentrated in the spheres of technical coordination and standards development rather than public policy governance as such (though this is not to deny that public policy issues are often engaged by the processes of technical coordination and standards development).[11]
Taking those two spheres of governance in turn, the archetype of authoritative and controlling private ordering within the technical coordination sphere of the Internet governance regime is the administration of the Internet’s Domain Name System (DNS) by ICANN, the Internet Corporation for Assigned Names and Numbers.[12] To explain how this came about, some historical background is required.
In the early years of the Internet, the responsibility of assigning Internet resources such as IP addresses and domain names (and also, less famously, Internet protocol numbers), was contracted by DARPA to the University of Southern California’s Information Sciences Institute (ISI). The individual at the ISI who handled this task was Jon Postel, a research scientist and manager of its Networking Division. Although DARPA did not specify a title for the office that Postel held, it soon became known by the name that Postel came to use to describe it; the Internet Assigned Numbers Authority (IANA).[13]
The actual registration of domain names, under the oversight of IANA, was originally performed by the Stanford Research Institute Network Information Centre (SRI-NIC), which had managed the centralised database that was the technological predecessor of the DNS. This function, by then described as the InterNIC, was transferred in 1992 to a private company Network Solutions Inc (NSI), now under contract to the National Science Foundation (NSF), which had assumed DARPA’s role as the operator of the core Internet backbone network.
In 1998, in the wake of the explosion in the Internet’s popularity and increasing public dissatisfaction with NSI’s monopoly over domain name registration, the NSF’s successor, the National Telecommunications and Information Administration (NTIA), conditionally accepted a joint proposal of IANA and NSI for the establishment of ICANN as a private non-profit corporation incorporated under Californian law, to carry on the functions of IANA, including the DNS registry function then performed by NSI.[14]
A decade on, notwithstanding that ICANN’s legitimacy and accountability have been the subject of much criticism,[15] its authority within the Internet governance regime has been strongly consolidated as its actions in the administration of the DNS system have been accepted (or at least not directly challenged) by states.[16] It may even now be regarded as an autonomous subject of international society, for example in that it directly enters into agreements with states over the administration of their country code top-level domains (ccTLDs),[17] and has attracted broad participation within its Governmental Advisory Committee (GAC).[18]
Moving on to the second sphere of Internet governance noted above, standards development, this too commenced under DARPA’s auspices. The university researchers who maintained the nascent network collaborated on the development of its specifications as the ‘Network Working Group’. They communicated with each other, not by email – because that was not to be invented until 1972 – but by the exchange of printed memoranda which they titled ‘Requests for Comment’. The earliest of these RFCs, published in 1969, was a memorandum of the design of the network’s “HOST” software.[19]
In time the Network Working Group came to be formalised as the IETF (Internet Engineering Task Force),[20] but continued to publish its recommendations for Internet technical standards as RFCs. Not only are these standards published openly, but they are also openly owned, by a neutral body rather than a single vendor, and openly developed, in that anyone can contribute to them.[21] The IETF today remains the dominant body producing technical standards for the Internet, with the World Wide Web consortium (W3C)[22] a notable second.
The Internet’s technical standards are not mandated by law. In this they contrast with the technical standards for international telephony, which are set out in the International Telecommunications Regulations (ITRs), a binding treaty instrument which is developed and periodically updated by the International Telecommunicaions Union (ITU).
Rather, standards developed by the IETF and published as RFCs tend to be complied with because they are of high quality, are timely, widely supported, and represent a high level of technical consensus amongst a broad group of experts and users. Thus, the de facto standards of the Internet are a form of governance by norms, whereas the de jure standards of international telephony are a form of governance by rules.
In summary then, prior to WSIS, the transnational law of the Internet principally comprised the technical coordination regime of ICANN and its constituent bodies, carried out pursuant to a contract between ICANN and the United States government, and the body of Internet technical standards developed predominantly by the IETF. These may be regarded as constituting transnational law in that they are widely regarded as authoritative by other actors within the Internet governance regime, and in practice largely control those actors’ behaviour.
However although this body of transnational law largely covers the fields of technical coordination and standards development for the Internet, there has been no such broadly-accepted corpus of transnational (or, for that matter, international) law for the third sphere of Internet governance referred to above; that of public policy governance. This omission was to be rectified at WSIS.
Two formal output documents were produced from each of the phases of WSIS. Two of those will be briefly described here: the Geneva Declaration of Principles of 2003, and the Tunis Agenda for the Information Society of 2005. These documents can be regarded as completing the core corpus of transnational law for the Internet governance regime, in setting out authoritatively for the first time some basic substantive and procedural principles for the transnational public policy governance of the Internet.
The Declaration of Principles is based around eleven ‘key principles for building an inclusive Information Society’. These include:
• The role of governments and all stakeholders in the promotion of ICTs for development (under which heading it is declared that ‘international management of the Internet should be multilateral, transparent and democratic, with the full involvement of governments, the private sector, civil society and international organizations’);[23]
• Access to information and knowledge (including the importance of a rich public domain, and the availability of open source and free software alongside proprietary software);
• Building confidence and security in the use of ICTs (which underlines the importance of enhancing information and network security, authentication, privacy and consumer protection, and makes specific mention of the spam problem); and
• Ethical dimensions of the Information Society (referring to the need to uphold human rights in the use of ICTs).
As for the Tunis Agenda, the section of this document that is of present relevance is that dealing with Internet governance, which was the main issue upon which agreement could not be reached in Geneva, and which led to the formation of WGIG.
This topic is addressed in the Tunis Agenda in two ways: firstly by calling for the establishment of ‘a process of enhanced cooperation’ by which governments are to lead the development of globally applicable public policy principles for the Internet, and secondly (but as a part of that broader process) by establishing an Internet Governance Forum (IGF) as a new forum for multi-stakeholder policy dialogue in which governments can take an equal role and responsibility for Internet governance and policy making in consultation with all other stakeholders.[24]
The Tunis Agenda states that the IGF should be multilateral, multi-stakeholder, democratic and transparent in its working and function, with a lightweight and decentralized structure that is subject to periodic review. It is not to replace other relevant fora in which Internet governance issues are discussed or to exercise oversight over them or have any binding decision making power. In particular, it is to have no involvement in day-to-day or technical operations of the Internet, but should work in parallel with those organisations that do, taking advantage of their expertise.[25]
The Geneva Principles and Tunis Agenda are not treaties, and do not bind the governments that agreed to them, still less the private sector and civil society delegates who contributed their own submissions during the WSIS preparatory conferences at which the texts were drafted. They are, in other words, instruments of ‘soft’ rather than ‘hard’ international law,[26] but are nonetheless no less authoritative and controlling in principle than the transnational law of the technical administration and standards development spheres of the Internet governance regime considered above.
In practice, this has so far proved true only to a limited extent. In particular, the author has argued elsewhere[27] that the IGF has not yet lived up to the ideals of its authors of the Tunis Agenda that it should, as part of a new multi-stakeholder model of enhanced cooperation in Internet governance, address the ‘many cross-cutting international public policy issues that require attention and are not adequately addressed by the current mechanisms’.[28] Even so, the IGF’s performance as a multi-stakeholder governance network will not be ripe for final assessment until it completes the initial term of its mandate in 2010.
The governance of outer space could hardly provide more of a contrast to that of the Internet, in that it has been cast in the form of hard international law from the outset, and in historical terms understandably so. Whereas participation on the Internet is open to almost anyone with a computer and a telephone line and has been for many years, the high capital cost and high risk associated with participation in space exploration raise such formidable barriers to entry into this field that at first, only states could afford to participate. It was therefore only natural that they would choose to order their affairs through international law.
Neither did they waste any time in doing so. It was 38 years from the inception of the Internet’s predecessor network in 1969 to the establishment of the IGF in 2006. In contrast, it took only six years from Yuri Gagagin’s first manned space flight in April 1961 until the Outer Space Treaty of 1967[29] was in force.
The Outer Space Treaty remains the most fundamental instrument of space law. The treaty was based loosely on the Antarctic Treaty of 1959,[30] which shared a similar purpose of preserving its subject matter for the common use of mankind, rather than allowing it to be preemptively colonised. This differs from the manner in which other shared resources have been managed in international law, such as the voting procedures employed in the whaling regime,[31] or the law of capture associated with fishing on international waters.[32]
The provision of the Outer Space Treaty that encapsulates this philosophy is Article I that begins:
The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.
