I. Introduction

Public international law increasingly is called upon to provide a framework for private international law—treaties for recognition and enforcement of civil judgments and to limit the adjudicative jurisdiction of civil and criminal courts,[2] to codify rules for choice of law and to define safe harbors for private ordering or self regulation. New legal institutions resembling administrative agencies in the national context are emerging under treaty based public international law. These new international institutions are beginning to exercise limited quasi legislative (rule making)[3] and quasi-judicial (adjudicatory)[4] powers. While most of these bodies allow only state parties to participate formally, there is increasing pressure also to allow private standing, recognizing the growing de facto role of non-governmental organizations (“NGOs”) in international affairs.

Information technology in the form of the Internet accelerates this process in three ways. First, the Internet facilitates the negotiation of treaty based regimes, and makes it possible for new international legal machinery to operate effectively and more quickly. Second, the Internet alters the balance of interests that shape the political dynamics that determine the content of international law. Third, the Internet’s global character puts stress on traditional state-based precepts of private international law, increasing the pressure for public international law regimes to regulate Internet commerce and political activity directly or indirectly by providing frameworks for private ordering.

A. What makes the Internet special?

To evaluate the arguments presented in this article, one must understand how the Internet differs from other information technologies. Technological innovations always have required the adaptation of international legal system. Information technologies always affect international diplomacy. The telegraph changed the way wars were fought and the relations between diplomats and heads of state. Wireless telegraphy (radio) had similar profound impacts. Radio broadcasting in the 1930s helped bring the totalitarian regimes of Hitler and Mussolini to power. Television is credited for shaping American withdrawal from Vietnam and for encouraging international intervention in Bosnia and Kosovo.

But the Internet is different. For one thing, it is inherently global. Anyone can set up a Web page on a $2,000 computer, connect the computer to the Internet for $12.95 a month, and publish pages instantly visible everywhere in the world to anyone else who has connected a computer to the Internet. That kind of global reach is not true with Morse telegraphy, wireless radio communication, television or radio broadcasting. Users of older information technologies had to make special arrangements to extend their reach far across national boundaries. Users of the Internet must make special arrangements to localize their activities. Inherently, a Web page published on a server located in Tuscaloosa, Alabama is as visible in Tirana, Albania, as in Tuscaloosa.

The Internet has another important characteristic that distinguishes it from earlier information technologies. The price of entry is a “$2,000 computer. That is all one needs to broadcast to the world through the Internet or to participate in political dialogue. That is several orders of magnitude less that it costs to set up bricks-and-mortar store, a television broadcast transmitter, or to buy a printing press to publish a newspaper.

These remarkably lower economic barriers to entry for the Internet, compared with older information technologies, empowers disfavored groups within domestic political arenas; it empowers groups who want to form connections with each other across national boundaries; it empowers people who want to create or maintain NGOs.

B. Is the Internet really ubiquitous?

1. Bhuttan

2. Kosovo enthusiasm for e-commerce

3. Ukraine’s University of Internet Affairs

II. Public and private international law

Public international law conventionally addresses relations between and among sovereign states,[5] while private international law conventionally addresses relations between or among private persons who are citizens of different states. The boundary between public and private international law, though often treated as distinct, in fact, always has been indistinct.[6] Until the Twentieth Century, international law involved the personal relations of sovereigns, while the subject matter of today’s private international law was covered by municipal law.[7] Erosion of natural law theories in preference for positivism in the late Nineteenth Century widened the gap,[8] reflected in the tension between monism and dualism in international law theory.[9] Dualists distinguished sharply between public international law as the law of relations between states and private international law as the law governing persons.”[10] Monists sought unification.[11]

International commercial law straddled any gap between the two types of international law, because it regulates the activities of both individuals and states.[12] Admiralty was a strong example. Admiralty restricted the power of states against vessels belonging to nationals of other states. It also was a source of right by individuals against vessels belonging to other individuals.

The growing importance of transnational business in the late decades of the Twentieth Century and the increasing emphasis on international human rights law in the same time period stimulated a return to a more unified view,[13] albeit without an explicit abandonment of positivism as the theoretical foundation. The goal of International Law is to create and maintain systemic stability, to reduce frictions among states. Global commerce and political international, accelerated by the Internet, threatens to increase interstate friction unless international law keeps pace. The goal of International Law always has been universality, the result, politically, of harmonization, and convergence. More harmonization, resulting from struggles to allow the Internet to flourish, means greater scope for international law.

A. What is private law?

“The terms "public" and "private" law are common in a variety of contexts and have also carried a variety of other meanings. Because the public/private distinction emerged from the notion that there is a separate and distinct private order, private law can be understood as protecting "pre-political rights. . . . Private law, then, was that part of the legal system protecting the private ordering; public law consisted of government compulsions restricting private freedom." Under that definition, property law, tort law, and contract law may be considered examples of private law, and labor law and constitutional law public law.”[14]

According to Philip Frickey and Daniel Farber, the traditional conception of private law says that it is that part of the legal system that protects private ordering, while public law consists of governmental compulsions restricting private freedom.[15] Now, they observe, the distinction between public and private law has been blurred, in part because of the critique of legal realists, observing that private law reflects public policy choices, and the tendency of public law to grant new individual rights. Joel P. Trachtman has observed that "Private law is an oxymoron."[16] In fact, he points out, conflict of laws – the traditional category of private international law -- relates to public law.[17] "All conflict of laws rules allocate power to government."[18] And, public interests in a market economy include private interests.[19]

"The end goal of conflict of laws-as of law more generally-is the maximization of the welfare of the constituents of the relevant society. If international conflict of laws rules are analogous to constitutional law --describing the allocation of power horizontally within a unitary order-the relevant society whose welfare these rules must maximize is international society. Of course there is nothing quite comparable to a world Constitution, and world society is far more decentralized than, for example, the federal society of the United States. "[20]

"The private-public distinction is inappropriate in the context of conflict of laws, assuming it is a valid in any context. From a law and economics perspective, the private sphere is that sphere normally left to market ordering. Thus, the private sphere, in theory, absent transaction cost or market failures, needs no law. However, it is generally agreed by even the most extreme law and economics theorists that in practice, the private sphere needs law to reduce transaction costs by facilitating the assignment of stable property rights and rules of tort liability and contractual responsibilities."

"Thus, public policy-that use of the state level-would be expected to incorporate certain values from the private level."[21]

B. The role of public law

Public international law circumscribes the legitimate exercise of state power to regulate private conduct and to decide private disputes, through rules of jurisdiction, choice of law and judgment recognition. These rules, making up what American lawyers call conflict of laws,[22] link public and private international law. When private persons or entities seek resort to civil courts to resolve their disputes, they encounter conflict of laws rules, which determine the power of national law makers, adjudicators and enforcement resources.

