The Formation of International Law + Open Standards

Transcription

1 The Formation of International Law + Open Standards What can we learn? ApacheCon North America Joanna Madej

2 Raise your hand if you read code.

3 Who am I? Current: Communications Strategist in tech, media and nonprofit sectors. Past lives: International Relations (McGill University), International Law (Universiteit van Utrecht), Head of Global Communications (Hippo) Why am I telling you this? The way I see the world is deeply influenced by this overlap of tech, communications and international relations.

4 Your brain on IR Conditioned to think about: Power dynamics, Patterns of decision making, Rules, How + why they re adhered to, Negotiations Structures of behavior where there is no superior authority

5 Why Am I Here? Hippo a building full of Apache Wizards W3C decision to move forward with the inclusion of encrypted media extensions (EME) in its HTML Working Group Charter. OASIS Context Server (CXS) Technical Committee + the spectre of failed previous attempts Stories of negotiations, independent observers bargaining chips and It all felt very familiar...

6 We re not so different, you and I In real space, we recognize how laws regulate through constitutions, statutes, and other legal codes. In cyberspace we must understand how a different code regulates how the software and hardware (i.e., the code of cyberspace) that make cyberspace what it is also regulate cyberspace as it is. As William Mitchell puts it, this code is cyberspace s law. Lex Informatica, as Joel Reidenberg first put it, or better, code is law. Lawrence Lessig, Code is Law

7 Software development especially open source software development, has always had elements of legal scholarship. Beyond forging new codes of behavior in the virtual world, developers become well acquainted with licensing, IP law, and non-profit charters.

8 The F/OSS project and broader legal battles, result in what legal theorist Robert Cover calls jurisgenesis : the collective construction of new legal meanings and artifacts that diverge from statist or dominant interpretations of the law). Developers construct new legal meanings by challenging the idea of software as property and by crafting new free speech theories to defend the idea of software as speech. Gabriella Coleman, CODE IS SPEECH Legal Tinkering, Expertise and Protest Among Free and Open Source Software Developers

9 International Law: the next layer For IR scholars, public international law is fascinating: Rules and principles governing states and organizations of states (but also creating rights for and restrictions upon their citizens) More or less directly accepted by the actors bound by it (states) No police-like power to enforce the law the price for not abiding is exclusion (sanctions)* *technicalities: we can qualify all these points, but for today s purposes this is representative

10 Article The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. The sources of international law, as defined by the Statute of the International Court of Justice

11 Source 1: Treaty Law States come together for a particular objective of codification. Law is expressly articulated and codified, often with copious drafts with the potential input of the state actors, within the forum of an international organization. Notes, revisions and clarifications abound. Politics and deal-making around the treaty are commonplace. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states

12 Fora Travaux Préparatoires Article 32, Vienna Convention on the Law of Treaties Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.

13 Source 2: Customary Law Not codified but still binding can be applied by courts. Identified by the practice of states who feel bound by it. Can be identified and later codified (as was the case with early conventions on laws of warfare) international custom, as evidence of a general practice accepted as law

14 Open Standard Formation is Remarkably Similar De Facto Standards Evolve through practice and widespread acceptance without organisational approval or codification. (ex: QWERTY keyboard, Microsoft Word format for documents) De Jure Standards Developed and approved in a consortium, codified and published. Common Law Treaty Law *a de facto standard can become a de jure standard, ex: HTML, PDF

15 Diverse role of actors Open Standards Treaty Law Working Groups are comprised of individuals and/or entities (people, companies, organizations, non-profits, government agencies) who volunteer to support the development of standards. NGOs are very active participants in treatymaking. That is to say, they address negotiators formally, lobby them informally, put forward proposals and procedures, and generally act as cheerleaders and roadblocks on the way to final signature or failure. Later on, NGOs may monitor implementation, chastise the non-compliant, and encourage reform and renegotiation. -IEEE, How are standards made? -Oxford Guide to Treaties

16 Diverse Fora Travaux 2.8 TC Visibility The official copies of all resources of the TC and its associated Subcommittees, including web pages, documents, lists and any other records of discussions, must be located only on facilities designated by OASIS. TCs and SCs may not conduct official business or technical discussions, store documents, or host web pages on servers or systems not designated by OASIS. All web pages, documents, ballot results and archives of all TCs and SCs shall be publicly visible. OASIS, Technical Committee Process

17 An International Politics of Software? With no police to monitor adherence beyond sanction-like market irrelevance, the world of open standards resembles a private sphere equivalent to the world of international affairs. For those studying rule adherence and behavior in anarchic settings, there s a LOT to study with regards to the politics around software. In international politics and international law, we re already facing issues regarding the convergence of the public and private spheres and it s challenging existing legal frameworks. But I m not here just to geek out at you.

18 Raise your hand if you have an opinion (regardless of what it is) on: US relations with Mexico NATO expansion/funding US in Afghanistan or Iraq Refugee crisis Brexit

19 For non-experts, the media facilitates opinion formation (for better or worse)

20 As technology takes over more of our daily lives and processes the policies behind the underlying technology cannot be niche interest

21 Why am I telling this to you? Because it s a two-way street. Tactics from NGOs that work

22 Thanks for your attention! Let s stay in linkedin.com/in/joannamadej