Echoes of this are found in the Geneva Declaration of Principles of the WSIS which states that ‘Everyone, everywhere should have the opportunity to participate and no one should be excluded from the benefits the Information Society offers’.[33]
Article II goes on to enshrine the principle that outer space is ‘not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means’. In this the treaty begins to diverge from the WSIS which accepted the national sovereignty of ccTLDs in paragraph 38 of the Tunis Agenda, calling for ‘the reinforcement of specialized regional Internet resource management institutions to guarantee the national interest and rights of countries in that particular region to manage their own Internet resources’.[34]
The next article of present relevance is Article V, which obliges parties to render assistance to astronauts. This obligation is elaborated in the Rescue Agreement of 1968,[35] for example in Article I which provides a positive obligation upon any party that ‘receives information or discovers that the personnel of a spacecraft have suffered accident or are experiencing conditions of distress’ to so notify the launching authority and the Secretary-General of the United Nations. Although there is no close analogy to this in Internet governance, a similar positive obligation to receive calls of distress is imposed upon members of the ITU engaged in radiocommunications by its Radio Regulations.[36] The remainder of the Rescue Agreement contains further obligations to render assistance to the personnel of spacecraft in distress.
Article VI of the Outer Space Treaty requires parties to the treaty to bear international responsibility for national activities in outer space, whether such activities are carried on by government agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the Treaty. The activities of non-governmental entities in outer space require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space by an international organization, responsibility for compliance with the Treaty is borne both by the international organization and by the State Parties to the Treaty participating in such organization.
This approach to the problem of assigning a jurisdictional nexus to the activities of non-state actors in space is mirrored in similar proposals made for resolving jurisdictional ambiguities on the Internet, for example by Menthe, who suggests that the state with jurisdiction over a dispute relating to Internet content should be that of the nationality of the person who uploaded it, or in appropriate cases who controls it.[37] To date, no such proposal has fallen for consideration at an intergovernmental level or within the Internet Governance Forum.
Article VII makes a party strictly liable for damage caused to another party by an object launched into outer space. This is elaborated in the Liability Convention of 1972[38] pursuant to which the launching state is liable for damage, not only to other parties to the Convention, but to any persons or international intergovernmental organizations affected, except in the case where the damage is caused without fault elsewhere than on the surface of the Earth. This provision is notable in that it bestows rights at international law upon non-state actors, although these are indirect, as compensation is payable to their state on their behalf.
Compensation pursuant to the Liability Convention is determined ‘in accordance with international law and the principles of equity and justice’ (Article XII). In the event that the quantum of compensation cannot be agreed through diplomatic means, the Liability Convention provides (in Articles XIV to XX) for a Claims Commission to be formed, comprising one member appointed by each party to the dispute and a Chairman appointed jointly. This recalls proposals for a separate court to be established for the determination of Internet-based disputes, and the real-life progenitor of such a court system, ICANN’s Uniform Dispute Resolution Policy (UDRP) which was established in 1999 for the resolution of disputes between domain name holders and trade mark registrants.[39]
Returning to the Outer Space Treaty, Article VIII provides that a party to the treaty retains jurisdiction and control over objects launched by it, which can be regarded as an exception to the general principle that there is no sovereignty in outer space. This principle is reiterated in the Registration Convention of 1975,[40] which in Article IV, requires parties to contribute details of space objects launched by them to a registry maintained by the UN Secretary-General. The register records the identity of the launching state, a designation or registration number, the date and location of launch, orbital parameters, and the object’s general function. Article III of the Registration Convention provides that access to the register shall be ‘full and open’.[41] In this, it closely resembles the IANA function of ICANN, involving the maintainance of a register of Internet protocol numbers.
Returning again to the Outer Space Treaty, Article IX provides in part that States Parties to the Treaty shall pursue studies of outer space, including the moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose.
Here again an analogy can be found in Internet governance, in the form of endeavours to protect the Internet’s stability and security from the threats posed by cybercrime and spam,[42] which have formed one of the main themes of discussion at the first two meetings of the IGF.
The final article of relevance is Article XII, which enshrines a principle that in the Internet context would be described as net neutrality, in providing that ‘All stations, installations, equipment and space vehicles on the moon and other celestial bodies shall be open to representatives of other States Parties to the treaty on a basis of reciprocity’. The debate over net neutrality on the Internet is as to whether a similar principle of reciprocity should apply between telecommunications providers and content providers – that content providers may deliver their content across Internet-connected networks without discrimination, just as the owners of those networks are allowed unhindered access to that content by its providers.[43]
Moves to enshrine this principle of net neutrality in law failed in the United States House of Representatives in June 2006,[44] but were there to be a provision of international law akin to Article XII of the Outer Space Treaty that did so, it would prevent telecommunications providers from attempting to directly charge content providers for preferential carriage of their content across the providers’ networks. This is not an entirely abstract suggestion, as it has already been proposed by one scholar that net neutrality should constitute a globally applicable principle for Internet governance.[45]
This and the other close parallels between provisions of the Outer Space Treaty and issues of Internet governance revealed above, provide an idea of how an Internet Treaty might work, were the IGF’s stakeholders to collaborate upon the development of a draft convention.[46]
3. Actors and Stakeholders
One of the key insights that emerged from WSIS was the acknowledgment that ‘international management of the Internet should be multilateral, transparent and democratic, with the full involvement of governments, the private sector, civil society and international organizations’. This has become a key precept of multi-stakeholder governance, with potential application in numerous other issue areas in which transnational interests are engaged.[47]
The same insight has yet to be reflected in the regime of space governance however, where no venue for multi-stakeholder discussion equivalent to that of the IGF exists, nor has been proposed. Although space governance impacts upon much the same stakeholder groups as Internet governance, the boundaries between those groups and the fora in which they participate in the regime have therefore tended to be more clearly defined, as will be seen as the two regimes are briefly compared below.
In addition to setting out the principle that Internet governance should be conducted on a multi-stakeholder basis, the Geneva Declaration of Principles also sought to differentiate between the roles that the stakeholder groups in question ought to play in that process:
We reaffirm that the management of the Internet encompasses both technical and public policy issues and should involve all stakeholders and relevant intergovernmental and international organizations. In this respect it is recognised that:1. Policy 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;
2. The private sector has had and should continue to have an important role in the development of the Internet, both in the technical and economic fields;
3. Civil society has also played an important role on Internet matters, especially at community level, and should continue to play such a role;
4. Intergovernmental organizations have had and should continue to have a facilitating role in the coordination of Internet-related public policy issues;
5. International organizations have also had and should continue to have an important role in the development of Internet-related technical standards and relevant policies.[48]
Although this suggests a five-fold grouping of stakeholders, the Geneva Principles and Tunis Agenda vacillate between describing three, four or five distinct groups. The preferable interpretation is that there are three: governments, the private sector and civil society, and that intergovernmental and private international organisations, along with academia and the Internet technical community, are subsumed within one or more of those three main groups.[49]
Rather than describing the participation of these stakeholder groups within the IGF, the activities outside the IGF of some of the most prominent actors in the Internet governance regime will be briefly outlined here.
As in the case of space governance, it is the United States government that has historically been most closely involved with the Internet governance regime, as the sponsor through DARPA and later the NSF of the original backbone network, and as the party to which ICANN is contracted to conduct the IANA and the InterNIC functions.
The Memorandum of Understanding pursuant to which these functions are performed (described in its latest revision as a ‘Joint Project Agreement’ or JPA) is due to expire in September 2009.[50] Following its expiry, it is expected that the Department of Commerce will pass most of those functions on to ICANN for it to perform on a fully privatised basis, though in November 2005 – just prior to the second session of the WSIS – the NTIA matter-of-factly noted that the United States intended to ‘maintain its historic role in authorizing changes or modifications to the authoritative root zone file’.[51]
The United States and most other national governments have also endeavoured to address a range of Internet-related public policy issues (as will be described in the following section 4.1) through domestic law. However the inherent difficulty of addressing transnational public policy issues through domestic law has in many cases limited the effectiveness of such measures.
