From Human Rights Aspirations to Enforceable Obligations by Non-State Actors in the Digital Age: The Case of Internet Governance and ICANN

Yale Journal of Law & Technology, 21 (2019) pp. 278 - 336.

UNSW Law Research Paper No. 19-8

60 Pages Posted: 13 Feb 2019 Last revised: 9 Jan 2020

See all articles by Monika Zalnieriute

Monika Zalnieriute

University of New South Wales (UNSW) - UNSW Law & Justice

Date Written: December 7, 2019

Abstract

As the global policy-making capacity and influence of non-state actors in the digital age is rapidly increasing, the protection of fundamental human rights by private actors becomes one of the most pressing issues in Global Governance. This article combines business and human rights and digital constitutionalism discourses and uses the changing institutional context of Internet Governance and Internet Corporation for Assigned Names and Numbers (‘ICANN’) as an example to argue that economic incentives act against the voluntary protection of human rights by informal actors and regulatory structures in the digital era. It further contends that the global policy-making role and increasing regulatory power of informal actors such as ICANN necessitates reframing of their legal duties by subjecting them to directly binding human rights obligations in international law. The article argues that such reframing is particularly important in the information age for three reasons. Firstly, it is needed to rectify an imbalance between hard legal commercial obligations and human rights soft law. This imbalance is well reflected in ICANNs policies. Secondly, binding obligations would ensure that individuals whose human rights have been affected can access an effective remedy. This is not envisaged under the new ICANN Bylaw on human rights precisely because of the fuzziness around the nature of ICANN’s obligations to respect internationally recognized human rights in its policies. Finally, the article suggests that because private actors such as ICANN are themselves engaging in the balancing exercise around such rights, an explicit recognition of their human rights obligations is crucial for the future development of access to justice in the digital age.

Keywords: international law, human rights, digital rights, digital constitutionalism, Internet Governance and Internet Corporation for Assigned Names and Numbers, ICANN

Suggested Citation

Zalnieriute, Monika, From Human Rights Aspirations to Enforceable Obligations by Non-State Actors in the Digital Age: The Case of Internet Governance and ICANN (December 7, 2019). Yale Journal of Law & Technology, 21 (2019) pp. 278 - 336. , UNSW Law Research Paper No. 19-8, Available at SSRN: https://ssrn.com/abstract=3333532 or http://dx.doi.org/10.2139/ssrn.3333532

Monika Zalnieriute (Contact Author)

University of New South Wales (UNSW) - UNSW Law & Justice ( email )

Sydney, New South Wales 2052
Australia

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