GoJIL Vol. 7, No. 1 (2016)
A Public Law Approach to Internet Standard Setting
This article lays the foundations of a comprehensive analysis of the legitimacy of global Internet governance institutions from the perspective of public law. It does so by extending the application of the international public authority approach (IPA) not only beyond public institutions, but beyond ICANN and the unique identifiers regime, which have been the focus of public and scholarly attention so far, to cover another domain where informal and private institutions play a leading role: Internet standardisation. In order to do so, section B. provides an overview of global Internet governance as an example of the privatization and informalization of authority that characterizes global governance. Section C. presents IPA’s conceptual framework and situates it within the broader context of public law approaches to global governance, focusing on the way it justifies the application of pubic law standards to the exercise of authority by informal and private institutions and instruments. Section D. inquires whether the development of the main technical standards of the Internet, the TCP/IP protocol suite, by two private and informal institutions, the IETF and the W3C, qualifies as an exercise of international public or functionally equivalent authority. These standards can be regarded as authoritative because they constitute the code of the Internet and because economic network effects render them economically obligatory. Whereas technical standardization meets IPA’s original functional equivalence criterion for identifying those instances where private authority should be assessed and subjected to public law standards, the extent to which it qualifies as public authority according to Goldmann’s more demanding conception of it remains an aspect to be clarified in further research.
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