Specifically, a state endeavouring to regulate Internet-based conduct may fail because of the ease with which that conduct is transferred to another jurisdiction; or conversely, regulation intended for application only within the jurisdiction may spill over outside its borders. Although this is also true in other regimes of transnational governance, Internet governance is distinguished by the characteristic that ‘virtually all events and transactions have border-crossing effects’.[52]
These inherent limitations upon the domestic regulation of the Internet have led to increased attention being paid to Internet governance at an intergovernmental level, mostly in the sphere of public policy governance. One of the most active such organisations has been the Organization for Economic Cooperation and Development (OECD). Amongst the instruments it has produced with relevance to Internet governance are:
• its Guidelines for the Security of Information Systems and Networks[53]
which formed the basis for a subsequent non-binding UN General Assembly Resolution;[54]
• an Anti-Spam Toolkit, along with a variety of reports on spam, produced by its ad hoc Spam Task Force;[55]
• although not specific to the Internet, its Guidelines for the Protection of Privacy and Transborder Flows of Personal Data;[56]
• the OECD Guidelines for Consumer Protection in the Context of Electronic Commerce,[57] which formed the basis for the Australian Federal Government’s Building Consumer Sovereignty in Electronic Commerce,[58] a voluntary resource designed to foster a self-regulatory approach to consumer protection in e-commerce by Australian business; and
• the OECD Guidelines for Protecting Consumers from Fraudulent and Deceptive Commercial Practices Across Borders.[59]
Another important intergovernmental instrument, besides those of the OECD, is the Convention on Cybercrime passed by the Council of Europe in 2001[60] dealing with computer fraud, information security, and the content regulatory issues of child pornography and copyright. This convention has also been acceded to by other non-European countries such as South Africa, Canada, the USA and Japan. Although Australia has not ratified the convention, its Cybercrime Act 2001 (Cth) was based on it in part.
To close with one further example, UNCITRAL, the United Nations Commission on International Trade Law,[61] released in 1996 a Model Law on Electronic Commerce,[62] followed in 2001 by a Model Law on Electronic Signatures.[63] Both model laws prescribe a technology-neutral model for the treatment of electronic contracts and signatures as legally equivalent to their paper-based equivalents. Australia’s Electronic Transactions Act 2001 (Cth) and its State counterparts were based on the Model Law on Electronic Commerce.
The private sector participates in the Internet governance regime not through rules as in the case of governments, but through market mechanisms and in shaping of the Internet’s technical architecture or ‘code’.[64]
As an example of the use of markets in Internet governance, ever since NSI assumed the InterNIC function, registries of generic top-level domain names (gTLDs) such as .com have operated on a commercial basis. ICANN now appoints new gTLD registries following an open tender process, and regulates their activities through contracts negotiated on commercial terms. Markets also regulate the cost of interconnection between Internet Service Providers and backbone networks, and the delivery of Internet access to end users; both of which are central to the bridging of the digital divide between developed and developing countries, a public policy issue that was of significant concern at WSIS.
The influence of the private sector on the Internet’s architecture also has public policy implications. One example raised at the IGF has been the participation of companies like Google, Yahoo, Microsoft and Cisco in the programmes of some national governments such as that of China to limit freedom of expression on the Internet.[65] Three months following the discussion of this issue at the IGF’s first meeting, it was announced that Microsoft, Google and Yahoo were amongst the members of a new multi-stakeholder network that aimed to produce a code of conduct on private sector involvement in national Internet regulation.[66]
The CA/Browser Forum[67] provides another example of a purely private initiative on an Internet-related public policy issue; specifically phishing, a ‘social engineering’ attack in which victims are induced (usually through spam email) to provide confidential details to a bogus Web site masquerading as that of a legitimate online business such as a bank. The CA/Browser Forum is a consortium of vendors of Web browser software, and Certification Authorities (CAs) who issue Web site owners with SSL certificates that assure the identity of the site to visitors. Their approach to the problem has been based on architecture: the introduction of a new type of SSL certificate that requires more rigorous verification by the issuing CA, and is flagged as such by the user’s Web browser.
As described at 2.1.1, the role of civil society – that is, people organised into non-commercial social groups other than states – has been central to Internet governance. But whereas in other regimes such as environmental governance the contribution of civil society has been strongest in the public policy sphere, in the Internet governance regime civil society has been most active in the spheres of technical coordination (through bodies such as ICANN) and standards development (through the IETF). To distinguish such actors and networks from broader civil society, they and their partners from other stakeholder groups are often collectively described as the ‘Internet technical community’[68].68
The peak body of the Internet technical community, which has also exercised an important historical and ongoing role in Internet governance in its own right, is the Internet Society (ISOC). ISOC is a non-profit organisation incorporated in the United States with offices in Washington, DC and Geneva. It has members in over 180 countries, divided into individual and organisational constituencies, and Chapters which are regional ISOC groups such as ISOC-AU, the Internet Society of Australia. ISOC is governed by a Board of up to twenty Trustees holding office for three years, most of whom are elected by ISOC’s members, but with up to five nominated by the incumbent Board, and three by the IETF, of which ISOC is the ‘organisational home’.
Despite their credentials in the technical coordination and standards development spheres of Internet governance, WSIS allowed limited scope for the participation of ISOC, ICANN and the IETF, or broader civil society for that matter. Although the resolution of the UN General Assembly by which the WSIS was endorsed, invited civil society ‘to contribute to, and participate in, the intergovernmental preparatory process of the Summit and at the Summit itself’,[69] in practice civil society’s participation in intergovernmental negotiations, for example on the text of the output documents, was allowed only on an ad hoc basis at the discretion of government delegates.[70] During one preparatory conference of WSIS, even ICANN President Paul Twomey was ejected from the negotiation room.[71]
In this respect, the IGF marks a significant progression, in that it is open to all stakeholders, including (uniquely for a UN body) unaffiliated individuals, with the object of allowing civil society including the Internet technical community an equal opportunity to participate in policy discussion with all other groups in an unsegregated forum. Furthermore, the IGF’s agenda-setting Advisory Group contains a number of ISOC, ICANN and IETF members, sitting in their personal capacities alongside representatives drawn from broader civil society and from other stakeholder groups.
One of the legacies of states’ early monopoly on space exploration as noted above is that the primary actors in space governance remain governmental.[72] This is in contrast to many other international regimes in which leadership is shared between state and private sector or civil society bodies, as in the case of the International Civil Aviation Organization (ICAO) and International Association of Transport Airlines (IATA) in international air transport, and the International Maritime Organization (IMO) and the Comité Maritime International (CMI) in maritime matters.[73]
Having said that, the private sector has assumed an increasing role of its own, particularly in the area of satellite communications which it has come to dominate, and civil society has also had some impact in space governance. A brief outline of the activities of each of the three stakeholder groups in space governance will be given below.
The Outer Space Treaty and related conventions were developed by the United Nations Committee on the Peaceful Uses of Outer Space (UN-COPUOS),[74] a committee of the General Assembly of the UN comprising 67 states as members as at 2008. There are a Legal and a Scientific and Technical Subcommittee of UN-COPUOS, which in turn are divided into various working groups. The committee and its subcommittees operate by consensus and are each headed by a bureau of five, the offices of which rotate among the five geographical regions every three years.
In addition to leading the development of the outer space conventions, UN-COPUOS has also developed five soft law declarations and principles on matters such as direct television broadcasting,[75] remote sensing [76] and the use of nuclear power sources in outer space.[77] As these were subsequently affirmed by the General Assembly at large,[78] it can be contended that they have begun to pass into customary international law, at least to the extent that they are also reflected in state practice.[79]
The United Nations Office for Outer Space Affairs (UNOOSA)[80] acts as the secretariat for UN-COPUOS, manages the General Assembly’s Programme on Space Applications which is designed to assist developing countries in using space technology,[81] and operates the Register of Space Objects.
