A state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.-Definition of Health, Preamble of the World Health Organisation (WHO) Constitution, 1948
For months, many argue that our Covid (C-19) response is a planetary fiasco, whose size is yet to surface with its mounting disproportionate and enduring secondary effects, causing tremendous socio-economic, demographic and cross-generational, political and psychosomatic contractions and convulsions. However, worse than our response is our silence about it.
It is an established fact that the quintessence of Nazism was not Hitler and the circle of darkness around him. It was rather a commonly shared ‘banality of crime’ atmosphere: Benevolent acceptance of ordinary village people living next to Auschwitz, Mauthausen, Dachau that the nation must be ‘purified’ …
The day when questioning stops and silent acceptance (especially among the well informed, well mobilised and educated ones) becomes a ‘new normal’ is a day when fascism walks in a big time. Of course, today we have a diagnosis for it: manufacturing consent through choice architecture. It is done via fear-imprisoned and media infantilised (returned to the pre-Oedipal phase) psychology of the de-socialised and alienated, an atomised one.
There is no political or economic crisis. There is neither energy crisis, nor health, nor environmental crisis. Every crisis is just a deficit of cognitive mind that comes to the same; a moral crisis.
Ecological Globalistan, Political Terroristan, the author
Did we really forget basic teaching of our history: Every time when the power was unchecked, it degenerated into the obscure brutality; ritualising its force with a stamp on or under our skin to visualise and immortalise the twilight of reason?
So, our C-19 response and its widespread synchronicity (of measures and its timing) illustrates – the argument goes – nothing else but a social pathology of hostage crisis: the non-transparent concentration of power, and our overall democracy recession – further bolstering the management of apathy via surveillance and social control systems. All that as lasting consequences of cutbacks, environmental holocaust, deintellectualisation, liberticide, privatisation (or PPP-ization) of key intergovernmental and vital national institutions, ill-aimed globalisation as well as of the fixation on overly allopathic, mandated (not a repurposed, but usually novel expensive and inadequately tested) drugs-centred healthcare, and lack of public data commons. Public health or private wealth? Pandemic or plundermic …
Urban communities of developed countries are especially hit hard. Within these groups, the vulnerable categories like pre- and early- school children, and elderly suffer the most. People there wonder if they are (aggressively) coerced to participate in something they fear from the beginning is a lie. No wonder that the trust in and support to governmental and intergovernmental institutions is rapidly deteriorating.
Ever larger number of citizens do not see the mainstream media (or pop culture celebrities) at service for the population, but as a cartel that follows a special interest. Dialogue and opinion is discouraged and silenced, if not, even sanctioned. Our western, ‘modern’ medicine still falls short of consensus on a fundamental question: Is illness contracted (from outside) or created (conditions within our body). Hence, the faith in western medicine is in a free fall. Compromised generational contract and thinning social consensus are challenging our fabrics like never before in recorded history.
The first real stress-test since the end of the WWII, the United Nations (UN) clearly did not pass. Many feel deeply disappointed with and disfranchised by the universal organisation and its global Agencies for their steady self-marginalisation (and reduction onto self-seeking entities). Is our cohesion irreversibly destroyed?
Early lockdowns, mid-March 2020, were justified by a need to flatten the curve of the ‘sudden’ virus (harmfulness, mortality and transmissibility) impact, since there were not enough hospital beds. In the meantime, the lockdowns were extended and widened, curves not arguably altered. Still, for the past 12 months, there is hardly any new hospital built in the EU although the non-essential medical services, at most cases, were suspended. Neither there was nor is any massive investment into general health prevention. The only visible infrastructure growth is in 5/6G network expansion.
Following a simple ratio that the one’s state of health is genetic expression of life-style choices made, it is no surprise that there are also growing speculations if the lockdown – as the most notorious expression of monofocal perspective and rejection to any scientifically contested, debate-based integrated judgment – is invasion or protection:
- And, if is there any back-to-normal exit from the crisis, or this disaster ‘turned into planetary terror, through global coup d’état’ will be exploited to further something already pre-designed (with a fear, not as a side-effect, but rather as a tool manufactured to gain control). Simply, is all that more related to the biotronics and demographics (IoT and Internet of Bodies) – ‘epsteinisation en masse’, than to health and economics or any common social purpose?
Undeniably, nature of politics also changed: Political parties – main agents of political life of any society – have amorphized from giant membership organisation to fundraising machines. Thus, Le Monde Diplomatique – while examining the possible merger between tech/pharma oligopoly and political monopoly – claimed from a very beginning of this crisis that: “Political decisions have been central in shaping this tragedy — from the destruction of animal habitats, to the asymmetric funding of medical research, to the management of the crisis itself. They will also determine the world into which we emerge into after the worst is over.”
Over the past 30 years, every critical juncture had a similar epilogue: pardon and enhancement for the capital, a burden and suppression for the labour. The C-19 is no exception to it: Ever since early lockdowns of March 2020, the capital flows unhindered while the labour, ideas and humans are under the house arrest. The XXI century frontline is the right to health (incl. body integrity and informed consent) and labour, privacy and other fundamental human rights and liberties. (LMD, IV20)
Is the political, economic or moral triumph of the West still possible past this crisis?