Although conflict of laws is considered to be but another name for private international law, its rules reflect public-law limitations on the exercise of sovereign power, motivated by the reality that, when one sovereign oversteps its bounds, it encroaches on the prerogatives of another. The rules therefore reflect a comity among sovereigns, seeking to preserve the essential attributes of sovereign power to each.

Trachtman says that the best solution to conflict of laws problems is the negotiation and agreement on conflicts rules by governments through the treaty making process, in other words, using public international law mechanisms to change the content of private international law.[23] Vertical public law litigation involves the assertion by individuals of rights derived from public international law in regular courts. Harold Koh argues that vertical litigation is growing in importance.[24]

Because public law defines the contours of private law, the public law questions with respect to Internet regulation include the role of private ordering. Two kinds of hybrid legal systems can be envisioned. One kind opens national courts to private litigation based on norms derived from public international law. The other kind uses public international law mechanisms to define structures for private ordering, much as American labor law defines structures for private ordering of the workplace.[25]

C. Public law and private institutions

Many private institutions enjoy power in international politics and law that rivals that exerted by traditional states.[26] Francois Rigaux’s “Transnational Civil Society,” involves three types of actors: the state acting through its domestic law, the community of states in the international order, and individuals acting through private initiatives including NGOs.[27] “It is through the non governmental organizations and, more and more often, through the mass media that world public opinion makes its voice heard on the major problems requiring action at the international level.”[28] Professor Koh's "transnationalist" school of international relations theory emphasizes the role of private actors in international law.[29] Professor Anne Marie Slaughter agrees.[30] Private actors create purely private legal relationships by dealing with each other, create mixed relationships by dealing with states, and as political actors, they coordinate their private self-interest across national boundaries, exerting pressure vertically through national interest groups thereby shaping the policy of states. The Internet will strengthen all these phenomena by making the horizontal relationships easier despite distance and regardless of formal national borders.[31]

Just as domestic interest groups are an essential part of the political dynamics of domestic politics, non governmental organizations ("NGOs") are an essential part of international rulemaking and enforcement.[32] Indeed, because the institutional structure for international governmental functions is less complete than that for state governmental functions, NGO’s play a proportionately greater role in the international context than in the domestic context.[33]

NGOs are not a new phenomenon. They were instrumental in the eighteenth and nineteenth centuries in stopping the slave trade, promoting peace through international arbitration, advocating worker solidarity, encouraging free trade, and harmonizing international law for maritime commerce.[34]

McDougal, Lasswell, and Reisman identified seven functions performed by NGOs: intelligence, promotion, prescription, invocation, application, termination, and appraisal.[35] Intelligence is gathering, analyzing and disseminating information.[36] Promotion is advocacy of particular policy options.[37] Prescription is actual participation in rulemaking.[38] Invocation is an accusatory role when norm violations are detected.[39] Application is actual adjudication.[40] Termination extinguishes norms.[41] Appraisal is the evaluation of the performance of formal international institutions and norms.[42]

III. The Internet improves the effectiveness of the international law system

International law affects human beings in two basic ways: it changes the way national-law institutions govern them, and it may grant them rights and impose duties on them directly, which are then enforced by national or international courts and agencies. The Internet’s influence is manifest in the increasing ease with which new international agreements are negotiated, in the impact such agreements have on state behavior, and in enforcement of international law norms directly against states and private persons. There are thus three branches to the argument that the Internet strengthens public international law: the Internet facilitates development of new law; the Internet promotes acceptance of international law by states; the Internet aids in detecting violations and imposing sanctions.

The arguments are interrelated: the same groups that promote the writing of new treaties, also engage in domestic political activities to induce states to conform their behavior to the treaties once they are adopted. And, the same groups are active in investigating violations.

A. The Internet facilitates the development of new public international law

The Internet facilitates development of new public international law in two ways. First, it reduces the transaction costs and speeds up the process of negotiating new treaties. This effect is evident mostly in the preparatory work that precedes formal adoption of treaty language. Second, the Internet empowers groups advocating new treaty law—primarily NGOs, making it easier for them to form bonds across state boundaries and to participate in the preparatory work for treaties even though they lack substantial resources.

1. Enhancing treaty negotiation

The Internet makes it easier to negotiate international agreements. Paul Szasz dissected the treaty making process into four major and some twenty subordinate tasks or “stages.”[43] Many of these can be sped up and made more effective by use of the Internet. In the Initiation stage, virtual libraries and electronic surveys of participating governments enhance assessment of the likelihood of success and development of estimates of schedule and costs. In the second stage, when the text of a multilateral treaty is being drafted, the Internet makes it easier to conduct preliminary studies of the state of law, and to distribute completed studies and analyses. Drafting groups can deliberate through the Internet. When governmental consultations are necessary, drafts can be made available and comments received through the Web or email. In the adoption stage, deliberation software can increase the options for consensus formation and voting. During the ratification (“entry into force”) stage, virtual library functions can ease the burdens of smaller, less developed countries, and can organize reservations made by individual states. Once the treaty enters into force, placing treaty depositories on the Internet improves compliance.[44]

The actual process of treaty negotiation begins with months or years of preparatory work, usually originating in workshops or conferences in which experts in the field—typically professors, public officials from concerned national agencies and lawyers from interested private and non profit organizations -- crystallize the issues and the alternatives which might eventually be expressed in the form of treaty language. As with any negotiation process, this preparatory work depends upon participants’ ability to persuade other participants that their views of reality are accurate and legitimate, to form alliances based on common perceptions and goals and ultimately to persuade opinion leaders in broader communities that their recommendations are worthy of acceptance because they relate to the political agenda of a complex array of public officials and interest groups usually focused on the national political process.

In this work leading up to the actual session in which the text of a treaty might be adopted, email plays an important role in allowing preparatory conferences to be organized. For example, this author recently participated in a workshop on Internet Jurisdiction organized by The Hague Conference on Private International Law. All of the invitations, negotiations over format, arrangements, and distribution of background materials occurred via email on the Internet. There was only one telephone conversation and no letters or faxes.

Once a preparatory conference is organized, Web pages supplement exchange of documents by email in making it more convenient and much quicker for participants to exchange draft language and to make available to each other relevant preexisting documents that they may wish to cite as precedent or from which to extract model language. After the face to face meetings are adjourned, at which participants develop personal bonds that can support trust and make further conversation more reliable, email, specialized Web sites—often closed to the public—facilitate completion of follow on work agreed to at the face to face conference. [45]

Eventually, the treaty-making process moves to another phase, in which advocates of a treaty must persuade their governments to support recommendations emerging from the preparatory conferences and to place actual treaty negotiation sufficiently high on their political agendas. At this point, the Web’s publishing function becomes more important. Interest groups favoring preparatory recommendations use the Web to inform the public and mobilize their constituencies for action. The landmine Web sites are examples of this process at work, as are various Web sites supporting U.S. participation in the drafting of a statute for an international criminal court, preceding The Rome Conference of 1998.[46] While simply putting up a Web site does not mean that many people will read it, the way that various Internet search engines work enhance the likelihood that even the most obscure organizations can find an audience for their Web sites.[47] Then, an ordinary member of the public or anyone else interested in the subject of landmines or international crimes is likely to find a Web site advocating a new treaty on those subjects.