Private sector and civil society representatives may apply to UNOOSA for permanent observer status, allowing them to attend meetings of UN-COPUOS and those of its subcommittees.[82] UN-COPUOS also convenes an international conference on space governance called UNISPACE, which has been held in 1968, 1982 and 1999. Amongst the NGOs represented at UNISPACE III in 1999 were the International Astronomical Union (IAU),[83] the International Astronautical Federation (IAF)[84] and the International Space University.[85] Private sector representatives in attendance included Boeing, Mitsubishi and Toshiba.[86]
Another intergovernmental organisation worthy of brief note is the European Space Agency (ESA)[87] which at 2008 contains 17 member states and is Europe’s equivalent of NASA (the National Aeronautics and Space Agency of the United States),[88] though most individual European states also have their own domestic space agencies. NASA, the ESA, and the space agencies of Canada, Japan and Russia, are the joint participants in the International Space Station, pursuant to a treaty between their respective governments that sets out their interests in and responsibilities for the project.[89]
Although there are 67 states involved in space governance on an intergovernmental level, the activities of most of these states’ national space agencies are quite limited. Only three such agencies have launched humans into space; those of the United States, Russia and China.[90]
Of these, the most active work has been that of NASA. Like the NSF, that was funded by the government of the United States to provide the early backbone network for the Internet, NASA has also used its public funding to provide much basic research into space science and technology, which has been made available to the international community at large.[91]
Whilst the private sector has also begun to become involved in the exploration[92] and exploitation of space, its main activities have been in the area of satellite telecommunications.
The International Telecommunications Satellites Organization (ITSO, but originally abbreviated as Intelsat)[93] was established by treaty in 1961 as a non-profit cooperative of states,[94] to launch and operate communications satellites. Intersputnik was an equivalent intergovernmental organisation for the former Soviet states,[95] and the International Maritime (now Mobile) Satellite Organization (IMSO, but originally abbreviated as Inmarsat)[96] was a like body originally devoted to satellite communications for maritime use. Two of these three organisations have since privatised or spun off their operations to commercial arms; ITSO to the now-independent Intelsat[97] in 2001, and IMSO to the new Inmarsat in 1999,[98] leaving Intersputnik as the only remaining intergovernmental satellite operator.
Numerous purely private-owned satellite telecommunications companies have blossomed since the first, Arianespace,[99] was incorporated in 1980. There are also a number of regionally and nationally focused satellite operations, both public and private, including the Indonesian IndoSat (majority private owned),[100] the European Eutelsat (originally intergovernmental but privatised in 2001),[101] and the Arabian Arabsat (which remains intergovernmental).[102]
Since 1995 the commercial satellite industry has been represented by the Satellite Industry Association,[103] which advances the interests of the industry in governance fora both within the United States and at the intergovernmental level, as will be discussed further below.
Civil society is also involved in space governance, though to a lesser extent than the early and pivotal role that it has had in the Internet governance regime.
Reflecting the dominance of NASA amongst space agencies, most space interest and advocacy organisations are based in the United States, and many of them have limited impact on international space governance. Amongst the exceptions are the National Space Society (NSS)[104] and the Planetary Society,[105] both of which have been active internationally in advocating increased development and exploration of space by the government and the private sectors. 2006 marked the 25th anniversary of the International Space Development Conference jointly held by the two organisations, and also the ninth Australian Space Development Conference which is hosted by the Australian chapter of the NSS.[106]
Civil society is also active in technical fields of space governance, much as the IETF and IRTF are in relation to the Internet. The Space Studies Institute (SSI)[107] for example is a non-profit, privately-funded organisation focused on technical research and development in space science and technology. There is also a private non-profit International Space University,[108] founded in 1987.
In the field of satellite communications, the dominant civil society organisation is the Radio Amateur Satellite Corporation, AMSAT.[109] Formed in 1969, its first launch was the Australis-OSCAR 5 satellite constructed by students from the University of Melbourne.[110] Five frequencies have been allocated for the use of amateur satellites by the World Administrative Radio Conference (WARC) of the ITU.
Having briefly examined the sources of transnational and international law for the regimes of Internet and space governance, and described the actors and stakeholders active in those regimes, this final section will outline and compare – inevitably, even more briefly – some of the substantive public policy issues that have arisen in each regime.
The Tunis Agenda itself identifies numerous public policy issues for consideration of the IGF, but nowhere are these itemised in clear terms. The report of the WGIG to the WSIS had however earlier identified thirteen Internet-related public policy issues in more concrete terms,[111] most of which can be traced forward to one or more paragraphs of the section on Internet governance in the Tunis Agenda. Figure 1 itemises the thirteen public policy issues identified by the WGIG by paragraph and brief description, and their equivalent paragraphs in the relevant section of the Tunis Agenda, if any.
Figure 1: Public Policy Issues
|
WGIG para
|
WGIG description
|
Agenda paras
|
|
15
|
Administration of the root zone files and system
|
|
|
16
|
Interconnection costs
|
49, 50
|
|
17
|
Internet stability, security and cybercrime
|
40, 43, 44, 45
|
|
18
|
Spam
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41
|
|
19
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Meaningful participation in global policy development
|
52
|
|
20
|
Capacity-building
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51
|
|
21
|
Allocation of domain names
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63, 64
|
|
22
|
IP addressing
|
38
|
|
23
|
Intellectual property rights (IPR)
|
|
|
24
|
Freedom of expression
|
42
|
|
25
|
Data protection and privacy rights
|
39, 46
|
|
26
|
Consumer rights
|
47
|
|
27
|
Multilingualism
|
53
|
It is notable that there are two broad public policy issues that were identified by WGIG but omitted from the list of such issues in the Tunis Agenda: intellectual property rights, and domain names and root name servers (which, together with IP addressing, the Tunis Agenda seem to refer to as ‘critical Internet resources’).[112]
The reasons for the omission of these issues from the WSIS output documents were political. In the case of intellectual property rights, it was argued by developed country governments that any reform in this field should remain within the purview of the World Intellectual Property Organization (WIPO).[113]
In the case of critical Internet resources, the United States had made it quite clear that it was not willing to divest its control of the DNS root,[114] and during the negotiations that preceded the final meeting of the WSIS, this position was conceded. Accordingly, save for the observation that ‘Countries should not be involved in decisions regarding another country’s country-code Top-Level Domain (ccTLD)’, and the vague promise of ‘enhanced cooperation’ in future, the Tunis Agenda established that the IGF ‘would have no involvement in day-to-day or technical operations of the Internet’.[115]
Nonetheless, these two issue areas have proved to be of central concern during substantive discussions at the IGF, and accordingly some of the prominent issues they raise will be briefly outlined here.
WIPO administers the principal intellectual property conventions, which include the Berne Convention regarding copyright,[116] the Paris Convention regarding patents, trademarks and registered designs,[117] and the Rome Convention also regarding copyright.[118] The WIPO Copyright Treaty (WCT)[119] and the WIPO Performances & Phonograms Treaty (WPPT),[120] both of which came into force in 2002, update these earlier instruments in light of new digital technologies including the Internet. Australia is not a signatory to these WIPO treaties, but its Copyright Amendment (Digital Agenda) Act 2000 (Cth) amendments to the Copyright Act 1968 (Cth) are consistent with them.
Amongst the changes introduced by the Copyright Amendment (Digital Agenda) Act that are most relevant to the Internet were to bestow on copyright owners a new exclusive right to communicate works to the public (eg by making electronic copies or uploading them to an online repository), and allowing temporary reproductions of copyright works made automatically in the course of accessing them online (for example, when a user’s Web browser caches a copy of a site it accesses to disk).
One of the biggest challenges posed to these IPR owners by the Internet has been the prevalence of the exchange of copyright music, software and video, often using P2P (peer-to-peer) file sharing technology. The music and motion picture industries have used the force of domestic law against those involved at all levels: the authors of file sharing software,[121] those who publish cracks for DRM (Digital Rights Management) or copy-protection technologies,[122] Internet Service Providers,[123] and end users.[124]
On the other side of the coin, there are bodies which oppose the extension of IPRs over Internet activities, such as the Electronic Frontiers Foundation (EFF),[125] and its counterpart, Electronic Frontiers Australia (EFA).[126] There are also organisations such as Creative Commons,[127] and the Free Software Foundation[128] that seek to subvert the dominance of the IPR paradigm, through facilitating the release of copyright works on the Internet under free licences, some of which licences are designed to be ‘viral’ or self-perpetuating in adaptations of the works.
Both groups of stakeholders have come together in the IGF, but with little evidence yet of a developing meeting of minds. Thus, concerns expressed by some stakeholders (including EFF and IP Justice) about the potential for technologies such as DRM to undermine the free flow of information on the Internet have come up against the contentions of others (such as WIPO) that DRM is of central importance in preserving incentives to create and innovate.[129]
WIPO, traditionally a bastion of the interests of IPR owners, has also more recently begun to incorporate the perspectives of those advocating a rebalancing of intellectual property rights, by adopting in September 2007 a Development Agenda which includes amongst its recommendations the preservation of the public domain and the exchange of experiences on open collaborative projects.[130]
The underlying reason for the formation of WGIG as one of the outcomes of the first phase of WSIS was that a deadlock had been reached on the question of whether the US government should maintain its historical position of control over the management of critical Internet resources through its contract with ICANN and its control of the global DNS root.
