James Alexander Graham *
Resolution of Quito: The Internationalization of Cyberspace
JurPC Web-Dok. 47/2002, Abs. 1 - 24
|October 15th, 2001 the First World Congress for Cyberlaw opened its work under the Chair of Dr. Jose Luis Barzallo, President of the Scientifical Committee and Dr. Erick Iriarte, President of the Organization Committee. Under the auspices of the Alfa-Redi Community - the largest hispanish E-law Community -, the World Organization of Law and Computer Science, and Net-org, more than 50 Lecturer from Latin America, Europe and Asia intervened on various aspects related to Cyberlaw.||JurPC Web-Dok.|
47/2002, Abs. 1
|The Congress granted me the honor of the Opening Conference. I chose as subject a new conceptualization of the today known e-commerce, namely U-commerce. And one of the consequences of my view is the need to internationalize Cyberspace. Before the Congress, some of the members of the Scientifical Committee welcomed my idea to propose a resolution and to initiate a working group in order to follow up the planned initiative.||Abs. 2|
|Before entering into details in regard to the so-called Resolution of Quito, I will first briefly present the concept of U-commerce and the consequential need for giving Cyberspace an international statute.||Abs. 3|
|E-commerce just emerged when m-commerce already challenged it(1). Mobile commerce is the natural continuation of e-commerce, involving Pocket Personal Computers, HandHeld Devices and cell phones. Nonetheless, m-commerce is just the next step toward something more encompassing. Following Ferguson and Pike, both consulters at Accenture, what we see is the dawn of "u-commerce":||Abs. 4|
|Moving into u-commerce is not a replacement of e- or m-commerce, but an extension of it. "And it will be mandatory, not optional"(3). It will involve televisions, video games and automobile consoles, giving thus "t-commerce", "v-commerce" and "a-commerce"(4).||Abs. 6|
|The starting point of u-business will be the introduction of IPv6(5) allowing a 128 bit name addressing, giving thus the possibility to assign to any connected device a permanent IP address. Tomorrow, empty fridges will automatically send orders to food providers, without any human intervention. A car, at the moment of crossing the American-Mexican border will sense mechanical problems and schedule maintenance. However, where the contract has been concluded?; in the United States or in Mexico? U-commerce will explode any territorial localization. Until now, the Internet-user logged into Cyberspace from a fixed point: his computer, located in a physical place. The first breach into this state of art was already the use of notebooks combined with cell phones. Today, the generalization of PPC and pagers are accentuating the delocalization of the entry point of Cyberspace. As it was underlined in the now famous obiter dictum in the Digital Equipment v. Altavista case: "The Internet has no territorial boundaries. To paraphrase Gertrude Stein, as far as the Internet is concerned, not only is there perhaps "no there there", the "there" is everywhere where there is Internet access"(6). In the same way, the peer-to-peer revolution destroyed definitively the myth of the so-pretended possibility of localizing territorially servers. If in the Napster case, the meta server could be localized through its owner, an American firm, such a thing is no longer possible with Gnutella for example, as there is no meta server and consequently no owner of a meta server. A Web site will be no longer hosted on a single server, but each element of a single page, and each page, will be hosted on different servers all around the world.||Abs. 7|
|In the same time, we will also assist at a de-personification. It is not sufficient that a fridge has its own permanent IP address; it must also to be know to whom the fridge belongs. Identification will be one of the main issues. If for person-to-person business, certification can assure an identification function, it is not certain that it can be that reliable in regard to objects. That's why unambiguous permanent identification schemes are required. One of the most important initiatives in this area is doubtless the one of EDIRA - the EDI/EC Registration Authorities Association - providing an unique and permanent electronical identifier, compliant with ISO norms, X509 certificates and some XML syntaxes.||Abs. 8|
|Although, a-localization and de-personification are not turns that are a mutation by nature, but an evolution by degree, it will nevertheless implicate radical changes in legal thinking.||Abs. 9|
|Darwinian selection by genetic programming will put into interrogation any copyright legislation. Is there any copyright infringement if two patented programs are reverse-engineering themselves to give birth to a third new program? Biological informatics where neural networks are interfaced with chips(7) will definitively shake every now known legal concept. Bots already do arise a certain number of questions in regard to traditional mechanism of representation; Artificial Intelligence will explode the legal frame. Acting on their own, they may be ordered like a representative-physical or natural person. However, misconduct of a physical or natural person leads to liability; A.I. cannot be liable as not owing any patrimonial values. If today a designer of a virus may be held liable, so will not be the case, once there is a mutation into an autonomous viral life-system that will spread through the nets. Who will support the costs? A global danger does it not call for a global answer? For a global space being a new international space?||Abs. 10|
