[discuss] governments and rule of law (was: Possible approaches to solving...)

[Milton L Mueller]

-----Original Message-----
> while there are good reasons to distrust governments the important 
>resource behind governments is the rule of law including administrative 
>law that both enables and constraints government actions.
>I cannot imagine any form of democracy that could do without rule of law. 

Jeanette, Yes! The proper role for governments is to produce and enforce general laws/rules, hopefully rules that efficiently order and enable action (e.g., by upholding individual rights and protecting against their violation). 

The problem with governments' activities in the internet space is that they have deliberately shirked this role, and instead reached for a more arbitrary and inappropriate role as "public policy" maker. As our experience with the GAC has shown, goverments don't want to define objective, clear rules, they want to intervene on a discretionary basis based on political whims and power grabs which they call "policy."  "Policy" means: whatever I want at the moment.

So, for example, in ICANN we debated for years what laws or rules could be used to decide which top level domain names would be inappropriate. In the end all the governments - especially the U.S. - were completely unwilling to formulate rules in advance or to ground them in any kind of established principles of international law. Instead, they insistently demanded - and eventually got - a right to object to any individual TLD application after they saw it, "for any reason." This was rationalized thinly as part of their "public policy" claim. In fact, the U.S. was simply afraid that decisions based on real law would allow domains that would alienate certain governments, and they want to throw these governments a bone so they would stick with the ICANN regime.  

Think about it: a state can suppress a certain kind of expression "for any reason." COMPLETELY unconstitutional in the U.S. legal regime. COMPLETELY against the spirit of the European Convention on Human Rights. Don't talk to me about governments and the "rule of law" in this context. And don't think the TLD case is some kind of aberration. It is the consistent pattern of state behavior in Internet governance. 

Now they are repeating the pattern with respect to geographical names. The objections to Amazon being a perfect example. Lacking any basis in international law restricting public use of the name of a river, Latin American states killed a TLD application based on entirely political claims about what they don't like, not based on any established law. European states led the process into a similar morass regarding geographical indicators.

I cannot remember how many times I have asked representatives of governments in the GAC: if you are so concerned about X and Y problems related to ICANN or the  Internet, why dion't you all get together and pass a treaty about it, which can then bind ICANN and other internet-related institutions? The answer is always the same; if it is not a sheepish silence it is "oh, that's too difficult, and besides we don't all agree on what the rule should be."

Never forget: the international system is anarchic. There is no real "international" law, at least not yet, because there is no real international government.  Therefore, power-based political bargaining fills the vacuum. That is why govts are especially dangerous in this context. The resistance to them is not some naïve and immature resistance to the constraints of the real world. It is a very realistic, experience-based understanding of how easily power can be abused in the transnational context.