How to Create International Law: The Case of Internet Freedom in China

By Tsai, Katherine | Duke Journal of Comparative & International Law, Winter 2011 | Go to article overview

How to Create International Law: The Case of Internet Freedom in China


Tsai, Katherine, Duke Journal of Comparative & International Law


INTRODUCTION

In early 2010, Google, Inc. ("Google") announced that it was no longer willing to assist the People's Republic of China ("China") with censoring Google search engine results in mainland China. Google subsequently disabled Google.cn and redirected web users to Google.com.hk, an uncensored search portal based in Hong Kong. Google's actions prompted spirited responses from both the United States and Chinese governments, and exposed a fundamental difference between the two countries' ideologies regarding internet freedom. Like Google, the United States stressed the importance of internet freedom to human rights and trade. In contrast, China claimed that internet freedom was another variation of Western imperialism and would cause political instability. Unlike China, this Note begins from the premise that internet freedom is a desirable norm that can encourage government accountability, advance educational goals, and spur artistic and scientific innovation. Based on this premise, this Note examines how the United States, a state actor, and Google, a non-state actor, may achieve internet freedom in China through the creation of international law.

This Note constructs a variant of one scholar's theory of international law to explore the ways in which state and non-state actors can induce internet freedom through international law. In How International Law Works: A Rational Choice Theory, Professor Andrew Guzman uses the concept of the "Three Rs of Compliance" or "reputation, reciprocity, and retaliation" to explain why state actors comply with existing hard and soft international law ("legal" and "quasi-legal" agreements, respectively). (1) This Note expands Guzman's rational choice theory by applying it to state actors and the creation of international rules. When applied to the creation of international law, the original definitions of Guzman's reputation, reciprocity, and retaliation evolve into a new concept that this Note terms the "Three Rs of Cooperation." The Three Rs of Cooperation--a variation of Guzman's rational choice theory--describe why a state actor might enter into a new international agreement. This Note applies the Three Rs of Cooperation to the circumstances of early 2010 to explain how China may one day enter an international agreement guaranteeing internet freedom to its citizens.

In developing the Three Rs of Cooperation, this Note broadens Guzman's rational choice theory to include non-state actors. Although Guzman's original theory only analyzes the role of state actors in international law, it is necessary to examine the role of non-state actors in this context because of their significant influence in shaping the international conversation conceming internet freedom. A "non-state actor" is used primarily in this Note to describe multinational companies such as Google or Microsoft Corp. ("Microsoft") that are capable of influencing state behavior.

Although the rhetoric employed by Google and the United States frames internet freedom as an essential human right, (2) this Note does not discuss how internet freedom may be achieved through human rights instruments. Human rights instruments that protect the freedom of expression, such as Article 19 of the Universal Declaration of Human Rights, (3) Article 19 of the International Covenant on Civil and Political Rights, (4) and customary international law are arguably not binding obligations upon China, even if freedom of expression may be said to encompass internet freedom: The question of whether existing legal obligations require China to provide internet freedom to its citizens is outside the scope of this Note.

In summary, this Note fashions a theory that explains state cooperation with the creation of international law by building upon Guzman's theory of state compliance with existing international law, and applies this theory to the context of internet freedom in China. Part I discusses the events surrounding Google's withdrawal from China in early 2010. …

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