Every crisis since Westphalia until the so-called financial crisis of 2008-09, political West exited in (what was seen as) moral triumph. What is in front of us? If the world is flat, will it become one big pharma Banana Republic – as many fear?
Earth provides enough to satisfy everyone’s needs, but not for a single man’s greed
The rate of profit does not, like rent and wages, rise with the prosperity, and fall with the declension, of the society. On the contrary, it is naturally low in rich, and high in poor countries, and it is always highest in the countries which are going fastest to ruin.
The Wealth of Nations, Adam Smith
Still to be precise, the WHO- decreed virus pandemic brought nothing truly new to the already overheated conduct of, and increasingly binarized, world affairs. It only amplified and accelerated what was present for quite some time – a rift between alienated power centres, each on its side of Pacific, and the rest. No wonder that the work on and dispatch of the C-19 -related injection (vaccine) is more an arms race than it is a collaborative humanity plan. Look at its geography and conditionalities.
Would all this be – in its epilogue – about the expansion of (the 4th industrial revolution caused) techno-totalitarian model of government as an alternative to liberal democracy (from one-party democracy to one-party autocracy)? Devolutionary singularisation into techno-feudalism as the highest stage of capitalism? Is now a time to return to the nation-state, a great moment for all dictators-in-waiting to finally build a cult of personality? Hence, will our democracy be electro-magnetised and vaccinated for a greater good (or greedier ‘god’)? Is the decolonisation (and deprivatisation) of global health a failed attempt? Will we (ever) be allowed to exit the year of 2020?
Turning human body into an (purposely unoptimized) operative system that needs constant updates and antivirus programs is a dangerous thought. The entire scientific community considers the attempt to mandate the experimental biological agent of unchecked reproductive toxicity and other side effects (while calling it the C-19 vaccine) as very troubling. Having these calls chiefly advocated and aggressively promoted by the handful of self-interest driven private companies – all accompanied with a contradictory and confusing governmental stance which is siding up with the industry it was supposed to regulate – is highly disturbing. No surprise that ever-larger societal segments perceive it as liberticidal warfare, not an enhancing welfare. The world that for over a century portrayed itself as Kantian is rapidly turning into a dark Hobbesian (immuno-apartheid) place. Is now anarchy just one step away?
One is certain, confronting the long-term interests of stakeholders with the short-term interests of shareholders, the private sector from both sides of Atlantic exercises disproportionate power in the technological share (infrastructure and data). It also largely benefits from the massive public research funds – especially in the fields such as bioinformatics, AI, nanorobotics, or geophysics engineering – while in return paying dismal, negotiable tax if any at all.
Far too often it comes with the nondisclosure agreements, liability outsourcing/ protections and other unilaterally beneficial legal instruments as well as with the close ties between the private sector, intelligence agencies and media.
The same applies to a big Pharma which – through pornography of (decontextualized) numbers over the widening fields of misery – increasingly dictates a non-preventive, monofocal approach to medicine and research, and controls reporting about it – not always in the name of our public health.
Therefore, the above represents the largest underreported (or ignored) threat to our democracy and future societal conduct.
Conclusively, bioinformatics (including the synthetic biology and data-to-genes sequestration for data storage or data mining purpose) – as much as the geoengineering itself – is a dual-use technology. Past its formative age (with a digital infrastructure near completion), it has today a huge weaponization potential for at home and abroad, be it for state or non-state actors.
Consequently and urgently, this necessitates a comprehensive legislation which builds up on the Universal Charter of Human Rights and Nuremberg Code, and rests on its effective enforcement (with the monitoring of compliance mechanisms as set for the IAEA, OPCW, RC-BTWC and the Nagoya protocol), nationally and internationality, and for all actors.
All state authority is derived from the people (XX 2) … All Germans shall have the right to resist any person seeking to abolish this constitutional order, if no other remedy is available. (XX 4)
Civil disobedience as the Constitutional Right
By many accounts, 2020-21 – time of astonishing synchronicity, when distancing became social – will be remembered as the worst period in living memory (since 1939). Some would say; C-19 stopped history, as it locked down our dialogues and atrophied political instincts of masses. All this with too many cases of arbitrary censorship streaming almost in a form of neuro-linguistic programming from the privately owned social platforms. Still, 2020-21 only quarantined and halted us, while in fact it accelerated history. This especially refers to the ‘Old Continent’.
People have the right to know what those in power are doing, especially in times of crisis. Therefore, Europe’s eldest and the most comprehensive multilateral mechanism – Council of Europe, promulgated Convention on Access to Official Documents more than ten years ago in Tromsø, Norway (entering in force on 01 December 2020). This Charter is the first binding international legal instrument to recognise a general right of access to official documents held by public authorities.