II. Internet: A New International Space
|I will not undertake here the whole demonstration why Internet is an international space(8). I would just like to mention one main argument. If delimitation of spaces are undertaken by municipal law, their opposability relies on the sole jus gentium. Two kinds of spaces may be identified. First, we have the "space-thing", where space is treated like a possession above which States have certain rights and assume a number of obligations. So it is for physical territories, where States for example exercise their jurisdiction over residents because they do stay on the State's dominium. The latter is the source of the power. But there are also spaces, which are not physically appropriatable - the "space-area". For instance, the legal space of a country is much more an area than the mere dominium of its territory: a State may pursue a national for having committed a crime abroad. Its jurisdiction is not based on a territorial link, but on an abstract link constituted by nationality. In other words, jurisdiction is not de jure dominii, but de jure imperii.||Abs. 11|
|This distinction is the key for States' jurisdiction in Cyberspace. The source of power cannot be any longer the national territory in its primary sense. The model to follow is the one of the Holy Sea. Canonical law does not apply because an infringement has been committed on the territory of the Vatican, but because the infringement has been committed by or against a person belonging to the Catholic Church. In the same manner, a cybercrime is not committed on a national territory, as the first judges wrongly ruled in the German Somm case(9), but by or against a national one. The crime itself is localized in an international space. It seems to me, however, that passive territorialism can go hand in hand with the international status of the Internet. At least, under the main condition that the virtual act can really be physically and permanently localized on a territory. A contract concluded in the Internet regarding the sell of a house situated in New York can be located in the United States. A contract concluded in the Internet regarding the sell of a digital photography stored on a server situated in New-York, cannot be permanently localized in the United States, as the server can be moved at any moment; the picture can be stored on an other server somewhere around the world; etc(10).||Abs. 12|
|More broadly, the internationalization of Cyberspace also has as consequence that no State can proclaim any sovereignty over it. Like the Ether, Cyberspace does not belong to one; it does belong to no one because it belongs to every one. Only the global community of Internet-users can reign over it. As I have already stressed it out, this does not mean that States may not rule in respect of virtual activities. They may continue with their legislative work, but based on the imperium and not based on their dominium, at least not on the principle of active territorialism.||Abs. 13|
|According the status of an international space is nothing revolutionary. We already have the example of the High Sea, ruled by the 1982 Montego Bay Convention, delimiting the espacium clausum of territorial seas under States' sovereignty and the espacium liberum of the High Sea. Unfortunately, since Grotius' appeal, 400 years had to pass before international Community consented to confirm formally the international character of the High Sea and its principle of freedom. Do we have to wait that long for the Internet as well? I do not hope so. Freedom of Cyberspace does not mean a lawless place open to renegades. On the contrary, freedom generates in a natural way responsibility.||Abs. 14|
|The Internationality of the Internet will ensure a social-regulated space to the net-users - Johnson's Netizenship(11). It will contribute to an equal use for all countries, whatever their origin and their economical-technological development. 200 years after the Far West and some 400 years after the Conquista, humanity has once again the opportunity to populate a new space. It is maybe one of our last opportunities to do so - as Mars and other planets will be out of reach probably for many centuries. Let us do not repeat the mistakes of the past; let us seize the chance of construing something better. Let us have trust in the human being. Sure, there is a real need for regulation; no one does contest it. But are States so un-imaginative that the only model they may envisage is a pale copy of the territorialism principle, totally un-adapted to an un-territorial space? Maybe governments are, but I'm convinced that the Netizens are not.||Abs. 15|
III. The Initiative(12)
|The present initiative aims to resolve most of the actual legal problems that are discussed on national and international level. The Internet being transnational by its nature, regulators do accord that there is a real need for some international regulation. However, their will of protection of sovereignty does not permit today to find a global solution. Although, some treaties have been achieved (e.g. the Cybercrime Treaty of the European Council) or will be achieved (e.g. the Jurisdiction Convention of the Conference of the Hague), no international organization does treat Internet and its issues as a whole. Beneath specific topics like e-signatures or cybercrimes, there are other issues like the digital divide and the respect of fundamental freedoms.||Abs. 16|
