International regulation of new technologies is not demanded by lawyers only, since it affects economy, politics, ethics, culture, international relations and other fields of social life. Thus, the suitable way of rules and standards for new technologies seems beneficial to representatives of different professions. From a pure legal point of view, the division to segregated law areas, international and national law fields in particular, is a common sense of the continental legal system in Europe. E.g., in continental law system commercial law field is independent and has not much in common with the international law of organizations or international humanitarian law is absolutely separated and has no links to national banking law of a country. Yet, there are some secondary (or complex) fields of emerging law that combines different features of those traditional and segregated law areas. International law rules over new technologies could be a very valuable proof of this trend, since it links a bunch of traditionally separated areas of law.
II. Existence of international IT Law?
The existence of Information Technology (IT) law is something mostly recognized in national law system of different states, however when making research of international law, the picture is different. Yet, no one should neglect that international and national law areas are simple reflections of each other – international law defines the rules that are implemented to national law. And vice verso, national law trends also affect international organizations to update their position on ongoing problems. Nowadays, the usual way of binding international law norms is in the form of written treaties, whereas there is no international IT law as such. On the other hand, of course, the designations are also different: IT law, information law, ICT (Information Communication Technologies) law, Internet law, etc. Despite of variety of titles, IT law is currently a part of many courses at universities and colleges. Yet, the existence of international IT law is vogue and unstable, but not groundless. Current debates all around the world where the direct participation of IT lawyers is unpreventable, are always curious about the existence of international IT law or international ICT law. Although the notion of national information law or IT law is well recognized in the European states thanks to the support of national law researchers, the discussion about the separated international legislation on IT law is usually avoided. Simply put, we can’t study international IT law as an individual legal area yet, but it is a mere fact that there is a system of international law norms regulating IT law relations.
III. Reasons for setting up efficient international rules
Obstacles about the efficiency of international norms related to information circulation are more than ordinary difficulties. Nowadays, one can’t find any international organization or institutions what has not prepared or worked on a report related to challenges and risks of new technologies in legal area, but all these international studies are fragmental and not systematic. Purposes of international law are primarily about regulating transnational relations, capital flow, human rights protection, sustainable development and peacekeeping. Nevertheless, the current types of information cycle are mostly transnational and occurs regardless natural borders among states. At this time, the regulation of transnational information circulation and the rights and freedoms related to this circulation does not depend on one single state. And due to the fact that international IT law legislation is not well-established, most of transnational crimes of informational nature (e.g. cybercrimes, digital privacy violations, etc.) usually stay undiscovered and unpunished. Therefore, I think international IT law itself needs a deep re-arrangement what would affect the whole body of public and private international law.
IV. Traditional international law approach
Issues of legal regulation of new technologies in the international information sphere can be investigated on the basis of both the theoretical and normative basis of international law. Informational relations in international level should be subject to the basic rules of traditional international law. In other words, traditional principles of international law and ius cogens norms, concepts of international customary law norms are related to the international IT law too.
In general, the fragmentary character of international law, the lack of hierarchy between different legislative and judicial bodies is the same for the international IT law legislation as well. Decentralized international legislation determines the rules for users of new technologies in transnational level. That is, when examining international IT legislation, we should refer not only to written convention norms, but also to customary law, court precedents, general principles of law and other types of sources. The division of international legal norms into mandatory and recommendatory nature can also be applied to international IT law norms. Mandatory norms are the traditional international law principles or the norms on absolute human rights such as the prohibition of torture. The soft law norms are basically the recommendations, resolutions and framework documents of international organizations. In practice, both mandatory and soft international law standards on new technologies set up not similar but very different rules what create complexities for application. Organizations such as the UN, the Council of Europe, and the EU have dozens of documents regarding new technologies what differ from each other. E.g., the UN has the Universal Declaration of Human Rights and the 1966 covenants what entail norms apart from the Council of Europe’s European Convention on Human Rights and the EU’s Charter of Fundamental Rights and Freedoms.
Moreover, those traditional (states and organizations) and new (individuals, transnational companies, etc.) users of international law may have variety of rights and obligations related to new technologies (E.g., the right to information security – for states, the obligation to secure cyberspace – for states and organizations, the right to access to the Internet – for individuals or the right to ensure digital privacy – for transnational companies, etc.). Certain norms of international IT legislation could be determined in various traditional fields. For example, the rights and obligations to obtain information about the environmental situation are examined within the framework of international environmental law. The use of drones and various technological innovations during war is analyzed in the field of international humanitarian law. Law violations in the information sphere can be studies within the international criminal law (e.g., in cases of cybercrime, use of ICT for the purpose of terrorism, etc.).
