Internet Governance and the Jurisdiction of States: Justification of the Need for an International Regulation of Cyberspace by Joanna Kulesza [III GigaNet Symposium Working Paper]

Abstract: The issue of Internet governance is taking a forever more important place in the debate on the future shape of international society. Regarding the fact that national governments have decided to regulate the international cyberspace with state laws, it seems quite certain that the starting point for all considerations of Internet governance should be the analysis of the existing rules upon which the regulating states base their competences – the rules of international jurisdiction.The paper thoroughly discusses the traditional principles of international jurisdiction, shows their practical applications known so far and contrasts them with new circumstances, specific for the Internet, in which these rules should be used. It analyses the territoriality principle, effects principle, active and passive personality principle, protective principle and the universality principle. It discusses their use in traditional international law, including a brief look at the specific concept of international spaces with their unique jurisdictional regime. It than goes on to examine each of the discussed principles for their applicability to the Internet.The article presents also a brief look at the achievements done by international private law in the domain of international jurisdiction, as an invaluable source of experience from which the evolving cyberlaws should draw. Above all it points to the problems, encountered by private international law, bound with elaborating and applying international jurisdictional rules, that have to be analyzed in the context of cyber-activity, especially e-commerce and cybertorts.The solution to the present jurisdictional puzzle, proposed in the article, comprises of finding an international compromise on the scope of rules best suited for the cyber realm and, if applicable, elaborating their modifications. Such a compromise should become a part of an international agreement. The solution should constitute a new regime of Internet governance, elaborating it however is not possible without clearly setting out the basic rules of jurisdiction, that obviously must be altered to fit the evolving circumstances.

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