Moreover, the political processes leading up to actual final agreement on treaty text rarely are as completely democratic as the foregoing discussion suggests. A variety of “regimes” exist in the international legal system that provide continuing frameworks for preparatory work in treaty negotiation. The Hague Conference on Private International Law, the ITU, WTO, WIPO, and other UN organizations have permanent secretariats that maintain evolving agendas referring to possibilities for negotiation of new treaties. Now, all of these organizations have Web sites that make it easy for anyone interested in their general subject matter to access the work plans and determine the status of preparatory work on treaties. As the preparatory work proceeds, these Web sites provide forums for mobilizing political support (and opposition).

All of these possibilities facilitate rule making in international institutions, where distances otherwise would be a barrier. They also increase the role of NGOs because they represent channels for NGO participation additional to traditional state-controlled channels.

Facilitating the treaty negotiation process can reduce some of the disadvantages of reliance on customary international law.[48] One of the difficulties with customary international law always has been the difficulty in determining its content. Professor Jack Goldsmith that the Internet will make the incoherence of Customary International Law worse, making it even more perilous to incorporate it into U. S. federal common law.[49] Nothwithstanding Professor Goldsmith’s argument the Internet may actually improve the coherence of customary international law.[50] Even if it does not, the Internet’s facilitation of treaty negotiation will make customary international law less important.

It is important, however, not to exaggerate the claims that the Internet facilitates development of new treaty law. Whether or not states agree to treaties depends on their underlying interests. As Part ___ explains, the Internet may alter those interests, but the resulting interest balance may oppose, rather than favoring, international agreement. It does, however, open up new channels of political interaction, domestically, and across national boundaries. These new channels make it easier for international political movements to be organized, and for those movements to affect the position of states. This phenomenon is discussed in the next section.

2. Empowering advocates

The Internet’s lower economic barriers to entry give voice to political actors who otherwise would be denied effective access to the public arena. Because the Internet gives them access, and is inherently global, they can find likeminded people in other states, thus enabling them to build political movements across national lines.

Once they have built movements, the Internet makes it easier for them to mobilize public opinion, thus altering the position of state actors. The movement for a treaty against landmines is a good example.[51] Web pages permitted the horrors of landmines to be dramatized to the general public and to political activists likely to be sympathetic to the need for a new treaty. The Internet permitted these activists, once aroused, to coordinate their arguments across national lines, and to use political action and sympathetic governmental positions in one country to promote sympathetic positions in other countries.

Because the regular press and media increasingly consult the Web for sources of news, growing use of the Web by political action groups also gives them more effective voice in traditional media. The Internet permits campaigns to be organized, funds to be raised, petitions to be signed, and public officials to be contacted, all more easily than could be done without the Internet.

Of course the same channels can be used by opponents of any new treaty,[52] so the availability of the Internet does not necessarily mean that treaties are more likely to be adopted; and simply opens up new avenues for political dialogue—avenues that are indifferent to national boundaries. It has the effect of broadening the scope of political debate and making it more international in character.

NGOs, organized and expressing themselves through the Internet, have had great influence on the treaty negotiation process for many years.[53] NGOs such as Amnesty International and the Lawyers’ Committee on Civil Rights perform important intelligence and invocation functions. NGO activity has been especially influential in the environmental arena. At the Stockholm Conference in the early 1970s, NGOs outnumbered accredited governmental representatives, and by 1987 were allowed to address plenary sessions drafting environmental treaties.[54] Their role thus moved from promotion to prescription. Greenpeace typifies aggressive performance of the invocation function.[55] Most people think that the Rome treaty for the International Criminal Court would not have been concluded when it was without NGOs leading the charge. Human rights NGOs mobilized world opinion in favor of international intervention in Bosnia and Kosovo.

The Internet improves the operation and therefore the strength of NGOs. Internet use improves performance of three of the functions McDougal, Lasswell, and Reisman identify as performed by NGOs -- intelligence, promotion, and prescription[56] -- thereby facilitating the organization and operation of NGOs, and enhancing their influence.

Use of the Internet reduces the transaction costs for organizing, maintaining, and carrying out the functions of an NGO. Group organization and maintenance cost advantages from Internet use are greater when group members are more dispersed. Thus information technology makes it possible to contact potential NGO constituents dispersed around the world, while the cost of communicating with them and enlisting their support would likely be greater than the resources available without Internet technology. This function of the Internet instantly replaces or supplements direct mail campaigns and newsletters. As credit card commerce on the Internet becomes more common, more people will be equipped to contribute to NGOs directly through the Internet, thus expanding fund raising possibilities.

More than this kind of membership maintenance is possible. NGO activities can be directed and coordinated through e-mail and the Web. A communication associated with direction and coordination can either be public or private, depending on how e-mail and web systems are setup. An NGO can set up a Web page for each major project and allow project participants to post messages to discussion groups placed within that Web page. As soon as a project participant has something to report or a project leader has a new direction to give, that information instantly is available to other key members simply by copying a file from one directory to another on an Internet-connected computer.

B. The Internet promotes acceptance of public international law by states

The Internet promotes national adoption of new public international law by empowering national interest groups who advocate ratification of new treaties.[57] This is one aspect of the interpenetration process. (The other aspect involves the adoption of international norms as domestic legislation is framed and international and domestic cases are decided by courts. The Internet also facilitates these post ratification aspects of interpenetration.)

In other words the Internet makes traditional sovereign states more permeable, weakening many of their traditional powers, at the same time that it empowers NGOs in all three of their functions.

As the Internet further blurs the lines between domestic interest groups and international NGOs, it strengthens the ability of individuals and small-group interests – weak in domestic politics -- to be expressed and given fulfillment through international institutions -- NGOs. Then, then Internet makes it easier for NGOs to influence domestic politics. It is no accident that China’s growing restrictions on political freedom in Hong Kong have limited the role of international organizations in politics. International organizations, especially in the human rights area, already play an active role in creating embarrassment for existing domestic political institutions.

