[Maarten Van Horenbeeck] [International Relations and Political Science]



The Internet and its influence on state sovereignty

Maarten Van Horenbeeck
maarten@daemon.be


Abstract

This paper argues that there is some truth to the commonly coined decline of state sovereignty hastened by the Internet, but for a reason not often covered by other analysts. The paper reviews, by taking a broad review of literature in the field, the basic tenets of the concept of state sovereignty, and evaluate existing claims of its erosion and/or strengthening due to globalization. The paper will then briefly review the impact the Internet, and in particular the way it is governed, has had on state sovereignty. It will show, using a number of examples, that there is a clear control gap between national governments and the Internet. As on-line public space grows, this is bound to result in the nation state surrendering some of its traditional principles, unless states take excessive measures such as the blocking of Internet sites. The paper reviews an example of a state taking action on this to recover some of the lost terrain, and of how international law contributes to increasing the acceleration the reduction in national sovereignty.

Keywords: Sovereignty, internet, internet governance

Sovereignty of the state

Hirst and Thompson narrate Max Weber when they state that "the distinctive feature of the modern state is the possession of the monopoly of the means of violence within a given territory". While this may have been the origin of state sovereignty, they quickly explore other roles for the modern state: providing public health services or national education in exchange for taxation, or managing the national economy. Nonetheless, they argue that without the threat of war, the state becomes less significant to the citizen. They also show that as we move into a complex and pluralistic system, where transnational companies and organizations have more power, the rule of law will become more important. They state that "in the sphere of administrative regulation, 'gaps' between jurisdictions are fatal to the certainty and security necessary for actors in a commercial society, for they allow the unscrupulous to evade their own obligations and to violate others' rights" (Hirst and Thompson, 1995).

Perritt finds that while globalization, and the Internet in particular, is often considered a threat to sovereignty, it can also serve to strengthen national and global governance. He argues that information technology, such as radio and television is often used by authoritarian leaders to control and influence the behavior of their population. Acknowledging that the Internet poses specific risks, due to its global availability, low barrier to entry, and difficulties in blocking it at a national level, he notes three particular potential forces the Internet can contribute: "strengthening international law", "strengthening economic interdependence", "empowering non-state actors" and "improving international security mechanisms" (Perritt, 1998). By creating a more integrated, international market in which international players can operate, the network of states can become safer and more stable, thus guaranteeing the freedom and sovereignty of states, with only minimal casualties in domestic power.

Globalization can also have more mundane, "low politics", consequences on the strength of the state. Kriesi, Grande et al. denote that globalization will result in likely winners to be entrepreneurs in traditionally open industries, and losers to be entrepreneurs in traditionally closed industries. Both types of participants in the domestic economy are represented by particular political parties. For instance, social democrats tend to be focused on economic demarcation (opposition to EU integration) with high cultural integration, whereas the right tends to be focused on economic integration and cultural demarcation. They show that unbundling of boundaries will paradoxically strengthen the "losers" by giving them more political power to protect their constituency. Hence globalization does not only directly affect sovereignty, for instance by transferring historically national services (e.g. mail & shipping) to international corporations, but also by transforming the domestic political environment, which will then influence the speed with which these changes affect the state.

The rise of the Internet

In 1999, Sassen published a comprehensive review of the influence the Internet was having on sovereignty. She identified a discrepancy between considering the impact only of the "public digital space", noting that in fact, private digital networks were quickly having the greatest influence on sovereignty, through accommodating globalization of financial markets. She also noted that the growth of commerce online was not just democratizing, but could also create new forms of inequality- hinting that individuals may once again look for the protection of minorities the state can offer, online (Sassen, 1999).

This is interesting, as protecting minority space online moves beyond the original role of the state, transforming the principle of "monopoly on violence" to a "monopoly of enforcement of law"- especially in cases of freedom of speech, or protection of minority opinion.

Evans states that Nettl in 1968 argued that "stateness" -the institutional centrality of the state- varies between nations. Evans argues that while in the days of Nettl, alternatives to the state were elements which today would be considered to be part of it, such as the legal system or political parties. Today, Evans indicates, alternatives to the state are private sector organizations who commit to international trade. And in this, he argues that international trade tends to be associated with an "increased role for the state rather than a diminished one", mainly by compensating for the loss of direct control by growing the public sector in charge of managing it. Freund and Weinhold (2004) showed that the "internet stimulates trade" by identifying a positive correlation between the number of web servers and growth in exports. Combining both arguments, the internet clearly opens up a country's economy, resulting in greater opportunity but also greater risk, which in turn promotes a larger public sector to manage this risk.

On the other hand, there are also voices stating that some level of control is in fact lost by states due to the Internet. Smith and Smythe evaluated the impact of the Internet on a failed attempt to negotiate the Multilateral Agreement on Investment (MAI) within the OECD countries in 1995-1998. They performed an evaluation of the presence of organizations communicating on the MAI online, and found that "the campaign against the MAI poses a serious challenge to international trade negotiators and politicans" (Smith and Smythe, 1999). While they found the Net "not to be a panacea for all that ails citizenship", they did find trade negotiators would have issues proceeding behind closed doors with an agreement, as had been the case before the internet's explosive growth.

