Rolf H. Weber, Realizing a New Global Cyberspace Framework, pp. 99–160 (Zurich 2014).
Background
The text is an extract from a book that was published by Rolf H. Weber in 2014 and condenses research work in Internet governance over the past 15 years. From 1995 onwards Weber devoted a good portion of his research capacity to topics of information law (cf. above Thürer, 2.2) and Internet law. After a couple of publications addressing specific questions of Internet law, two books by Weber are noteworthy for having laid the foundational scientific work for Internet governance and cyberlaw, namely the book «Regulatory Models for the Online World» (Zürich 2002) and the book «Towards a Legal Framework for the Information Society» (Zürich 2003). The second book was written in view of and was presented at the first World Summit on the Information Society (WSIS) in Geneva (December 2003).
During the following years Rolf H. Weber published a large number of articles concerning the manifold issues of Internet governance; this phase of research efforts has culminated in the book «Shaping Internet Governance: Regulatory Challenges» (Zürich/Berlin 2009). In this book Weber addresses the perceptions of governance and of the information society, the historical developments of the Internet institutionalisation, the organisational framework in Internet governance (ICANN, etc.), the philosophical and sociological environment (including an early description of multistakeholderism), the main discussion topics of Internet governance (legitimacy, transparency, accountability, participation) and major regulatory issues (critical resources and access, protection of civil liberties and humanisation of the Internet, security: assuring safety, trust and reliability, and bridging the digital divide).
Rolf H. Weber, being a professor in international business law at the University of Zurich, has been a member of an expert group of the Council of Europe preparing a recommendation on Internet governance principles, an expert of UNESCO for the delivery of a report comparing more than 50 declarations of Internet governance principle and vice-chairman of the steering committee of GigaNet, the academic research network on Internet governance. Furthermore, he has been instrumental in the establishment of EuroDig (the European IGF) and the Swiss IGF.
The quoted text represents the key part of the latest book of Weber in this field (published in 2014) dealing with Internet governance and the global cyberspace framework. As mentioned, it can be seen as a compilation and theoretical foundation of 15 years of research in this vastly developing legal and social field.
Summary
The book begins with an assessment of the debate confronting the traditional legal concepts with the ongoing globalisation. Starting with insight from Roman law and the Westphalian sovereignty principle designing Nation States, Weber outlines that the present international public law is in transition and that the previous concepts must be deeply reflected. Even analogies to other legal fields (such as the Law of the Sea, the Antarctica Law, the Celestial Bodies Law) cannot offer appropriate solutions in cyberspace.
The next part of the book deals with the challenges for the regulatory approaches in cyberspace. This part is rather theoretical and is based on the understanding of law as a system. Questions are raised in respect to traditional rationales and concepts of regulation. Furthermore, the importance and impact of social change as challenge for regulation are debated. Unavoidably, self-regulatory mechanisms must also play a substantial role in the regulatory regime.
The chapter with the title «In Search for New Rule-Making Approaches in Cyberspace» discusses four theoretical approaches that have been developed during the last twenty years: (i) The model of code-based regulation (Lawrence Lessig) is founded on architecture and code and problematizes the risk that code can replace law. (ii) The model of formalised standards and networks (Anne-Marie Slaughter) looks at interlinked network approaches but is confronted with the complexity in network structures. (iii) The model of informal law-making can be based on the theory of social contract (Jean-Jacques Rousseau) and reflects the informality features in law making; lex mercatoria and customary law are also possible sources. However, this approach is exposed to the problem of vagueness of the rules and the difficulty of their enforcement. (iv) The normative-oriented concepts have different roots; for example, the approach of the hybrid economy designing the information society (Yochai Benkler), the approach of «civic virtue» (David Johnson/David Post), the model of «semiotic democracy» (Jonathan Zittrain) and the model of «societal constitutionalism» (Gunther Teubner). Not all of the described approaches lead to satisfactory regulatory regimes. Therefore, Weber assesses new regulatory theories and possible future perspectives, namely the polycentric and sectoral regulation approach, the hybrid and mesh regulation approach and the global legal pluralism approach. As a consequence, Weber proposes that only the development of a heuristic and simultaneously holistic approach to rule-making in cyberspace can be managed; that is, an approach which enshrines the cyberspace universality concept and also addresses the probability of compliance with norms by the concerned communities.
The quoted text contains the «global cyberspace framework» as developed by Weber based on the elaboration and implementation of some central guiding principles. Acknowledging certain limits of rule-making approaches, Weber proposes a structured rule-making design founded on a multilayer governance structure that could contribute to the legitimacy of cyberspace rule-making. The global cyberspace framework, according to Weber, is based on five pillars; namely, the acknowledgement of formal/procedural principles (need for a dynamic and flexible approach, need for a user-centred and community-related approach), the identification of the relevant substantive principles of cyberspace, the realisation of multistakeholder participation, compliance with basic socio-legal values (acknowledgement of cultural diversity, recognition of cyberspace openness, implementation of corresponding technological values such neutrality and interoperability) and the implementation of structural governance principles (organisational management requirements, enforcement and dispute resolution requirements). Particular emphasis is put on the multistakeholder approach. Weber outlines the important elements of multistakeholderism in detail and discusses the participation of the various stakeholders in Internet governance debates leading to a higher degree of legitimacy of rulemaking.
The final chapter looks at the incorporation of a global cyberspace framework encompassing the need for an internationalisation of policy structures, the need for a multi-layer polycentric approach with multistakeholder participation, the need for consensus on guiding principles (for example, in the form of a general framework complemented by additional specific protocols) and the need for improved emphasis on the functions of law. In this context, Weber emphasises the assessment that form should be dependent on the function of law; that is, when designing an international framework for cyberspace, the function of law must be considered in more depth. The key question could be phrased as follows: What social impacts should be caused by law? The answer would have to be founded on the expectations of civil society. In times of fast-developing information technologies, civil societies are able to better rely on these principles in an informal law-making process and context than in the traditional legal regime. «Co-existence in an increasingly informal law-making environment makes it necessary to implement governance elements which encompass collective efforts enabling a proper identification and understanding of worldwide problems needed for global solutions» (p. 160).
Further developments
Subsequent to the publication of the above mentioned book, Rolf H. Weber published two articles on important topics of Internet Governance, thereby deepening the considerations in the concerned fields, namely:
- Legal foundations of multistakeholder decision-making, Zeitschrift für Schweizerisches Recht 135 (2016) I, pp. 247–267;
- Elements of a Legal Framework for Cyberspace, Swiss Review of International and European Law 26 (2016), pp. 195–215.
Recently, a compilation of 45 contributions to Internet Governance and Cyberlaw, published by Rolf H. Weber from 2002 to 2016, became available: Rolf H. Weber, Normative Movements in Internet Governance and Cyberlaw, Bern 2017.