The Internet and the World Wide Web fundamentally change the possibilities for mobilizing these interest groups and focusing their power on political choices taken by individual states. NGO performance of promotion functions[58] was enhanced as they developed “sophisticated information networks linking dissidents, sympathetic governments, and the media.”[59]

No longer is the choice of intervention in East Timor, Kosovo or Bosnia solely the province of political elites and professionals in diplomacy; now, due to information technology, it is a mass political question. Because the Internet increases access to the channels of communication to these world wide audiences, it fundamentally alters the balance of power between different political actors.

In his illuminating synthesis of competing and overlapping strands of international law, Harold Koh explores the process of “norm internalization.”[60] He explains that transnational actors such as public officials, “norm entrepreneurs,” and NGOs mobilize domestic elites and popular constituencies and set in motion a domestic political process that internationalizes a norm of international law.[61] The process can be viewed at three overlapping and potentially reinforcing levels: the level of the international system-s itself; the level of individuals and groups who make up the state; and the processes and institutions of domestic politics.[62]

International institutions make a difference in compliance because they clarify norms, provide a mechanism for detecting noncompliance and commit the parties to interact repeatedly over a sustained period of time.[63] Gradually the international norms interpenetrate the domestic legal system of the participants, ripening into “symbolic structures, standard operating procedures, and other internal mechanisms to maintain habitual compliance with the internalized norms.”[64] Democratization strengthens the effect of international law because international law as rhetoric influences masses more than it influences leadership cadres, who are more likely to set policy based on interests in the realist tradition.

Interpenetration refers to the mutual influence between national and international legal systems. State-based law influences international law by providing models for judges applying international law. Already, state-based systems are reference points for international law under the doctrine of customary international law, which depends, in part on the universal practice in national legal systems. Working in the other direction, international law also influences state-based law. That process is hardly new. Early in the nineteenth century, concepts of private international law often were the reference points for federal courts deciding American cases of first impression relating to personal jurisdiction and choice of law.

Interpenetration involves a shift from dualism to monism as a characterization of international law as it actually operated. The monism/dualism dichotomy is giving way in the international law literature to a more nuanced approach which recognizes both theoretical and practical problems confronting a judge who would directly apply international law.[65] Increasingly, domestic courts in the United States are pressed to consider international legal norms along with purely domestic norms in deciding cases.[66] Although some American courts have declared international law to be part of domestic U.S. law,[67] the more usual approach is to presume that Congress intends for U.S. statutory law to be interpreted as consistent with international law.[68] Well recognized principles determine whether treaties to which the United States is a party have “direct effect” (i.e. can be applied directly as sources of law in domestic cases), reflecting some reticence in wholesale incorporation of international legal norms into the domestic legal order.[69] Some foreign states, however, directly and explicitly incorporate some or all of international law into their domestic legal systems.[70] The Chief Justice of the Wisconsin supreme court has urged state court judges to pay more attention to foreign law in deciding purely domestic U. S. cases.[71]

“we can cross the divide separating us from other jurisdictions around the world. And if we do so with the modest intent to borrow ideas on classifying, discussing, and solving a particular problem, we should not be deterred by unfamiliarity with foreign legal systems. We may fail to understand a particular system of law or even misinterpret some foreign decisions. Nevertheless, we may also find unexpected answers or new challenges to domestic legal issues.”[72]

One barrier to the application of international law in domestic court systems is the difficulties of gaining knowledge of international law.[73] By some estimates, there are more than 15,000 treaties to which the U.S. is a party.[74] There are surely thousands of scholarly opinions about the content of customary international law. These are scattered all over the world. The comprehensive scope of legal publishers in the U.S. with respect to domestic U.S. legal materials is not typical of other countries nor of international materials. Even an institution such as The Library of International Relations (“LIR”) at Chicago-Kent College of Law whose mission it is to organize international materials must devote considerable efforts to locate them, get copies, and index them for feasible access.

The Internet facilitates interpenetration in both directions by making international law and state-based law more available to judges and legislators all around the world. Rigaux’s “Transnational Civil Society”[75] is strengthened by the Internet. Because of improved accessibility to international norms, domestic judges and legislators are more likely to be influenced by them, thus increasing interpenetration. Improved communication and information exchange through the Internet strengthens the role of NGOs in domestic political processes as well, further increasing interpenetration.

Legal decision makers cannot use another body of law as a reference if they do not know its content. The Internet makes it easier for them to discover its content. No longer must litigants and judges rely upon cumbersome and expensive mechanisms of having expert witnesses present their opinions about the content of a foreign legal system; now, the litigants and judges simply may look up the law for themselves.

The United States was an early leader in making its law visible to people outside the United States. The Federal Web Locator,[76] provides a portal for accessing nearly a thousand federal Agency-sponsored web sites, and the Thomas system established by the Library of Congress in 1994 offers access to all major Congressional materials,[77] and many state legislatures make bills and enacted law available.[78] A combination of direct action by federal appellate courts and a cooperative effort by several American law schools make the full text of all federal appellate opinions available on the Web, and a rapidly growing fraction of state court systems are doing likewise.[79] The U.S. Department of State has begun to publish on the Web treaties to which the U.S. is a party, beginning with trade agreements.[80]

Now, many other nations are following suit. The decisions of the British House of Lords are the web. International human rights treaties are available through the Council of Europe.[81] The United Nations is doing a good job of making scanned images of pages of all treaties in the United Nations series available on the Web.[82] The The Council of Europe’s Venice Commission[83] is moving its collection of constitutional courts decisions to the Web. Aided by efforts of this author and many of his students, decisions in Croatia, Macedonia, Bosnia, Albania, and -- soon -- Kosovo are available as well. China is improving legal transparency in order to hasten economic development by making court decisions and legislative materials available on the Web.[84]

While mere availability of legal materials does not ensure interpenetration, it makes it easier to achieve. As noted above, there is a growing voice with the American judicial community for referencing materials outside the United States. The kind of large scale Web publishing of international documents described in the preceding paragraphs results in the extension of the virtual law library already present on the Internet World Wide Web. Such an expanded library provides a rich source of models for interest groups and parliamentarians writing new law. No longer must the author of a new commercial law for Bosnia-Herzegovina take a stab in the dark; the author can begin with recently enacted commercial laws in Croatia and emerging models from the European Commission, both available on the Internet.[85] No longer must the drafter of a new media law for Kosovo guess at what will be acceptable to the Council of Europe, she can look at the media law adopted by Croatia under CoE pressure.

