General Principles of Public Order and Morality and the Domain Name System: Whither Public International Law?

Abstract

This article discusses the dispute settlement procedure set up by the Internet Corporation for Assigned Names and Numbers to assess whether applied-for generic top-level domain names (gTLDs) are contrary to accepted legal norms of morality and public order that are recognised under general principles of international law. The standard of general principles of international law for morality and public order exemplifies the introduction of a legal yardstick to assess gTLDs. First, the article argues that this standard was carefully crafted to fulfil, in theory, the goals of the settlement procedure. In practice, however, it is unclear whether such general principles are apt to articulate, in a legal form, the norms of public order and morality. Second, the article demonstrates that the expert panels adopted different approaches in deciding the cases brought before them either by prioritising the protection of the users' health online over freedom of expression or by focusing on preserving freedom of expression under the human rights paradigm. The expert panels construed their mandates differently and implicitly applied different concepts and bodies of public international law into their framing of a new area of regulation. The analysis underlines that one should be cautious when conceptualising and balancing competing interests in the domain name space, such as, on the one hand, the availability of information online and economic considerations and, on the other, the accommodation of public interest concerns in the Internet's root zone. The article concludes by emphasising that international law is not a panacea for highly debatable policy issues in Internet governance.