While the US and its close allies, along with most of the technical community and private sector, supported the maintenance of the ICANN regime under the ‘light-touch’ oversight of the NTIA, most other WSIS participants sought to broaden that oversight role on the ground that it was inappropriate for any single government to unilaterally possess formal authority over management of the Internet’s critical resources. Although WGIG properly took a much broader approach in the recommendations it made on Internet governance, its most controversial recommendations were always going to be those which were directed to this issue.
And so it was that in June 2005 following the completion (but pre-empting the publication) of the WGIG report which recommended that ‘[n]o single Government should have a pre-eminent role in relation to international Internet governance’,[131] the NTIA issued its statement affirming the US Government’s resolve to ‘maintain its historic role in authorizing changes or modifications to the authoritative root zone file’.[132]
The eventual compromise reached at WSIS was the addition of the paragraphs on ‘enhanced cooperation’ to the Tunis Agenda, and the inclusion of the discussion of critical Internet resources in the mandate of the IGF.
The topic of critical Internet resources is however much broader than just a dispute over the US government’s role in their management, with domain name allocation, root server management and IP addressing all raising quite separate issues. For present purposes, attention will be focused on just one of these as an example: IP address allocation.
By way of background, every Internet host that wishes to be directly accessible to any other Internet host must be assigned a public IP address as a unique identifier. Under the current IP addressing addressing system called IPv4, there is a shortage of IP addresses for all of the hosts that require them. The allocation was originally made on a ‘first-come, first served’ basis, with the result that the available space is quite unevenly allocated (for example, organisations like Apple, Hewlett Packard and MIT have each been allocated as much IP space as Japan, and more than many developing nations).
The solution to the shortage has long been available for implementation, in the form of the next generation IP addressing scheme, IPv6, which provides much more available address space.[133] It is IANA’s role is to allot this address space to each of five Regional Internet Registries on the basis of need. The address space is then progressively sub-delegated again, normally by the RIR to a national or local Internet registries, and thence to telecommunications carriers and ISPs and their connected users.[134]
Although a purely administrative issue on its face, the perceived inequitable allocation of IPv4 address space has turned IP address allocation into a public policy issue of significant political importance, with less developed countries, in particular, firmly expressing the need for greater equity to be assured in the allocation of IP address space in the future.[135] As will be seen, the same is true in space governance in the case of the ITU’s allocation of satellite frequencies and orbits.[136]
It lies beyond the scope of this article to outline even briefly the major substantive issues that have arisen in space governance. However, a good starting point is found in the list of 33 forums and workshops that were held in conjunction with UNISPACE III, including the problem of space debris, intellectual property rights in space and remote sensing.[137] There are also many other topical issues not included in that list including the emerging industry of space tourism[138] and the need for a regime of private property rights to apply to commercial space salvage and mining.[139]
On the face of it there might seem to be little in common between such issues and the issues of concern to Internet governance, save for generalisations such as that ‘both systems of law ... need to recognize and allow the power of technology to be available, while at the same time respecting the prerogatives of traditional sovereignty’.[140] However two issues which do have a close analogy to equivalent issues in Internet governance will be discussed below. These are the same issues that have just been discussed above: intellectual property rights and resource management.
The application of intellectual property law to space has a number of parallels to its application on the Internet. First, it raises similar jurisdictional problems, such as the manner in which infringements of intellectual property rights may be committed, at low cost and on a large scale, in jurisdictions with which the owner has had no contact.
In the space context, this is illustrated by the fact that satellite signals transmitted to Earth from space can generally be picked up across a broad geographical area, and unless the signals are encrypted there is a risk they might be received and used in breach of copyright. To address this issue, a Brussels Convention[141] was promulgated in 1974 requiring states to limit the use of satellite broadcast signals received on Earth by those for whom they were not intended.
A second parallel between the application of intellectual property law on the Internet and in space is that there is considerable difference of opinion between those who believe we ought not to rush to extend the reach of intellectual property law to the new frontier, in order to facilitate the availability of basic scientific research for the benefit of all,[142] and those who believe that there is an urgent need for states to extend their intellectual property laws, or indeed all relevant parts of their domestic law, to outer space.[143]
Those who put forward the latter position usually make reference to patent law. Since outer space is outside any state’s sovereignty, there is nothing to prevent a patent from being ‘infringed’ there, as for example in the manner of operation of a satellite.[144] The same problem applies in principle to other forms of intellectual property protection including the law of trade secrets (as well as trademark and copyright law, though it is more difficult to imagine how infringements of these rights in space could cause their owners significant loss).
Article 21 of the Space Station Intergovernmental Agreement addresses this problem for the parties to the International Space Station. Since the Space Station is divided into modules separately owned by various partner states, the Article in effect extends the intellectual property laws of those states to the modules owned by them.
A similar solution for all other states is facilitated by Article 8 of the Outer Space Treaty which provides in part:
A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.
This would allow a state to extend the scope of its domestic law to any registered space vessel of that state. Since 1990 the United States has so extended the scope of its patent law,[145] but Australian law is silent on this question. Debate continues as to whether a new space law treaty is required to address this issue more comprehensively,[146]
as the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty were intended to do for the new issues that arose for intellectual property on the Internet.
Amongst the scarce resources of the Internet that are allocated by ICANN exercising its IANA function are IP addresses and protocol, port and AS numbers. Radio frequencies and orbits are the equivalent scarce resources to be shared amongst those exploiting outer space. Both sets of resources share the somewhat unusual characteristic of being infinitely renewable; once they cease being used for one purpose, they are immediately and fully restored for use by another. Therefore the task of managing these resources is much alike in both the Internet and space governance regimes, in that they both ‘focus on technical issues, maximization of resource, and non-interference’.[147]
The ITU is responsible for regulating radio-telecommunications by satellite, and although it somewhat exceeds its mandate to do so, it has taken upon itself the task of regulating the orbits of satellites launched by its members, as well as the frequencies on which they transmit data.
Originally, the ITU managed these resources on a ‘first come, first served’ basis. However, some frequencies and orbits proved more popular than others, raising the risk that they would in time become overcrowded. For example, the most sought after orbits were geostationary ones, which are those in which a satellite will appear to an Earth observer to be stationary in the sky. Satellites in such orbits are more efficient to operate, and fewer are required in order to attain global coverage.[148]
At the first World Administrative Radio Conference dedicated to orbital allocation, WARC-ORB in 1985, it was decided that in order to prevent the limited frequencies and geostationary orbits from being exhausted by the few states then capable of launching satellites, to the detriment of those states that were not, a block of frequencies and a segment of orbital space would be set aside for planned allocation on an equitable basis, with the balance remaining open to the first claimants.[149]
Since there is no treaty bearing upon the use of geostationary orbits (or rather, the Outer Space Treaty provides that they like the rest of outer space are ‘the province of all mankind’), the ITU’s regulation of orbital space is only binding upon its members. However, the Registration Convention does also require a state from whose territory a satellite is launched to register its orbital details with the UN.[150]
An analogy between the allocation of frequencies and orbits in space governance, and the allocation of IP addresses in Internet governance, has already been suggested above. More broadly than this, the ITU’s policies for allocation of frequencies and orbits are not directly comparable to the equivalent policies of IANA, since IANA maintains hundreds of registries, which are administered according to a variety of different policies, ranging from first-come, first served, through to the achievement of consensus within the IETF and the publication of a standards-track RFC.[151]
5. Conclusion
Whilst it is often observed that there are significant conceptual similarities between the regimes for governance of the Internet and of outer space, these relate mainly to the character of the subject matter in each case; a universal resource that is to be shared and preserved for all humanity. Perhaps more significant than the similarities however are the differences in the way that these governance regimes have evolved.