The availability of legislative models increases the likelihood of harmony among legislative enactments in different sovereign states, reinforcing economic pressures for such harmonization in order to reduce trade barriers.[86] But not only does the virtual library make harmonization of positive law more likely; it also makes harmonization of decisional law more likely. The constitutional courts connected through the Venice Commission must decide issues arising under the European Convention on Human Rights--a single source of positive human rights law, incorporated by reference into the constitutions of most of the states of Central and Eastern Europe.[87] Because the constitutional courts in the these countries are applying the same document, and because the kinds of conduct likely to give rise to human rights claims does not vary substantially from state to state, it is logical that courts from different states would decide similarly the same issues under the same law. The Venice Commission Project makes it easier for them to do this by giving them easy access to constitutional court decisions of all of the states confronted with the same questions.[88] Even though stare decisis does not operate in a strong form in countries without sources of similar law traditions, as a matter of practical politics, a judge will be pressed to explain deviations from precedent established elsewhere.[89]

Professor Goldsmith doubts the tendency for national and international institutions to harmonize substantive law and questions whether judges dealing with issues already decided by other judges relate their own decisions to the ones that have gone before.[90] It would be interesting to test his view – and mine – by systematic analysis of constitutional court decisions, counting references to decisions in other countries. The point is not that more information about pertinent judicial decisions in other jurisdictions inexorably leads to agreement across jurisdictional lines, but rather that the easier availability of judicial decisions globally will force judges to articulate the connections between their decisions, even if deviant, and other decisions. The result is more reasoned decisionmaking, and a tendency for greater harmony at the margins. There surely will be disagreement, but at least it will not be accidental.

C. The Internet aids in detecting violations and mobilizing sanctions

The Internet encourages compliance with public international law by making it easier to detect violations and deviations, and to mobilize sanctions. More and more institutions concerned with implementation of treaties are using the Internet to publicize national decisions taken under treaties.[91] Moreover, Internet use by NGOs enhances their performance of the invocation and application functions, [92] building on “sophisticated information networks linking dissidents, sympathetic governments, and the media.”[93] Other sections of this article explain the growing influence of NGOs in negotiating and promoting adoption of international treaties.[94] When violations of international norms are detected by NGOs, they can focus attention, through Web pages and e-mail, on the violators through blacklists and organize secondary pressure against those maintaining relations with the violators. An example of this process at work is the Organization of Economic Boycott of Myanmar for Human Rights Violations.[95] The pressure for Pepsco and others to withdraw from Myanmar was organized almost entirely by NGOs and private persons rather than by governments. They used the Internet intensively to organize the boycott.

Beyond communicating blacklists of rule violators, thereby facilitating informal enforcement, NGO rule enforcers can use specialized Web pages to post results of their investigations to solicit expressions of support and contribution for formal and informal enforcement actions. They can use the Web and e-mail to organize mass write-in campaigns to prod political actors and to commence formal enforcement proceedings.

The Internet empowers nationalities (ethnic interest groups) to accuse regimes of violating international norms in their treatment of national minorities. The Armenian diaspora is generally perceived as largely determining U. S. policy toward Armenia, and the Croatian diaspora is credited with shaping German policy toward Slovenia and Croatia after they seceded from Yugoslavia.[96] Public reaction to the siege of Sarajevo, to ethnic cleansing in Bosnia to Serbian suppression of municipal election results, and to ethnic cleansing in Kosovo are clear examples. As Serb atrocities against the Albanian minority in Kosovo escalated during the Spring and summer of 1999, the first color photographs of murder victims usually were found on Web sites maintained by the Albanian Diaspora; not on CNN.

An important part of the new international public law system involves peacekeeping by international institutions, ripening into international protectorates as in the case of Kosovo. The Internet facilitates construction and operation of the machinery necessary for these interventions. In the case of Kosovo, international legal documents, press releases and reports pertaining to the establishment and operation of the KFOR military, and the UNMIK civilian authorities are available on the Internet, making it easier for multinational administration to function.[97]

Finally, in certain areas, the growing importance of the Internet as a political and legal forum and as a marketplace creates leverage for use against violators of international norms. One reason the debate over reform of Internet domain name administration is so interesting is that it has the seeds of a new private mechanism for enforcing private rules in an international arena. One cannot participate effectively on the Internet unless one has a domain name. The IAHC recommendation envisioned a Web of contractual relationships among domain name registers pursuant to which all registers will obligate themselves to revoke the domain name of the Internet user violating the rules and decisions of institution created under the IAHC recommendations.

D. Technology is not enough

Technology, on its own, never effects revolution. It is people, using technology for certain purposes, who alter international law. They must be able to use the Internet to publish law and law reform proposals; they must be able to find the law; and they must be able to engage in political dialogue on the Internet.

The Internet is a vast virtual library, but its virtual shelves will be empty unless individuals and institutions possessing relevant information place it on computers connected to the Internet. Moreover, other individuals and institutions must provide a value-added layer of bibliographic information pointing to primary documentation; the virtual library must have a classification system and a card catalog. For example, the full text of treaties must be placed on the Internet, and someone also must organize list of treaty titles with pointers to the text of the treaties, which may be located on a multiplicity of servers. Many of those providing the bibliographic information may choose to standardize typologies or theasuri for indexing documents, but they need not do so. One of the Internet’s major advantages is the diversity of approaches to information retrieval. Others, and they need not be the designers or implementers of the classification systems, must translate foreign-language documents.

The Internet facilitates both the publication of primary information and the organization of bibliographic aids. An Internet server can be established for a little as $2,000. All it takes to publish a document on the server is to save it in a particular format – Hypertext Markup Language (“html”) -- from either of the two most popular word processing programs and then to “publish it” to a particular directory on the server --- a single step in either of the two most popular Internet Web browser Programs.[98] For an institution such as a court that regularly generates textual judgments or opinions, the process of web publishing can be automated with a few simple scripts that take word processing files for opinions or judgments as soon as they are released and automatically formats them and publishes them to an appropriate directory on the Web server, automatically generating indexes and tables of contents as new opinions or judgments are added.

The preparation of bibliographic aids also is simple. All one needs is a concept for organizing the information. For simple content, one simply publishes treaty titles or subjects on a Web page and links the entries on the word processing documents to the URLs for the full documents. Typically, the linking can be done with one mouse click in popular word processing programs and Internet Web browsers. The Web server containing the bibliographic information may be anywhere in the world and need have no pre-established relationship with the Web server containing the primary documents.

Free text search engines are available at low cost. These software modules automatically index every word in a collection of Web files and permit users to perform search against the full text of all the documents, without any human intervention to code the subject matter of new documents.

The actions necessary for conferencing on the Internet are somewhat more sophisticated. Someone needs to set up a e-mail list for a discussion group on a web page. For an experienced Webmaster or unique administrator, this is a five to ten minute task. Once the list or discussion space is in place, anyone in the world can participate in a discussion.

Acceptance of this new reality is growing. In the Fall of 1996, the author encountered many skeptics in Bosnia, when he and his students proposed creating Internet-based libraries of legal materials to hasten development of a Rule of Law. In the Fall of 1999, no such skepticism was evidence in Kosovo or Ukraine, where university and government officials were eager to get Internet connectivity established so access would be enhanced to Internet databases of legislative and judicial materials they already were building.

