From Human Rights Aspirations to Enforceable Obligations by Non-State Actors in the Digital Age: The Case of Internet Governance and ICANN

Monika Zalnieriute
21 Yale J.L. & Tech. 278

As the global policymaking capacity and influence of non-state actors in the digital age is rapidly increasing, the protection of fundamental human rights by private actors becomes one of the most pressing issues in global governance. This Article combines business & human rights and digital constitutionalist discourses, and uses the changing institutional context of Internet governance and the Internet Corporation for Assigned Names and Numbers (‘ICANN’) as a case study to argue that economic incentives fundamentally act against the voluntary protection of human rights by informal actors in the digital age. I further contend that the global policymaking role and increasing regulatory power of informal actors such as ICANN necessitates a reframing of their legal duties by subjecting them to directly binding human rights obligations in international law. I argue that such reframing is particularly important in the digital age for three reasons. First, it is needed to rectify an imbalance between hard legal commercial obligations and soft human rights law. This imbalance is well reflected in ICANN’s policies. Second, binding obligations would ensure that individuals whose human rights have been affected can access an effective remedy. This is not envisaged under the new ICANN bylaw on human rights precisely because of the fuzziness around the nature of ICANN’s obligations to respect internationally recognized human rights in its policies. Finally, I suggest that because private actors such as ICANN are themselves engaged in the balancing exercise around such rights, an explicit recognition of their human rights obligations is crucial for the future development of access to justice in the digital age.