|Most of the Internet users do consider themselves as belonging to a global community and do consider that the Internet is mere than just some telecommunication network; in their view they do consider the Internet as a space - Cyberspace.||Abs. 17|
|As I said before, we do already have in practice a regime that functions well: the status of the High Sea with its 1982 Montego Bay Convention and its established Authority. Such a mechanism fits well to Cyberspace: on one hand States' sovereignty is well-kept; on the other hand, Cyberspace will remain free and will be regulated by consensus of the International Community. However, on the contrary to the Montego Bay system, Cyberspace's Authority should also include, beneath State representation, representatives of the Internet Community.||Abs. 18|
|A first step has been made in this direction with the establishment of the ICANN. However, for one part, its goal is limited to DNS problems, and, for other part, there is no real equal representation.||Abs. 19|
|The Internationalization of Cyberspace could be beneficial to all Internet users, may they be States, organizations, merchants or individuals.||Abs. 20|
|The Resolution does not aim to give answers to all questions; it does not correspond to a fixed program; it does not represent a mainstream ideology. The Resolution has only for objective to initiate a debate at the highest level. The supporters of the Resolution are not bound by its content, but do express their contentment to an objective: an equal, non-discriminative share of a global space to the benefits of all.||Abs. 21|
|In the future there might be adoption of other resolutions, which might slightly change in form and content, reflecting thus the echo of the supporting group, without, however, deviate from its initial goal.||Abs. 22|
|Once the largest support possible for the Resolution among the today established organizations and among the Internet Community as a whole insured, the Resolution is to be transmitted to the Secretary General of the United Nations and to national governments.||Abs. 23|
|A non-profit informal group - designated as the "Group for the Internationalization of Cyberspace - GIC" has been established in order to insure the follow up of the present Resolution. Any States, any International Organization, any organization, any physical or natural person, may be member. The GIC(13) started with a provisional Steering Committee(14) that should establish contacts to the United Nations and national governments in order to submit the following Resolution, to incite debates and to assist States or International Organizations representatives in their efforts to achieve the Internationalization of the Cyberspace. Once, the working program initiated, the Provisional Steering Committee should be confirmed by the members of the Group. The Committee has to inform the Group on a regular base and takes into account its remarks. The Committee and the Group, individually and collectively, will hold regular meetings. Meanwhile discussions and works will be done through a listserv, open to all members of the Internet Community.
47/2002, Abs. 24
Fußnoten:(1) Graham & Stefan, Cebit 2000: Entre l'ère matériel et la révolution mobile, CBL-J, 2000, www.cyberbanking-law.de.
(2) Cutting loose, Outlook 2001, # 1, p.2, www.accenture.com.
(5) Version 6 of the Internet Protocol.
(6) Digital Equipment Corp. v. AltaVista Technology Inc., 1997 WL 136.437 (D. Mass. 1997).
(7) Vedantam, Brain Cells, Silicon Chips Are Linked Electronically, Washington Post, 28/8/01, http://www.washingtonpost.com/wp-dyn/articles/A5195-2001Aug27.html.
(8) Cyberspace is a new international space (from a sociological and legal point of view) - Thesis J.A. Graham (in French): www.net-org.de/quito/cyberspace_thesis.pdf; Der virtuelle Raum - sein völkerrechtlicher Status, JurPC, 1999, www.jurpc.de/aufsatz/19990035.htm; Smallxchange Journal, 2000, www.net-org.de/html/smallxchange.html.
(9) Graham, El caso Somm, REDI, #3, www.alfa-redi.org
(10) Graham, Technology and Law: Comparative Legal Aspects of E-commerce, 2nd ed., 2001, # 7.1.1 sq., www.net-org.de/intro2.zip.
(11) The Price of Netizenship, www.cli.org/pon.html.
(13) Among others: Katitza Rodriguez Pereda, Member of the Association of the Professionals in Computer Sciences for Social Responsibility (Spain); Ivonne Valeria Muñoz Torres, Universidad TEC, (Mexico); Gabriela Guerriero, Member of the Computer Law Institute of the Bar of La Plata (Argentina); Fanny Aguirre Garayar, Member of the Cybertribunal of Peru (Peru); Roland Adjovi, University of Paris II (France) full list available at http://www.net-org.de/html/quito.html.
(14) Chair: Prof. Dr. jur. James A. Graham (Mexico) Co-Chair : E. Iriarte, Chairman of the World Congress for Cyberlaw I (Peru); Members: Prof. Dr.jur. E. Suñe, Law School, University Complutense (Spain); F. Maresca, Chairman, AADeSI (Argentina); José Ovidio Salgueiro A., Lecturer, Universidad Católica Andrés Bello (Venezuela).
Anm. der Redaktion:
Der Text der Resolution of Quito ist in JurPC Web-Dok. 48/2002 veröffentlicht.
|* Dr. jur. James Alexander Graham ist Professor an der Freien Rechtsfakultät der Universität Monterrey, Mexiko. http://www.jgraham.de|
|[online seit: 11.03.2002]|
|Zitiervorschlag: Autor, Titel, JurPC Web-Dok., Abs.|