But the cheap printing press, virtual library and political forum features of the Internet’s World Wide Web cannot become realities unless the Internet is open. The qualities of openness in this sense means that every layer of the “stack”[99] of communications and content layers must be free from artificial restrictions. The Internet’s universal, nonproprietary technical standards -- IP, TCP, SMTP, NNTP, and HTTP -- make it easier for the different pieces of an information infrastructure to fit together. Once connected to the Internet, anyone can send an email message, post to a news group, or mount a Web page, safe in the assurance that anyone else connected to the Internet will be able to read them. An open Internet also means that those wishing to connect to the Internet, whether primarily to receive information or to establish Web servers and to publish information, must not be subjected to licensing and market entry restrictions developed for older technologies such as radio and television broadcasting and telephone and telegraph services.

The distributed, layered architecture of the Internet must be available to suppliers and consumers of information. That means two things.

First, it means that centralization of content or communications functions by operation of law as through exclusive franchises, is unnecessary and harmful. The economies of scale for virtual libraries and electronic publishing are low. Therefore there are no natural monopolies or efficiencies likely to result from state granted monopolies. Establishing such monopolies deprives public and private sectors of the efficiencies naturally available from the Internet.[100] It also means that competition laws should ensure that those with monopoly power, however obtained, do not extend it into adjacent layers of the stack of communications and content. Just as incumbent telephone companies in the United States and elsewhere must be forced to unbundle their services and offer connections at any feasible point,[101] so also must suppliers at content levels be prevented from limiting competition in adjacent markets. This is what the anti-trust proceeding against Microsoft is all about.

An open infrastructure such as is described in this section ensures a diversity of sources and channels for public information and also ensures marginal cost pricing and rapid introduction of new technologies.

The open systems interconnection (“OSI”) stack is familiar to computer scientists. Published by the International Standards Organization, OSI is an abstract concept of how different elements of computing systems, including networks of all kinds, fit together based on seven layers of function, ranging from electrical signals and hardware plug specifications at the bottom or level one up to the relationship between applications and operating systems at level seven. The seven layers of the OSI stack [102] embody the idea that subsystems making up a computer network can be disaggregated from each other. Each layer is defined in terms of the services it requires from the layers below it, its internal operations (protocols), and the services it provides the layers above it. If clear specifications exist for the functions to be performed by each subsystem or “layer” in the OSI stack, and if protocols exist defining the interface between layers, computer programmers and hardware manufacturers can focus their energies on one or more subsystems or layers without having to provide all of the layers. This gives the benefits of specialization to participants in the market for computer networks.

The OSI stack has conceptual power beyond what is needed by network engineers. The same basic ideas can be extended beyond the computer programs and electrical connections making up the OSI stack itself. One can imagine the same kind of stack of layers in content and information access features.[103] The World Wide Web has raised consciousness about that kind of layering of information value.

The stack model expresses the idea instantiated by the Internet’s World Wide Web, that the elements of an information infrastructure can be unbundled. Implementation of the OSI stack and the protocol stack ideas free up positive network externalities inherent in lower levels. Otherwise, those levels are locked into competing proprietary islands. The result of general adoption the OSI conceptual model was a tipping, -- and then a stampede to -- IP, TCP and then http after the network externalities became apparent.

But competitive access to the conduit is not enough. The Internet will do little if there is no relevant content on it. The same principles of competitive access and opposition to monopoly that are appropriate for the telecommunications infrastructure also are appropriate for the information infrastructure. While copyright and other forms of intellectual property have an important role to play in private creation of information; they are irrelevant for public information, which is created as a public duty imposed on lawmakers and judges.

Almost anyone can frustrate transparency – governments, NGOs, universities. Realization of the Internet’s potential to affect development, acceptance, and enforcement of new public international law depends upon transparency. Preparatory work, actual drafting of treaty language, the political process of treaty ratification, and exposure of deviations and violations all depends upon the relevant information being freely available on the Web. When participants in any of these processes refuse to make information held by them freely available, seeking to extract revenue from those wishing access to the documents or seeking to prevent others from re-disseminating documents, the Internet’s potential is thwarted. In many instances, the incentives to build support for one’s position will overcome such rent-seeking behavior. In other instances, however, self interested economic behavior by public institutions must be overcome by freedom of information legal principles which should not be trumped by exaggerated copyright interpretations protecting basic political documents.[104]

Unfortunately, not all governments make their information resources available for electronic access. The reluctance of some governments stems from the communist era in which public access to information about government activities either was unnecessary or was actively opposed. In other cases, the motivation is not to discourage public participation in government, but to make money. Many government institutions recognize the economic value of government information in electronic form and also recognize that monopolists can extract more revenue by maintaining their monopolies and discouraging competition. Accordingly, they set up government-run or government-sponsored monopolies to sell access to their information resources blocking access by others.[105]

State sponsored monopolies over government information are undesirable for a number of reasons. Monopolies make it easier for censorship to occur. Monopolies usually perpetuate older information technologies because monopolists have no economic incentive to introduce new technologies, thus depriving consumers of the benefits of new technology. Monopolies rarely serve the needs of particular consuming communities as well as a competitive market structure can serve them because no monopolist can understand and cater to the needs of specialized communities as well as a designer and producer who specializes more narrowly.

Accordingly, information policy should commit to and encourage a diversity of sources and channels for government information.[106] This policy is best implemented by a legal framework that grants anyone a right of access to basic government information and also gives everyone a privilege to publish that information in electronic form or otherwise.[107] In some countries, such rights and privileges are deeply imbedded in current law.

In the United States, this entitlement is codified in the Freedom of Information Act,[108] and in similar state statutes in almost every state. In Sweden, the entitlement is guaranteed by the Constitution.[109]

The European Commission presently is engaged in drafting a Green Paper on access to public information, under a mandate of the Maastricht Treaty requiring that the functions of European governmental institutions become more transparent.

The basic underpinnings of an international freedom of information act are visible in the guarantees of freedom of expression and freedom of access in the International Covenant of Civil and Political Rights.[110] They should be extended by decisional law and by national implementation of the core principles of the American Freedom of Information Act.[111]

Freedom of information and competitive access to the Internet are important new international human rights, and they should be added to the inventory of values promoted by United States foreign policy and by human rights organizations.