These differences stem from the genesis of Internet governance as a largely privately-organised activity, in contrast to that of outer space governance which was an intergovernmental concern from the outset. This is reflected in:
• the sources of law in each regime, which in the case of Internet governance are largely constituted by the ‘transnational law’ of private ordering and governance by network, increasingly supplemented by a patchwork of domestic law and intergovernmental instruments; but in the case of space governance are much more reliant upon an overarching framework of international law including the Outer Space Treaty;
• the actors and stakeholders in each case, which in the case of Internet governance have largely emerged from civil society and the private sector, with governmental and intergovernmental actors becoming involved only later, whereas in the case of space governance precisely the reverse has been the case; and
• the substantive issues arising in each regime, which in the two cases examined in this paper demonstrate a number of similarities, but are addressed by different policy development mechanisms; including in the case of Internet governance the multi-stakeholder governance network of the IGF, and in the case of space governance a more traditional model of intergovernmental diplomacy in which other stakeholder groups participate only as advisors and advocates.
The relevance of this distinction for space governance is that it has been suggested that the multi-stakeholder model of Internet governance offers a template for other governance regimes, towards which it is predicted they will progressively evolve.[152] A hallmark of this evolution will be the empowerment of those stakeholder groups, including civil society, that have been the most excluded from transnational public policy governance in the past, and the introduction of new soft mechanisms of governance.
For Internet governance on the other hand, space governance provides a model of an alternative approach to the governance of some of the regime’s most contentious issues, both institutional and substantive. Some of those issues that are indicated by the brief overview given in this article include:
• how claims of national sovereignty, and the opposing interests of stakeholders, can be balanced with the value of maintaining an international resource for the benefit of all;
• how the United States can share multilateral (or multi-stakeholder) policy authority despite having made an earlier and greater contribution to the development of the regime than its peers;
• how critical resources can be equitably distributed between early, well-resourced claimants and later, disadvantaged claimants who might not yet have the capacity to exploit them; and
• how cross-jurisdictional issues can be managed through the use of transnational governance structures to avoid the anomolies that result from overlapping domestic regulation.
Whilst international law will not be the most appropriate mechanism for addressing all of these issues, a case can at least be made for its greater use in Internet governance to provide firmer institutional grounding to an unstructured (and on some accounts unbalanced) regime.[153] But in doing so, it will be important to hold fast to a principle that the Internet governance regime has already innovated: that ‘international management of the Internet should be multilateral, transparent and democratic, with the full involvement of governments, the private sector, civil society and international organizations’.[154]
[*] Jeremy Malcolm is a Project Coordinator for Consumers International working on Access to Knowledge and related issues of communications rights. Parts of sections 1.1, 2.1 and 3.1 of this article are adapted from the author's book Multi-Stakeholder Governance and the Internet Governance Forum published by Terminus Press in 2008, which was in turn based on his PhD thesis in law.
[1] Henry H Perritt Jr, 'The Internet is Changing the Public International Legal System' (2000) 88 Kentucky LJ 885, 928; and see Rolf H Weber, Regulatory Models for the Online World (2002) 76; Stuart Biegel, Beyond Our Control? Confronting the Limits of Our Legal System in the Age of Cyberspace (2001) 172-174; Group for the Internationalization of the Cyberspace, Declaration of Lima (2003) ALFA-REDI http://www.alfa-redi.org/ar-dnt-documento.shtml? x=3499 at 30 April 2008.
[2] James N Rosenau, ‘Governance, Order and Change in World Politics’ in James N Rosenau and Ernst-Otto Czempiel (ed), Governance Without Government: Order and Change in World Politics (1992), 5.
[3] Stephen D Krasner, ‘Structural Causes and Regime Consequences: Regimes as Intervening Variables’ (1982) 36 International Organization 1.
[4] Eisuke Suzuki, ‘The New Haven School of International Law: An Invitation to a Policy-Oriented Jurisprudence’ (1974) 1 Yale Stud In World Pub Order 1, 36; Harold D Lasswell and Myres S McDougal, Jurisprudence for a Free Society: Studies in Law, Science, and Policy (1992).
[5] Harold H Koh, ‘Transnational Legal Process’ (1996) Neb LR 75; Idem, ‘Opening Remarks: Transnational Legal Process Illuminated’ in Michael Likosky (ed) Transnational Legal Processes: Globalization and Power Disparities (2002) 327.
[6] Philip Jessup, Transnational Law (1956); Peer Zumbansen, ‘Globalization and the Law: Deciphering the Message of Transnational Human Rights Litigation’ (2004) 12:5 German LJ 1499.
[7] Gunther Teubner, ‘Global Bukowina: Legal Pluralism in the World Society’ in Gunther Teubner (ed) Global Law Without a State (1997).
[8] See generally Christos J P Moschovitis, History of the Internet: A Chronology, 1843 to the Present (1999) and Barry M Leiner et al, A Brief History of the Internet (2003) ISOC http://www.isoc.org/internet/ history/brief.shtml at 30 April 2008.
[9] Debora L Spar, ‘Lost in (Cyber)space: The Private Rules of Online Commerce’ in Claire Cutler, Virginia Haufler and Tony Porter (eds) Private Authority and International Affairs (1999); Marcus F Franda, Governing the Internet: The Emergence of an International Regime (2001) 203.
[10] WGIG, Report of the Working Group on Internet Governance (2005) WGIG http://www.wgig.org/docs/WGIGREPORT.pdf at 30 April 2008, 4.
[11] Jeremy Malcolm, Multi-Stakeholder Governance and the Internet Governance Forum (2008) 68-69.
[12] See http://www.icann.org/
[13] IETF, IAB Official Protocol Standards (1998) IETF http://www.ietf.org/ rfc/rfc1083.txt at 30 April 2008
[14] But see Milton Mueller, Ruling the Root: Internet Governance and the Taming of Cyberspace (2002).
[15] Some of the most cogent of which is found in A Michael Froomkin, ‘Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution’ (2000) 50 Duke LJ 17; Jonathan Weinberg, ‘ICANN and the Problem of Legitimacy’ (2000) 50 Duke LJ 187 and Michael Froomkin David Post and David Farber, Elusive Consensus (1999) ICANN Watch http://www.icannwatch.org/archive/elusive_ consensus.htm at 30 April 2008.
[16] Ian Hurd, ‘Legitimacy and Authority in International Politics’ (1999) 53:2 International Organization 379; Susan Strange, 'Territory, State, Authority and Economy: A New Realist Political Ontology of Global Political Economy' in Robert Cox (ed) The New Realisms: Perspectives on Multilateralism and World Order (1997) 9. On one view though, the contribution to this phenomenon of the underlying authority of the United States government should not be underestimated: A Michael Froomkin, ‘Form and Substance in Cyberspace’ (2002) 6 Journal of Small and Emerging Business Law 93, 94.
[17] See http://www.icann.org/cctlds/agreements.html
[19]IETF, Host Software (1969) IETF http://www.ietf.org/rfc/rfc1.txt at 30 April 2008.
[21] See D Crocker, Making Standards the IETF Way (1993) ISOC http://www.soc.org/internet/standards/papers/crocker-on-standards.shtml at 30 April 2008.
[23] WSIS, Geneva Declaration of Principles (2003) ITU http://www.itu.int/ wsis/docs/geneva/official/dop.html at 30 April 2008, para 48.
[24] WSIS, Tunis Agenda for the Information Society (2005) ITU http://www.ituint/wsis/docs2/tunis/off/6rev1.html at 30 April 2008, paras 67-71.
[25] Ibid, paras 73, 77 and 79.
[26] Anthony Clark Arend, Legal Rules and International Society (1999) 24.
[27] Malcolm, Multi-Stakeholder Governance and the Internet Governance Forum, above n 11.
[28] WSIS, Tunis Agenda for the Information Society (2005), above n 24, para 60.
[29] Treaty on Principles Governing the Activities of States in the Exploration of Outer Space, Including the Moon and Other Celestial Bodies, 27 Jan 1967, 1967 ATS No 24 (Outer Space Treaty).
[30] The Antarctic Treaty, 1 Dec 1959, 1961 ATS No 12 (entry into force 23 Jun 1961).
[31] International Convention for the Regulation of Whaling, 2 Dec 1946, 1948 ATS No 18 (entry into force 10 Nov 1948) (International Whaling Convention).
[32] United Nations Convention on the Law of the Sea, 10 Dec 1982, 1994 ATS No 31 (entry into force 16 Nov 1994).
[33] WSIS, Geneva Declaration of Principles (2003), above n 23, para 4.
