The European Journal of International Law Vol. 19 no. 4 © EJIL 2008; all rights reserved
Carving up the Internet: Jurisdiction, Legal Orders, and the Private/Public International Law Interface
* Maître d’enseignement et de recherche (Senior Lecturer), University of Geneva. This article was written during a post-doctoral research stay at the Lauterpacht Research Centre for International Law, Cambridge University, 2005–2006. The Swiss National Science Foundation and the Holcim Foundation for the Advancement of Academic Work provided support for this research
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Abstract |
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The Internet is caught between old forces of local territorialism and new forces characteristic of global economies. As a result, this article maintains that it may end up being carved or fragmented into discrete legal spheres. This development contradicts with the hitherto traditional vision of the Internet as a paradigmatic example of a borderless world of global transnationalism. This fragmentation is taking two forms: one vertical which reflects concerns of public policy and the protection of local values, the other horizontal which is driven by the rationale of commercial efficiency. The former (vertical), if not understood and handled properly, may lead to an informational impoverishment of the Internet. One response to this risk resides in new configurations of the appropriate jurisdictional bases for assertions of state power. I argue in favour of a double standard of jurisdiction for the regulation of Internet content: one, based on the principle of targeting, used to sanction behaviour, the other, an incarnation of the effects doctrine, used to prevent actions and fulfil the cathartic function of law. The latter (horizontal) form of fragmentation should lead us to rethink certain aspects of the concept of law, in particular with regard to legal pluralism, and to discover new places where law is to be found.