IV.The Internet changes the balance of interest that determine the outcomes in international law

A. Tom Friedman’s Lexus phenomenon – the catnip effect

B. ABA Jurisdiction Project – new reasons to harmonize

C. But also enables Friedman’s Olive Tree phenomenon

1. Nationalism – 50,000 Albanian email accounts

2. WTO/Seattle protests organized through the Internet

V. The Internet is giving rise to new bodies of international law

The Internet not only improves the functioning of the public international legal system; it invites the extension of that system. There is growing recognition that traditional forms of regulation are unsuitable for many of the economic and political transactions that occur on the Internet.[112] In some cases, subjecting Internet activities to state-based regulation will raise transaction costs to the point that desirable activities will not occur; in other cases, important public policy interests cannot be enforced effectively over Internet content originating in other states. Erection of new public law frameworks, encouraging and channeling private ordering (self-regulation) can address some of these problems, and pressure grows to develop such frameworks.

A. Battle between public (PuIL) and private (PrIL) ordering

But why does the Internet encourage greater reliance on private ordering as part of the international legal system? Because of the differences between the Internet and older technologies, people have been thinking hard about whether traditional jurisdictional rules are adequate for the Internet or whether some new approaches are necessary. The Internet’s inherently global character makes it difficult to localize conduct and effects, and localization is the traditional lynchpin of private international law doctrines for determining prescriptive and adjudicative jurisdiction. The Internet’s low barriers to entry encourage participation in transnational commerce and political affairs by millions of individuals and small enterprises which, before the Internet, were confined to national markets and forums. Statistics presented by the National Consumers League for 1997 show that Internet fraud complaints involving non-U.S. consumers ranked 8^th, just after Illinois consumers and just ahead of Virginia consumers.[113]

David R. Johnson and David Post say:

“Cyberspace[114] radically undermines the relationship between legally significant (online) phenomena and physical location. The rise of the global computer network is destroying the link between geographical location and: (1) the power of local governments to assert control over online behavior; (2) the effects of online behavior on individuals or things; (3) the legitimacy of a local sovereign's efforts to regulate global phenomena; and (4) the ability of physical location to give notice of which sets of rules apply. The Net thus radically subverts the system of rule‑making based on borders between physical spaces, at least with respect to the claim that Cyberspace should naturally be governed by territorially defined rules.”[115]

In other words the international legal system’s traditional rules for jurisdiction depend on localization of conduct or harm. The Internet challenges all three kinds of jurisdiction: prescriptive jurisdiction, adjudicative jurisdiction and enforcement jurisdiction, because it is difficult to localize legally relevant conduct occurring in the Internet.

Self-regulation can help with all three challenges because it lessens the pressure to localize behavior.

With respect to prescriptive jurisdiction, if a private group agrees on a code of good practice, that is a kind of legislative act. It is a form of prescription and it is inherently transnational, at least to the extent that the membership of the group is transnational.

With respect to adjudicative jurisdiction, private dispute resolution such as arbitration can be inherently transnational. International commercial arbitration under the New York Convention[116] is a prominent example. Moreover, private dispute resolution is not limited to arbitration or mediation. There are some new models for private dispute resolution. Credit card chargeback mechanisms, dispute prevention and resolution systems unilaterally adopted by private Internet intermediaries such as EBay,[117] which offers an escrow system, an insurance system, a dispute resolution system in the form of mediation, and a mechanism for a kind of consumer black listing of merchants who don't behave themselves, are beginning to attract attention.

Domestic U.S. systems for patient care disputes with managed care companies also have potential application in the international context. There is a long history in health care delivery in the United States of a hybrid system of dispute resolution that begins within a private entity like an insurance company and eventually ends up in an appeal process in a public entity. Such structures provide the simplicity of a private mechanism at the first level but also have some type of appellate review or control by public institutions.

To be credible private self-regulatory schemes have to produce enforceable decisions. That is a political reality. Enforceability implicates the concept of enforcement jurisdiction. Self-regulation works only to the extent that government permits it to work, as opposed to viewing private enforcement action as defamatory or violative of antitrust laws.

Self-regulatory schemes must be linked to public law and to public authorities. When such linkage exists, there is the possibility for real protection because private groups can legislate and resolve disputes privately and then to the extent that it seems appropriate, rely on the government apparatus for enforcement.

B. Models from other types of international regulation

The Internet’s global characteristic causes it to be a target of international regulation similar in some respects to the targets of law of the sea and the subject matter of outer space regulation. Its low economic barriers of entry, however, distinguish it sharply from outer space regulation and moderately from law of the sea.

The brief review of law of the sea and outer space regulation that follows offers some models for regulation when localization of activity within a state is difficult or impossible. These may be useful starting points for thinking about international Internet regulation. On the other hand, these regulatory regimes focus on state actors rather than private actors, and thus make them unsuitable conceptual models for Internet regulation of many thousands of private actors.

1. Maritime treaties (LOS) as model?

In 1609 Hugo Grotius postulated that no state legitimately could exercise jurisdiction over the open sea.[118] Under customary international law, national jurisdiction was limited to territorial waters. Controversies concerned state jurisdiction over foreign vessels found within their territorial waters and state jurisdiction over natural resources such as fish found within the territorial waters. International law acknowledged state jurisdiction over fishing in territorial waters,[119] and developed principles for defining territorial waters.[120] As interstate ocean commerce increased, international law recognized that the law of the nationality of vessels governed activities on board,[121] "on the pragmatic basis that there must be some law on shipboard, that it cannot change at every change of waters, and no experience shows a better rule than that of the state that owns her."[122] Another pragmatic rule allowed free passage of warships in time of peace through straits used for international navigation between two parts of the high seas even though the passage occurred through territorial waters.[123]

Controversy continued well into the Twentieth Century over the extent of territorial waters -- and hence of state jurisdiction. One of the most illuminating of the alternative rules was the "cannon-shot" rule[124] which defined the extent of territorial waters by the range of a cannon fired from shore, thus clearly defining jurisdiction in terms of the practical extent of state power.[125]

Article 33 of the USCLOS reconciles the competing interests by recognizing a "contiguous zone," extending no further than 24 nautical miles from shore,[126] within which:

"the coastal state may exercise the control necessary to:

(a) prevent infringement of its customs, fiscal, immigration or sanitary lawa dn regulations within its territory or territorial sea;

(b) (b) punish infringement of the above laws and regulations committed within its territory or territorial sea."[127]

Outside territorial, contiguous, and seas "exclusive economic zones," "the high seas are open and free to all states,[128] and in those seas warships and noncommercial ships are entitled to "complete immunity" from interference by any other state.[129] Private commercial ships are subject to boarding by warships and law-enforcement ships when authorized by the flag state or if there is reason to suspect the boarded ship of piracy,[130] slave trading, unauthorized broadcasting, reason to suspect that the boarded ship is without nationality, or reason to suspect that the boarded ship is of the same nationality as the boarding ship.[131]

UNCLOS recognizies the role of international dispute resolution machinery to the law of the sea.[132] Article 286 of the United Nations Convention On The Law Of The Sea (“UNCLOS”) provides:

“Subject to section 3, any dispute[133] concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.”