[34] Articles I and II were elaborated in the Moon Agreement of 1979 (Agreement Governing the Activities of States on the Moon and other Celestial Bodies, 18 Dec 1979, 1986 ATS No 14 (entry into force for Australia 6 Aug 1986)). However as this agreement was never ratified either by the USA or the former USSR, it has had little impact in practice.
[35] Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 22 Apr 1968, 1986 ATS No 8 (entry into force for Australia 18 Mar 1986) (Rescue Agreement).
[36] ITU, Radio Regulations (2005) ITU http://life.itu.int/radioclub/rr/frr. htm at 30 April 2008 Appendix 13.
[37] Darrel C Menthe, ‘Jurisdiction in Cyberspace: A Theory of International Spaces’ (1997-1998) 4 Mich Telecom and Tech L Rev 69.
[38] Convention on International Liability for Damage Caused by Space Objects, 29 March 1972, 1975 ATS No 5 (entry into force for Australia 20 Jan 1975) (Liability Convention).
[39] See http://www.wipo.int/amc/en/processes/
[40] Convention on Registration of Objects Launched into Outer Space, 14 Jan 1975, 1986 ATS No 5 (entry into force for Australia 11 Mar 1986) (Registration Convention).
[41] And so it is; see http://www.unoosa.org/oosa/showSearch.do
[43] To put this in more concrete terms, Google, one of the world’s most popular and profitable Web sites, does not reach the Web browsers of users directly, but via the networks of various telecommunications providers and ISPs. However, carriage of Google’s data incurs costs for those telecommunications providers and ISPs, which they cannot recover directly from Google as (in most cases) they have no contractual relationship with it. The question is whether they may apply a lower priority to the traffic between Google and its end users that passes through their networks (in practical terms, slowing it down), unless Google pays them for preferential treatment. Traditionally this has not been the case, as the networks of telecommunications carriers have applied equal priority to all telephone calls and Internet data transmitted across them. Compare Craig Newmark, Newmark: Keep the Internet Neutral, Fair and Free (2006) CNN http://www.cnn.com/2006/US/06/09/newmark.internet/ index.html at 30 April 2008 and http://www.savetheinternet.com/, to Mike McCurry, McCurry: Upgrading the ‘Creaky’ Internet (2006) CNN http://www.cnn.com/2006/US/06/09/mccurry.internet/index.html at 30 April 2008 and http://handsoff.org/.
[44] BBC News, Defeat for Net Neutrality Backers (2006) BBC http://news.bbc.co.uk/1/hi/technology/5063072.stm at 30 April 2008.
[45] Milton Mueller, Net Neutrality as Global Principal for Internet Governance (2007) Internet Governance Project http://www.internetgovernance. org/pdf/NetNeutralityGlobalPrinciple.pdf at 30 April 2008.
[46] This prospect is a remote one, given that the IGF's Secretariat and Multi-Stakeholder Advisory Group as presently constituted have cast the IGF in the role of a mere discussion forum, lacking the capacity to perform policy development: Malcolm, Multi-Stakeholder Governance and the Internet Governance Forum, above n 11, 423. However, the development of a draft treaty was earlier put forward as an appropriate function for the IGF: Internet Governance Caucus, Initial Reactions to the WGIG Report (2005) ITU http://www.itu.int/wsis/ docs2/pc3/contributions/co23.doc at 30 April 2008, 3.
[47] Bertrand de la Chapelle, ‘The Internet Governance Forum: How a United Nations Summit Produced a New Governance Paradigm for the Internet Age’ in Christian Moeller and Arnaud Amourou (eds) Governing the Internet: Freedom and Regulation in the OSCE Region (2007) 19.
[48] WSIS, Geneva Declaration of Principles, above n 23, para 35.
[49] Malcolm, Multi-Stakeholder Governance and the Internet Governance Forum, above n 11, 332-333.
[50] See http://www.icann.org/general/JPA-29sep06.pdf
[51] NTIA, US Principles on the Internet's Domain Name and Addressing System (2005) NTIA http://www.ntia.doc.gov/ntiahome/ domainname/USDNSprinciples_06302005.htm at 30 April 2008.
[52] David G Post, ‘Against “Against Cyberanarchy”’ in Adam Thierer and Clyde Wayne Crews Jr (eds) Who Rules the Net? Internet Governance and Jurisdiction (2003) 71, 86.
[53] OECD, OECD Guidelines for the Security of Information Systems and Networks: Towards a Culture of Security (2002) OECD http://www.oecd.org/dataoecd/16/22/15582260.pdf at 30 April 2008.
[54] General Assembly of the United Nations, Creation of a Global Culture of Cybersecurity: Resolution (2003) United Nations http://documents-dds-ny.un.org/doc/UNDOC/GEN/N02/555/22/pdf/N0255522.pdf at 30 April 2008.
[55] See http://www.oecd-antispam.org/
[56] OECD, Guidelines for the Protection of Privacy and Transborder Flows of Personal Data (1980) OECD http://www.oecd.org/document/18/ 0,2340,en_2649_34255_1815186_1_1_1_1,00.html at 30 April 2008.
[57] Idem, OECD Guidelines for Consumer Protection in the Context of Electronic Commerce (2000) OECD http://www.oecd.org/dataoecd/18/ 13/34023235.pdf at 30 April 2008.
[58] See http://www.ecommerce.treasury.gov.au/
[59] OECD, OECD Guidelines for Protecting Consumers from Fraudulent and Deceptive Commercial Practices Across Borders (2003) OECD http://www.oecd.org/dataoecd/24/33/2956464.pdf at 30 April 2008.
[60] Council of Europe Cybercrime Convention, 23 Nov 2001, 2003 S Treaty Doc No 108-11.
[61] See http://www.uncitral.org/
[62] UNCITRAL, UNCITRAL Model Law on Electronic Commerce (1996) http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerce/1996Model.html at 30 April 2008.
[63] Idem, UNCITRAL Model Law on Electronic Signatures (2001) http://www.uncitral.org/uncitral/en/uncitral_texts/electronic_commerce/2001Model_signatures.html at 30 April 2008.
[65] Jack L Goldsmith and Tim Wu, Who Controls the Internet?: Illusions of a Borderless World (2006) 10, 93-96; Eric Auchard, Google Agrees to Censor Service to Enter China (2006) News.com http://www.news.com/8301-10784_3-6030773-7.html at 30 April 2008.
[66] Center for Democracy & Technology, Companies, Human Rights Groups, Investors, Academics and Technology Leaders to Address International Free Expression and Privacy Challenges (2007) http://www.cdt.org/press/ 20070118press-humanrights.php at 30 April 2008.
[67] See http://www.cabforum.org/
[68] Malcolm, Multi-Stakeholder Governance and the Internet Governance Forum, above n 11, 332.
[69] General Assembly of the United Nations, World Summit on the Information Society (2002) ITU http://www.itu.int/wsis/docs/ background/resolutions/56_183_unga_2002.pdf at 30 April 2008.
[70] Renate Bloem, ‘Multi-Stakeholderism and Civil Society’ in Daniel Stauffacher and Wolfgang Kleinwächter (eds) The World Summit on the Information Society: Moving from the Past into the Future (2005) 99.
[71] Wolfgang Kleinwächter, ‘A New Diplomacy for the 21st Century? MultiStakeholder Approach and Bottom-Up Policy Development in the Information Society’ in Daniel Stauffacher and Wolfgang Kleinwächter (eds) The World Summit on the Information Society: Moving from the Past into the Future (2005), 112.
[72] P Malanczuk, ‘Actors: States, International Organizations, Private Entities’ in G Laferranderie and D Crowther (eds) Outlook on Space Law over the Next 30 Years (1997).
[73] Mark W Zacher and Brent A Sutton, Governing Global Networks: International Regimes for Transportation and Communications (1996).
[75] UN-COPUOS, Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting (1982) UNOOSA http://www.unoosa.org/oosa/SpaceLaw/dbs.html at 30 April 2008.
[76] Idem, Principles Relating to Remote Sensing of the Earth from Outer Space (1986) UNOOSA http://www.unoosa.org/oosa/SpaceLaw/rs.html at 30 April 2008.
[77] UN-COPUOS, Principles Relevant to the Use of Nuclear Power Sources in Outer Space (1992) UNOOSA http://www.unoosa.org/oosa/en/Space Law/nps.html at 30 April 2008.