The Internet also opens up opportunities towards so-called "transnational democracy". Delbruck describes this as the process of denationalization, and "of a resulting public authority which is no longer exercised within clearly defined territorial entities" (Delbruck, 2003). In other words, part of the former national authority is now managed by a number of supranational organizations. Bohman (2004) performed a critical analysis of the concept, and found that in particular applied to the Internet, while it is logically expected that electronic democracy reduces intermediaries, it actually may add some, giving, or taking control from the parties in a communication. Bohman uses the example of a forum, but any organization offering Internet services, such as Facebook, Google or Hotmail today, would meet his definition. Bohman argues that it is not a given that the particular democratic intermediaries today (such as the national government) lose their representative power- though he acknowledges it as one possible outcome. As a counterexample he notes the possibility for "directly deliberative institutions" to arise, noting a number of examples in the European Union decision-making processes. In this world view, sovereignty of the national government could both be reduced or strengthened, depending on its approach.

Internet Governance

But some hints towards a loss of control can be found in the way the Internet itself, as a tool of globalization, is organized.

The governance of the Internet is implicitly international: the national government is generally not involved in deciding what services are available within the boundaries of a state. In fact, any decision to render a service unavailable requires specific blocking by the national government. Blocking is technically difficult, and requires participation of a number of service providers.

In 1998, the Internet Corporation for Assigned Names and Numbers (ICANN) was formed to manage the IP addresses and domain names used to access Internet content. While a private organization, ICANN was originally authorized under an agreement with the United States Department of Commerce (Weinberg, 2000). ICANN then sub-delegates to national organizations using the so-called country code top level domain system, in which for instance .fr is delegated to France. A national government can, in many but not all cases, decide to intervene in contact in the .fr name space, but has no control over the more popular .com namespace. The United States government, on the other hand, could technically impact both .fr and .com name spaces through law enforcement pressure on ICANN.

Historically, issues have arisen with regards to this dominant US control over the Internet. Given technical operations for the Internet are run by a US-based corporation, domestic law allows the United States to intervene in the operation of a web site, whereas a national government does not have similar ability to intervene in sites hosted in the United States.

As a result, in 2002 ICANN created a "Government Advisory Committee" or GAC, which contains representation of all national governments. While the GAC only has an advisory role, ICANN must respond to each concern raised by the organization (Kumar and Mowshowitz, 2006).

Realizing the importance of the "information society", the United Nations organized the World Summit on the Information Society (WSIS). Unique about this event is that it took a multi-stakeholder approach to Internet governance- inviting civil society and nongovernmental organizations to participate in the debate on how governance of the information society is to take place (Zehle, 2012). Van Eeten notes that this process addressed few of the issues which had led to its inception. The United Nations subsequently developed the Internet Governance Forum, which in his words are a "non-threatening, non-binding venue for multi-stakeholder dialogue" (Van Eeten, 2012).

Technical control over much of Internet infrastructure is today still in the hands of the ICANN, the engineers in the IETF and to a lesser degree telecom regulation in the International Telecommunications Union and its World Conference on International Telecommunications (WCIT) conference. The ITU and WCIT, previously a venue to discuss technical arrangements with regards to phone and telefax communications, was in 2012 seen as a forum to discuss Internet decision making- yet changes proposed by numerous countries which would enable it to become one were dissented by a number of countries including Australia and the United States (Ackerman, 2012).

IGF, on the other hand, enables everyone to convene and raise important issues in the way the Internet is developed. While direct influence and action is not an outcome of the IGF conferences, they allow multi-stakeholder debate to take place, and ideas to be exchanged. Ideas expressed at the IGF are publicly made available, and now have the ability to influence the debate in very real ways. A small look at mainstream topics for the next IGF conference in Istanbul indicate strong civil society interest in "locally created content", "child online protection", "affordable Internet access" and "communications surveillance and its impact on human rights" (IGF, 2014).

These developments indicate that intrinsically, hard, realist "power" on the Internet is not evenly distributed. Most decision-making is in the hands of the United States Government, through its indirect control over the ICANN organization. Some decisionmaking is in the hands of the International Telecommunications Union, which is governed by all states. While inroads have been made to enable governments to become involved in the decision-making process, most of these consist of meritocracies which involve multiple stakeholders, and not just states.

The Internet: a special place with unique laws?

Internet governance raises the question whether the Internet is a "special" place, subject to "unique" rules developed by a multi-stakeholder group, in which civil society can play a large role. Or, whether, on the other hand, it is a place in which domestic laws uniformly apply in a way similar to physical life.

If truly a "special place", it enables it to be a prime place of open discussion, unfettered by government access controls, and less subject to national law, which fits in well with organizations attempting to change the status quo, such as the Global Justice Movement.

The Global Justice Movement, "a diverse collection of groups that focus on a wide range of social issues, from poverty, the environment, sexual politics, and corporate greed to human rights, the AIDS epidemic, labor rights, and the perils of capitalism" criticizes modern supranational institutions such as the WTO, IMF and World Bank, and often proposes alternatives to neoliberal capitalism (Boykoff, 2006). The goals of the Global Justice Movement are often not in line with the views of the state in which parts of it operates. Having a "special" public commons unregulated by national law would significantly help it in propagating its message.

