The creation of transnational administrative structures governing Internet communication.

AuthorWeaver, Russell L.
  1. INTRODUCTION

    As the world becomes more economically integrated, increasing numbers of problems arise that are best handled through international treaties and transnational regulatory structures. (4) For example, there have been concerns regarding the safety of products shipped from developing countries. These concerns have involved manufactured products, but have been particularly evident with food. (5) Numerous examples can be found. The Japanese "discovered high levels of pesticides in imported spinach," (6) and U.S. "pets died from eating [imported] pet food contaminated with toxic chemicals." (7) In France, pesticides were discovered in fish imported from Africa, prompting the French government to suspend the importation of all fishes from Uganda, Kenya and Tanzania. This suspension was upheld by the French Council of State which held that it was impossible to trace the origin of imported fishes, and therefore that it was permissible to forbid the importation of all fishes from the affected countries. (8) Between the U.S. and the European Union, there have been disputes regarding U.S. beef laced with natural and synthetic hormones. (9)

    In the modern era, not only does trade flow across international boundaries, so does information. As traditional media sources (e.g., newspapers, radio and television) have been supplemented by the Internet, personal computers (PCs) and various types of handheld devices, more and more people are able to freely communicate with others all over the world. (10) These increased communication flows have led to numerous problems that might be susceptible to transnational administrative regulation and enforcement. For example, Internet communications sometimes contain information that violates copyright laws, (11) or that is simply illegal, including the distribution of child pornography (12) and propagation of fraudulent schemes. (13) The Internet has also been used by Internet gambling businesses (which, while perhaps legal, can produce significant adverse social consequences), and has provided a forum for terrorists to connect with each other and organize concerted action, (14) as well as for the propagation of hate speech (15) and pedophilia advocacy. (16)

    In an attempt to deal with these problems, past president Nicolas Sarkozy of France has called for more international regulation of the Internet, (17) as has German Chancellor Angela Merkel. (18) However, effective transnational regulation requires the participation of all of the major players, not just two countries. If a major nation or group of nations opts out of a transnational regulatory scheme, the chances for effective regulation are significantly reduced. Given that Internet communications can so easily cross international borders, significant gaps in participation may undercut the effectiveness of regulatory schemes.

    Even though transnational structures may be needed to address problems related to the transnational flow of goods and information, nations differ significantly in terms of their cultures, legal traditions and constitutional restrictions. These differences can make it difficult to develop transnational agreements and regulatory structures. In this short Article, we discuss free speech obstacles to an effective transnational structure regulating the Internet.

  2. THE STATUS OF INTERNATIONAL TREATIES UNDER U.S., FRENCH AND ENGLISH LAW

    Regarding Internet regulation, the differing attitudes of countries towards treaties constitutes a major obstacle to effective regulation. In this section, we examine the effect and impact of international treaties under U.S., British and French law.

    1. The U.S. Attitude Towards Treaties

      The United States is frequently criticized for its failure to enter into, or comply with, international treaties. (19) However, it is important to realize that the U.S. regards international treaties much differently than do most other nations in the world. Under the United States Constitution, the Constitution itself is the supreme law of the land, and any statute or treaty that conflicts with the Constitution is invalid. (20) Indeed, under U.S. domestic law, a treaty is regarded as having only the same status as a statute (21) and cannot stand if it is not consistent with the U.S. Constitution. (22)

      The U.S. position on treaties does not preclude all treaties or all international regulation. In fact, in many areas, international cooperation is quite possible. For example, in Missouri v. Holland, (23) the Court held that the U.S. government could constitutionally enter into a treaty on migratory birds. In De Geofrey v. Riggs, (24) the Court upheld a treaty regarding the intestate succession of real property owned by foreign citizens. Indeed, there are many areas where the U.S. can validly enter into international treaties.

      As a result, while the U.S. may have some freedom to compromise and cooperate with other nations on various issues relating to the development of transnational regulatory structures governing the Internet, U.S. negotiators will need to make sure that they do not run afoul of the Constitution. Otherwise, any international treaty or regulatory structure may be unconstitutional and unenforceable in the United States.

    2. The Status of Treaties within the UK

      The status of treaties in the United Kingdom is somewhat different. The UK is a dualist system, and thus the power to conclude international treaties remains within the exercise of the royal prerogative by the Crown's Ministers. Since the Crown cannot change the law of the land by virtue of the royal prerogative, then a direct corollary is the idea that treaties do not constitute a direct source of law in the United Kingdom. (25) Therefore, treaties binding on the United Kingdom do not themselves have the force of law in English courts, and if treaty commitments require changes to UK laws, then legislation must be enacted to that effect so as to incorporate the treaty into national law or otherwise modify national law. (26)

      Unlike unincorporated treaties, customary international law is a source of English law which may be applied by the English courts. (27) Treaties may nonetheless be an indirect source of law, such as when legislation is passed to give effect to their terms. English courts will increasingly take account of the norms of international law, and "the principles of statutory interpretation [now] include a presumption that Parliament intends to comply with the [UK's international] obligations," and therefore "any ambiguity in the statutory language is resolved" in favor of a "meaning that is consistent with treaty obligations." (28)

    3. The Status of Treaties in France

      France cannot be classified as a dualist system regarding the status of international law. (29) Certain aspects of the French system suggest that it has a dualist system, but other aspects suggest that it is a monist system that gives priority to internal sources of law. Quite often, the case law of the Council of State, the supreme administrative Court in France, makes reference to the idea that, "in the internal order", the Constitution must prevail over any other source of law, including international treaties. On the other hand, the French constitutions, since 1946, (30) provide that treaties and international agreements should have direct effect in French courts, and gives those documents precedence over statutes if certain conditions are met, including regular ratification, regular publicity and the reciprocity principle. Article 55 of the Constitution provides that "[t]reaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, with respect to each agreement or treaty, to its application by the other party." (31) Indeed, the most important treaties must be "ratified" by the President of the Republic, which implies a prior authorization by the parliament. The case law additionally provides that the international treaty must be self-executing and that the reciprocity condition is inapplicable to humanitarian treaties and to European Union treaties. Article 54 of the Constitution sets the relationships between treaties and the Constitution in a way which is not clear cut as to which text must have precedence over the other. (32)

      The majority of commentators interpret this provision as proof of the superiority of the Constitution since there is no real duty to amend the Constitution when it conflicts with a treaty. These two provisions are compatible with the idea of a monist system with a priority to internal sources. This supreme internal source is quite obvious for article 54 but also for article 55: it is the French Constitution, i.e. an internal source, which gives priority to an international source of law over Acts of Parliament.

      The superiority of the Constitution over international treaties is now very relative when it comes to European Union law which is often presented as "integrated" in the French system. The current state of law is an interesting attempt to conciliate the superiority of the Constitution and the principle of the primacy of European Union law developed by the European Court of Justice, although the case law first suggested that the Constitution was superior to EU law. (33) One could argue that this system could be taken as an example for other countries which are not part of such an integrated system.

      The Constitutional Court, the French supreme constitutional court, was asked to control the conformation of a statute with the Constitution as provided by an European directive, and an act from European institutions that the member states shall implement in their own legislation. After having decided that it cannot exercise control over laws unless they are contrary to an express provision of the Constitution, (34) it changed the formulation to allow itself to exercise control over directives that are contrary to the "French constitutional identity"...

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