Article 287 allows disputants to satisfy the requirements of article 286 through the International Tribunal for the Law of the Sea (“ITLOS”), the International Court of Justice an arbitral tribunal constituted in accordance with Annex VII, or a special arbitral tribunal constituted in accordance with Annex VIII[134] for one or more of the categories of disputes specified therein. The means of dispute resolution must be specified at the time of ratification of the Convention.[135] The general dispute resolution procedures contemplate the possibility of participation by non-state parties.[136]

Among other things, the ITLOS and the alternative dispute resolution bodies expressly have the power to order the release of vessels that have been detained.[137] The rules of the tribunal evidence its formal, adjudicatory character.[138]

ITLOS requires that pleadings be submitted in electronic form,[139] and allows service of other papers to be made electronically.[140] ITLOS also publishes its judgments on the Web.[141]

The deep seabed regime of UNCLOS[142] is particularly significant in terms of its implications for Internet regulation. That regime includes an Authority[143] comprising an Assembly,[144] a Council,[145] and a Secretariat,[146] and also includes an Enterprise,[147] an international business organization empowered undertake deep seabed resource development directly. Significantly, the dispute settlement machinery for deep seabed development extends standing to non-state entities,[148] and rulemaking does not require consensus or unanimity by signatories.[149]

Adoption of UNCLOS is regarded as a watershed in the development of public international law because UNCLOS, viewed as evidence of the content of customary international law,[150] thus making it binding -- in a general sense -- even on non-signatories.

2. Space law as model

The law of outer space,[151] includes among other things, regulation of communications satellites, and the closely associated law of international telecommunications. Like the internet, international telecommunications, constitutes an international resource - to be used for all of mankind,[152] and a scarce resource - to be preserved.[153]

The ITU convention is intended to:

"a) effect allocation of the radio frequency spectrum and registration of radio frequency assignments in order to avoid harmful interference between radio stations of different countries;

"b) coordinate efforts to eliminate harmful interference between radio stations of different countries and to improve the use made of the radio frequency spectrum;

"c) coordinate efforts with a view to harmonizing the development of telecommunications facilities, notably those using space techniques, with a view to full advantage being taken of their possibilities;

"d) foster collaboration among its Members with a view to the establishment of rates at levels as low as possible consistent with an efficient service and taking into account the necessity for maintaining independent financial administration of telecommunication on a sound basis;

"e) foster the creation, development and improvement of telecommunication equipment and networks in developing countries by every means at its disposal, especially its participation in the appropriate programmes of the United Nations;

"f) promote the adoption of measures for ensuring the safety of life through the co-operation of telecommunication services;

"g) undertake studies, make regulations, adopt resolutions, formulate recommendations and opinions, and collect and publish information concerning telecommunication matters."[154]

These purposes are similar to the purposes of Internet domain name regulation in that they focus on technical issues, maximization of resource, and non interference.

The Outer Space Registration Convention[155] provides that each signatory must maintain registry of objects launched into space,[156] and obligates launching states to register with UN objects launched into orbit or beyond.[157]

While some of the problems addressed by space law are similar to those presented by international Internet law , there also are important differences. Satellite communication, like the Internet inherently transcends national boundaries. With both systems of law, there is a need to recognized and allow the power of technology to be available, while at the same time respecting the prerogatives of traditional sovereignty.

On the other hand, important differences may make it difficult to adapt Space Law concepts for International Internet regulation. For one thing, as earlier sections of this article have noted, the economic barriers to entry on the Internet are much less than the economic barriers to entry for satellite communications. One need not procure satellite launch services, from a country that has a satellite launch capability, in order to establish a presence on the Internet. That means greater proliferation of sources of Internet content, making any form of international regulation more difficult than for satellite-based activities. Moreover, it is difficult to conceive how more than one or two sovereign states have the physical capability to exert power over satellite-based activities. That is not true with the Internet. While Internet border controls are not well understood, may be difficult to establish, and may serve to isolate the a country by closing down from the electronic commerce and political discourse of the net, Internet border controls are not impossible. Government-based routers can be established as firewalls for Internet communications outside the country. Internet intermediaries may be threatened with strict punishment if they allow forbidden content to enter the country, thus inducing them to figure out their own border control systems. And, criminal penalties focused on an individual citizens can be reinforced by the Internet tracking capabilities. It the citizen knows that his access of forbidden content will leave a certain trail that can be followed by a law enforcement authorities, he is more likely to comply with domestic regulations prohibiting access to content at the individual user level.

None of these things are possible with satellite systems. Accordingly, the practical underpinnings of space law--the virtual impossibility of applying traditional coercive measures to enforce national law--are not characteristic of the Internet. Because of the greater practicability of enforcing traditional law through traditional coercive measures, there is less incentive for nation states worried about the Internet to agree to an international treaty along the lines expressed by the space treaties.

3. Limited usefulness of maritime and space law models

Both the law of the sea and the space law models are intergovernmental in character. They contemplate that most of the work of rulemaking, treaty interpretation, enforcement, and operations will be conducted by traditional international organizations. Relatively little role is contemplated for the private sector in these models, with the exception of state-designated entities in both regimes.

As the next section shows, other approaches are conceivable for the Internet, involving relatively thin intergovernmental (public-law) frameworks within which private ordering can do most of the rulemaking, adjudication, enforcement, and operational work. These hybrid structures offer the advantages of greater flexibility and decentralization available through private ordering, while tying private ordering to public law to enhance legitimacy, political acceptability, and enforcement through state-based coercion when necessary.

C. Matrixes for hybrid regulation

Changes in information technology, including but not limited to the Internet, are causing the development of new public law structures for public and private regulation of commercial and political activities making use of these technologies, and also are causing the redesign and streamlining of traditional public law institutions such as the International Telecommunications Union and the World Intellectual Property Organization.

The Internet is encouraging exploration of new kinds of public international law matrixes for private self ordering because of the difficulties of regulating the Internet through conventional state-oriented means.[158] Redesign of existing institutions enlarge their limited rule making power, and open them up to limited forms of participation by non-governmental entities such as service providers.

The new institutional frameworks are more significant because they represent hybrid forms of international regulation, providing public law frameworks for private ordering. The two most advance examples involve negotiation of a safe harbor for personal data moving from Europe to the United States, and the establishment of an internationally controlled private corporation to regulate Internet domain names and addresses.

The new public international matrixes for private ordering include choice of law rules and rules for adjudicative and prescriptive jurisdiction, treaties such as the New York Convention for enforcing arbitration awards and a proposed state convention on the enforcement of civil judgments. They also include immunities for actors in private ordering systems, such as immunities that would shield members of a self regulating organization from antitrust liability and immunities that would shield accusers and decision makers in private adjudicatory mechanisms from the defamation liability or liability for intentional interference with business relations.