Is the Treaty of Westphalia threatened in the Cyberspace?

.... Relevance of sovereign rights of the nation state in the age of the Internet

In 1964, Treaty of Westphalia laid the foundations of international relations based on certain principles: sovereignty of nation-states and the fundamental right of political self-determination, legal equality between nation-states, non-intervention of one state in the internal affairs of another state.

While the undermining of nations' sovereignty, in violation to the Treaty of Westphalia, has been witnessed over the years, the emergence of the Internet is being seen as a major threat to the concept of national sovereignty. Historically, any government is supposed to perform three functions - providing national security, regulating economic activities and protecting & promoting civil and moral values.

The Internet is said to have limited the powers of governments to perform all the above three functions - not getting access to citizens' data for crime prosecution and national security from the Internet based intermediaries located outside the jurisdiction of such nations, inability to regulate electronic commerce and apply local taxation rules; and inability to regulate content on the Internet to maintain social & the moral fabric of the society.

These are just a few examples in each of the government functions.

The emergence of transnational institutions such as ICANN and intermediaries on the Internet has redefined governance - wherein non-state actors have larger say in how the Internet is governed, making nation states helpless spectators. However, the relationship such these institutions share with the US government (by virtue of their incorporation in the US and the fact that the Internet was born in the US) has raised eyebrows and more so after revelations of the PRISM program. Many countries see the collusion between US government and such institutions as unilateral control of the Internet by the US.

Governments around the world want equal rights in the governance of the Internet; else the fears of balkanization of the global Internet loom large. China has done it. Brazil seems to be making aggressive statements to this effect and there are some proposals in the Europe mooting localized email service to avoid US snooping. Such fears, if realized, would undermine the very benefit, Internet has delivered over the years.

Bringing the Internet under the aegis of the International regime such as the UN has been proposed as a possible solution but the world is divided on this. Proponents of the Internet believe that this proposal is an effort by authoritarian nation states to bring Internet under governmental control and that any form of such control will undermine the benefits of the Internet and kill innovation.

The argument further is that authoritarian governments have always got historically threatened by innovations in information and communications technologies such as radio and TV; as such advancements undermine their ability to govern their citizens. Internet is no exception for such countries and if one views the Internet from liberalism point of view, one may observe that the Internet empowers citizens and makes governments more accountable. So it is good for liberal countries. Many also believe that it is technologically impossible to regulate the Internet by governments and therefore efforts in this direction will be futile.

The global architecture of ICT products and services makes it difficult for the governments to exert controls over the personal, societal and business transactions. The business philosophies of the transnational corporations may conflict with the local governance approaches. This results in non-cooperation by these corporations in many instances ranging from removal of controversial or illegal content to investigation of registered crimes to counter terrorism.

These transnational corporations, also routinely publish transparency reports on government requests for getting access to data of citizens. Such reports create public and media pressure on the nations. Inability of governing affairs in the cyber space, the way it can be done in physical space, is becoming a contentious global issue.

It is the interest of the global community to continue leveraging the benefits of the Internet for the betterment of the mankind. However, the sovereignty challenges highlighted above must be deliberated in the global community and pragmatic, business friendly and forward leaning solutions that are acceptable internationally must be developed to lay down the rules of engagement in the cyberspace - needless to say without eroding the benefits of the Internet and undermining innovation.