[78] See http://www.unoosa.org/oosa/en/SpaceLaw/gares/index.html
[79] V S Verescchetin and G M Danilenko, ‘Custom as a Source of International Law of Outer Space’ (1985) 13 J Space L 22, 30.
[80] See http://www.unoosa.org/
[81] See http://www.unoosa.org/oosa/en/sapidx.html
[82] See for example the record of attendance of the 2007 meeting of the Scientific and Technical Subcommittee: UN-COPUOS, Report of the Scientific and Technical Subcommittee on its Forty-Fourth Session (2007) UNOOSA http://www.unoosa.org/pdf/reports/ac105/AC105_890E. pdf at 30 April 2008.
[84] See http://www.iafastro.com/
[85] Idem, Report of the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space (1999) UNOOSA http://www.unoosa.org/ pdf/reports/unispace/ACONF184_6E.pdf at 30 April 2008, 78.
[86] Ibid, 91.
[89] Space Station Intergovernmental Agreement, 28 Jan 1998.
[90] Serge Brunier, Space Odyssey: The First Forty Years of Space Exploration, (2002); People's Daily, World Leaders Congratulate China's Shenzhou V Success (2003) http://english.people.com.cn/200310/16/eng20031016_ 126161.shtml at 30 April 2008.
[91] See http://science.hq.nasa.gov/research/space_science_data.html
[92] See http://scaled.com/projects/tierone/
[94] Agreement relating to the International Telecommunications Satellite Organization ‘INTELSAT’, 20 Aug 1971, 1972 ATS No 6 (entry into force 12 Feb 1973) (INTELSAT Agreement).
[95] See http://www.intersputnik.com/
[97] See http://www.intelsat.com/
[98] See http://www.inmarsat.com/
[99] See http://www.arianespace.com/
[100] See http://www.indosat.com/
[101] See http://www.eutelsat.com/
[102] See http://www.arabsat.com/
[105] See http://www.planetary.org/
[106] See http://www.nssa.com.au/
[108] See http://www.isunet.edu/
[109] See http://www.amsat.org/
[110] Martin R Davidoff, The Satellite Experimenter's Handbook (1984), 3-1.
[111] WGIG, Report of the Working Group on Internet Governance, above n 10, 5.
[112] Actually that term is never defined, save that paragraph 58 indicates that it is broader than domain names and IP addresses, in a paragraph drawn from WGIG’s report: ‘Internet governance includes more than Internet naming and addressing. It also includes other significant public policy issues such as, inter alia, critical Internet resources ...’
[113] Pablo Accuosto, WSIS Wraps Up With Mixed Emotions (2005) Choike http://www.choike.org/nuevo_eng/informes/3730.html at 30 April 2008.
[114] See NTIA, US Principles on the Internet's Domain Name and Addressing System, above n 51.
[115] WSIS, Tunis Agenda for the Information Society, above n 24, paras 63 and 77.
[116] Berne Convention for the Protection of Literary and Artistic Works, 9 Sep 1886, as revised 13 Nov 1908, completed 20 Mar 1914, revised 2 Jun 1928 and revised 26 Jun 1948, 1969 ATS No 13 (entry into force for Australia 1 Jun 1969).
[117] Paris Convention for the Protection of Industrial Property, 20 Mar 1883, as revised 14 Dec 1900, 2 Jun 1911, 6 Nov 1925, 2 Jun 1934, 31 Oct 1958, and 14 Jul 1967, 1972 ATS No 12 (entry into force for Australia of substantive provisions 27 Sep 1975).
[118] International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 26 Oct 1961, 1992 ATS No 29 (Rome Convention) (entry into force for Australia 30 Sep 1992).
[119] WIPO Copyright Treaty, 20 Dec 1996.
[120] WIPO Performances and Phonograms Treaty, 20 Dec 1996.
[121] MGM v Grokster [2004] USCA9 554; (2004) 380 F 3d 1154.
[122] The most celebrated being the DeCSS crack for the Content Scrambling System (CSS) used on DVD (Digital Versatile Discs): Universal City Studios Inc v Reimerdes (2000) 111 F.Supp.2d 294.
[123] RIAA v Verizon Internet Services [2003] USCADC 251; (2003) 351 F 3d 1229, and for an early perspective see Jeremy Malcolm, ‘Opinion: APRA v Telstra’ (1998) 32 Intellectual Property Forum 6.
[124] Liane Cassavoy, Music Labels Declare War on File Swappers (2003) PC World http://www.pcworld.com/article/id,112364-page,1/article. html at 30 April 2008.
[126] See http://www.efa.org.au/
[127] See http://www.creativecommons.org/
[129] IGF Secretariat, Inaugural Meeting Background Report (2006) IGF http://www.intgovforum.org/synth/E.doc at 30 April 2008 6; WIPO, Statement of the World Intellectual Property Organization (2006) IGF http://intgovforum.org/contributions/FINALSTAT%5B1%5D.doc at 30 April 2008.
[130] Idem, Member States Adopt a Development Agenda for WIPO (2007) http://www.wipo.int/pressroom/en/articles/2007/article_0071.html at 30 April 2008.
[131] WGIG, Report of the Working Group on Internet Governance, above n 10, 12, drawing in the case of the second and third points from para 48 and 49 of the Declaration of Principles.
[132] NTIA, US Principles on the Internet's Domain Name and Addressing System, above n 51.
[133] IETF, Internet Protocol, Version 6 (IPv6) (1998) IETF http://www.ietf.org/rfc/rfc2460.txt at 30 April 2008.
[134] Idem, Internet Registry IP Allocation Guidelines (1996) IETF http://www.ietf.org/rfc/rfc2050.txt at 30 April 2008.
[135] WGIG, Report of the Working Group on Internet Governance, above n 10, 7.
[136] Marvin S Soroos, ‘The Commons in the Sky: The Radio Spectrum and Geosynchronous Orbit as Issues in Global Policy’ (1982) 36:3 International Organization 665, 673.
[137] UN-COPUOS, Report of the Third United Nations Conference on the Exploration and Peaceful Uses of Outer Space, above n 85, 112-113.
[138] Patrick Collins and Koichi Yonemoto, Legal and Regulatory Issues for Passenger Space Travel (1998) Space Future Journal http://www.spacefuture.com/archive/legal_and_regulatory_issues_for_passenger_space_travel.shtml at 30 April 2008.
[139] Wayne White, The Legal Regime for Private Activities in Outer Space (2001) Space Future Journal http://www.spacefuture.com/archive/ the_legal_regime_for_private_activities_in_outer_space.shtml at 30 April 2008.
[140] Perritt Jr, above n 1, 929.
[141] Convention relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite, 21 May 1974, 1990 ATS No 30 (entry into force for Australia 26 Oct 1990) (Brussels Convention).
[142] Anna-Maria Balsano and Bradford Smith, ‘Intellectual Property and Space Activities: A New Role for COPUOS?’ in D Crowther and G Lafferranderie (eds) Outlook on Space Law Over the Next 30 Years: Essays Published for the 30th Anniversary of the Outer Space Treaty (1997) 363.
[143] Bin Cheng, ‘The Commercial Development of Space: The Need for New Treaties’ (1991) 19:1 J Space L 17.
[144] Balsano and Smith, above n 142.
[145] 35 USC 105, 1990 (Inventions in Outer Space).
[146] Chukeat Noichim, The Protection of Intellectual Property Rights in Outer Space of the EU and Thailand (1998) http://asialaw.tripod.com/articles/ ipspacenoichim.html at 30 April 2008.
[147] Perritt Jr, above n 1, 929.
[148] Soroos, above n 136, 667-668.
[149] Yvon Henri, Orbit/Spectrum Allocation Procedures: Registration Mechanism (2002) ITU http://www.itu.int/ITU-R/conferences/ seminars/mexico-2001/docs/06-procedure-mechanism.doc at 30 April 2008.
[150] This is mostly duplicative of the ITU’s register, except to the extent that a private satellite might be launched, say for hobbyist or scientific purposes, by a non-member of the ITU.
[151] See http://www.iana.org/numbers.html
[152] de la Chapelle, above n 47.
[153] John Mathiason, A Framework Convention: An Institutional Option for Internet Goverance (2005) Internet Governance Project http://www.internetgovernance.org/pdf/igp-fc.pdf at 30 April 2008.
[154] WSIS, Geneva Declaration of Principles (above n 23), para 48.
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