V. International IT Law as the result of global information society development
Currently, international law on new technologies is very fragmented. One of its huge fragments is the international law on information society and knowledge society. These regulations are basically produced by the World Summits on Information Society, the International Telecommunication Union and the UNESCO. It is impossible to imagine modern analysis of IT law in isolation from research on information and knowledge societies. Because, international IT law in itself is the result of the global information society. The impact of the Internet and other technologies on various rights and freedoms is also related to the information society. Information society is not linked to national law, rather than it is the product of globalization and global economic and cultural relations. The information society is not only about informational freedom of expression, but also about various economic, social, cultural and other human rights and freedoms. E.g. digital space creates new horizons for the right to work, the freedom of business activities, the right to education, the right to culture, the right to assembly, the right to vote, etc. Although the difficulties caused by the information society related to social changes are many, its main task is the protection of human rights. If we examine the effects of information on our society by historical stages, we will see that, in fact, information is one of the primary factors that shape our society. So, society is an information society from its very historical and evolutional beginning. The first development period of this society was the emergence of speech and writing, the second stage was the emergence of books and printing, the third stage was the emergence of electricity and electronic information carriers, etc. In fact, the idea that society is entering a new information age is quite a relative but not an absolute claim. Because the increase in the weight of information in public life is not the result of the last 50-100 years. Historically, from the moment people gathered together and formed society, information has played an important role in our lives. Some of the authors claim that since the Early Bronze Age, when writing was discovered, people continue to live in different stages of development of the information society. The approach to the information society in a narrow sense can be explained by technological development and the growing role of ICT in various areas of our life. In our opinion, the approach that suits the purposes of our research is a narrow approach to the information society. The narrow approach is also reflected in the various definitions given to the information society. The information society is closely related to the digitization of our life.
VI. An attempt to the system of international IT Law legislation
Attributing part of the norms related to information and ICT to different areas of international law allows us to approach legislation in the international IT law in a broad and in a narrow meaning. Information legislation in its broad meaning includes everyhting that is relevant to information circulation. In its narrow meaning, international information legislation regulates informational rights, freedom, dutes, cybersecurity, e-commerce, etc. Mainly, the narrow meaning of regulation is mostly carried out through the definition of countervailing rights and freedoms, determination of obligations – that is, human rights. Most of these public relations (e.g., human rights on the Internet, digital responsibility, cyber security, etc.) are also studied in the field of international human rights law. In our opinion, we can group the main universal standards of IT law that can be applied to the international information sphere and the implementation directions of these standards as follows:
- Norms related to information and knowledge societies, e.g. the Okinawa Charter on the Global Information Society, the Declaration of Principles and Action Plan adopted as a result of the World Summit on the Information Society, etc.;
- Human rights norms – universal human rights documents on privacy, information rights, freedom of expression, etc.;
- Norms related to telecommunications, mass media and the press – many international law documents related to the media, especially the application of freedom of information in the media, defamation, fight against terrorism, etc. Since the importance of the media and mass media has increased, the UN General Assembly discussed the draft international convention on the dissemination of news as early as 1949, but no success.
- Norms related to the Internet and new technologies – The rights that people have offline – that is, in real life – should be protected to the same extent when they are online. Furthermore, artificial intelligence is also linked to many human rights in the digital space.
- Norms on sustainable development – mainly derived from the UN’s “2030 Agenda for Sustainable Development“. The UN General Assembly determined that information society development features, science and technology play a significant role in the implementation of the 2030 Agenda;
- Norms on intellectual property rights – these norms are necessary to analyze the deepening contradictions between intellectual property, especially copyright and information rights, as a result of the impact of ICT. For example, the right of third parties to comment on the trademark may conflict with the exclusive use interests of the trademark owner.
VII. Concluding notes
New technologies introduce new benefits in all areas of social life. New ICT help people to enjoy human rights and freedoms almost at all aspects of public and private life. Yet, new technologies create a new borderless and universal digital space. Therefore, international legal regulation over new technologies is needed. Nowadays, the primary objectives to be stressed out by the international legal regulation are to ensure the safety of international (transnational) information flow, to protect digital rights and freedoms of all human beings, to define the legal and illegal ways of information cycle, to formulate digital access for all with none left behind and to create mechanisms for supervising use of new technologies in good faith.
Nevertheless, the entire structure and nature of international law is not the most appropriate system to achieve these goals. Simply put, international law itself contains lots of obstacles than minimizes its supranational power. First and foremost, the law-making power in international law is not centralized and there is no a clear hiearchy among different types of international legal norms. Secondly, different national law regulations over new technologies set up unsimilar rules what reduces the benefits of transnational information flow. In its turn, international organizations are not still able to align all these differences among national laws of different countries. Thirdly, theorists still challenge the existence of international IT law what put new barriers for efficient international law-making. Forth, access to digital world for everyone has not been ensured yet and due to economic development differences among the countries it is a far-reached goal for future. And this problem undermines the very meaning of equality among people.
In any case, I think that international law is more appriate than the national law to regulate new technologies at universal level. In other words, if there is a field of IT law at the level of national law, it is possible to talk about a separate field of IT law at the international level. Because international law is more favorable than national law for rules regulating global information circulation. In my opinion, the fact that international law, both in the narrow and broad sense of information legislation, has a leading character. It should be noted that information legislation at the international level has historically developed more systematically.