An early example of such networked dissent was the Chiapas uprising in Mexico, which took place in 1994. At that time, an undisputable local movement, the Ejercito Zapatista de la Liberacion Nacional (the "Zapatistas", or EZLN) occupied several towns in the state of Chiapas. While the initial response of the government was violent, this behavior quickly altered as international NGO's were mobilized using the Internet and network technology (Froehling, 1997). Given the limited impact the government had on the Internet, news on the events could quickly and easily spread abroad. Froehling notes that "Social space is continually produced, reproduced and contested"- in the case of the Internet he particularly finds that "Territories (states) are no longer the building blocks of international relations; they are questioned and constantly restructured. States and nations are produced by a variety of converging flows of capital, of goods, of migrants, and of information". When the state no longer controls information flows, it inherently loses some control.

A logical question to ask are what steps governments have taken to remain in control of their own destiny, and whether they have attempted to limit information flows to enable them to maintain full control over their decisions.

One example of a strong government response is China, which employs "central government control of access to foreign web pages" (Harwit and Clark, 2001). Harwit and Clark note that while the government aims to limit access to certain foreign content, especially of a political nature, and require local providers to police their own sites for such banned material, certain controversial topics apparently are allowed to be discussed in an unfettered manner. They specifically list out political debate related to the 1999 Chinese embassy bombing in Yugoslavia. They also note that some of this discussion does have influence on Chinese policy. Hence China appears to maintain some control, while permitting dialogue in other situations where it is convenient or otherwise deemed acceptable.

Another, more international example of government interest in banning material was the "Innocence of Muslims" video which was released onto Google's Youtube in September of 2012. Given the provider of the video was an American company, and it did not immediately take action, there were a number of international requests to both Google and the United States government to remove the content, which was considered blasphemous in many countries. On September 17 th , the Pakistani government even went as far as to block access to Youtube altogether (Ghosh, 2012).

As Hirst and Thompson noted earlier, a universal law system is important where "gaps arise between jurisdictions". Aswad evaluated the International Covenant on Civil and Political Rights, a treaty signed to which 167 states are a party, and found that international law did not require the United States to take down "blasphemous content". While certain discussion, such as inciting war, is directly prohibited by the treaty, there were no provisions which applied to the Innocence of Muslims video.

Aswad refers to a 2011 resolution adopted by consensus in the UN General Assembly, with support of the Organization of Islamic Cooperation, which "encourages states to speak out against intolerance, train government officials in effective outreach strategies, enforce anti-discrimination laws, engage in education and awareness building, promote inter-faith dialogue, and counter illicit religious profiling" (Aswad, 2013). According to Aswad, this implies that states recognized sufficient tools were available in the international toolbox to deal with defamation of religions. Pakistan's response to the incident seems to imply that these tools may still be considered insufficient.

Counter argument: the tension between internet access and control

The variety of examples, points and counterpoints clearly indicates that there is no clear and logical outcome on whether state sovereignty is strongly affected by the growth of globalization, and the Internet in particular. However, this variety of views indicates that much of the outcome truly is the result of conscious policy making.

A country, such as the example of China, may decide to maintain a strong level of control by blocking parts of the internet. However, unless the country has a very strong economic draw, this is likely to affect the economy. Countries with extreme policies in this respect, such as North Korea, where as late as 2002, internet access was still illegal (Hachigian, 2002), will maintain vast amounts of control, but will miss out on significant economic opportunities.

On the other side, a country which reduces its level of control, will not be able to effectively respond to citizen outreach, and will need to resort to universally accepted countermeasures such as those listed in the 2011 UN Human Rights Council resolution A/HRC/RES/16/18, which encourages governments to speak out. While these are likely to have some effect, the effect will be less than in the case of more authoritarian levels of control which removes or avoids exposing the content altogether.

Given the complexity, many policy changes are untested, and additional work is recommended to take place to evaluate specific policy solutions, and their outcome on strengthening, or weakening, national sovereignty. Given unequal growth numbers in internet access across the world, there may be an opportunity here to identify different policy decisions, and evaluate their outcomes. This could be the work of a further study.

Conclusion

This paper first identified the Internet as a conduit of globalization. It then showed how the Internet is only partially governed at a national level- while national governments have some control over content in their jurisdiction, they have little control over content published outside of their country and broadcast towards a domestic audience. On the other hand, US domestic law can have a significantly wider impact on Internet content simply through its control over key infrastructure. While the Internet may be seen as a "special place" which is not subject to domestic legislation, this view is dependent on location, applicable law, and the government which aims to intervene.

Finally, the paper illustrates how the Internet, while having a clear impact on a domestic audience, is beyond the control of most governments. This lack of control supports the ideal of many in the Global Justice Movement of the Internet as a "special place" which can be used to influence domestic policy abroad. As governments often lack the tools to effectively react, this creates a "gap in jurisdiction" which enables activists to leverage the network to limit the actions a state may take in response to activist activity.

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