As this author noted back in spring 2020: “It is amply clear from the C-19 event that the right to health is an issue for all. The search for a reliable cure for pandemics control is not a matter of private business, but of fundamental individual rights situated on higher levels of sociableness, as embedded in the UN and EU Charters, and being obligatory for each of the UN Specialized Agencies or EU bodies to comply with. (Not a fear-based manufactured giving-in, but the right for informed consent as an inseparable segment of the constitutionally endorsed right to health.)
Even if the vaccine becomes the agreed or preferred option, it must be made available patent-free for all, and locally manufactured. However, binarization of debate onto a pro-and-con vaccine represents a dangerous reductionism and waste of planetary energy critically needed for a holistic and novel approach. There is no silver bullet for the European or world problems. Consequently, there is no solution in one-directional medical research in response to any pandemic, and in a single-blended (or centrally manufactured, hastily introduced) and mandated experimental medication for all. This especially refers to the genoccine. (Dogma is based on a blind belief; science necessitates constant multidimensional exploration. Science, especially a medical one, holds no single or absolute truth: The closest it can get is to the least wrong answer – which must be contested constantly, literally every single day.)
Proportionality of our (current and future) responses in Europe is another key issue. Hence, what presents itself as an imperative is the universal participation through intergovernmental mechanisms and popular control to it. That rule applies for at home and for abroad, as the Union has to comply with (and set example to) it urgently.
Growing particularisms in Brussels quarters, where (on taxpayers’ money and public trust), it is more and more the particular – be it individual, regional, national, lobby-groups driven – interest that prevails over the solid all-European project of our common presence purpose and future. Europe or EU Rope?
Past the Brexit, the Union has to be extra cautious about its chronic democracy-deficit, apparatchik alienation of Brussels, as well as the brewing concerns that the EU without UK becomes yet another greater Germany.
Of Paper Tiger and its Talking Heads
The one-year score (March 2020 – March 2021) of the Union is highly disturbing:
After all, the truth is plain to see; countries with the highly (deregulated and) privatised health sector are the C-19 worst offs (eg. USA) – as measured by the fatalities, overall socio-economic cost (incl. the long-term health prospects, or redistribution and inequalities), damage to the social consensus (safety and security), and the speed of recovery. Countries of the centralised health sector which resides strictly in public hands and is under popular control did and are still making it far better. Those among them that keep high respect for individual rights, liberties and freedoms (eg. Sweden) are by far the best achievers.
How the issues of health will be balanced with the human rights – as these two are not excluding but are complementing each other – is the fundamental issue for the future.
Additionally, how (geno and pheno) data are generated, stored and governed, and ultimately used will be the second defining issue of global public health (and planetary support to or conflict over it) in the coming decades. That very much includes a dubious imposition of exclusionary digital bio surveillance grid that some circles advocate as a presumptive recommendation to restore ‘normalcy’.
All in all, the one-year score (March 2020 – October 2021) is highly disturbing;
Not only the socio-economic one, but every aspects of Western vitality is also vanishing rapidly, making the prospect of triumph of its model (or its demographic relevance) less likely with every passing day. Hight time to accuse the silence?
Beyond the disputes about possible initial intentionality (allegedly inspired by the sectarian, class, demographic, environmental or any other drive), let us close this text by displaying the probable epilogue: An ever-larger number of military strategists see (unfolding of) the C-19 event as a (techno-)biological warfare.
Here comes the powerful reminder that history gives us: decisions to go to war were never based on facts but on perceptions. Therefore, make no mistake; the end game to any further continuation or escalation (of attempt to singularise the biological, chemo-electric and digital, and to centrally control it) is the nuclear holocaust which none of us will escape.
Reducing the human integrity on a bodily space (and freely harvestable biodata) to which (an early capitalism territorial raw grab) business model should apply – is truly diabolic idea. Moreover, it is a suicidal idea – a last outcry before the ultimate self-destruction. (Imperialism, as the highest stage of capitalism, manifests through the Nazification of question of space. As always, an expansion over the limits of physics and society leads to a fast contraction and ultimate death).
Thus, invading human body on the same principle as the colonization of the west followed the age of so-called Grand Discoveries. (Interestingly, then in XV century – almost as now in XXI – Chinese were the first to explore and circumvent, while the western peripheries of than global civilization only brutally followed and accelerated.)
Finally, monetizing this newly acquired space in the absence of expanding anywhere else: Treating human health like a business model and invading unconsented humans through the hijacked medicine. (Actually, what we consider as ‘medicine’ is also a political construct. There is a western medicine – which we falsely label as ‘medicine’. But, over half of this planet follows the Vedic, Chinese, Shaman, and several other traditional medicines in their approach towards life health and nature.)
But to extend the context:
History of (what we, humans, describe as) technology is a story about primordial (survival-driven) fear far too often turned into a long line of violence towards all organic and inorganic systems on our planet. Too many times our technological breakthroughs were linked to destruction (with violence against nature and societies as means to introduce it), instead of being coupled with or supportive to creation. Otherwise, our millenniums-long technological march would have brought us to the Gates of Triumph in self-realisation of human race.
If historically our technological advancements (by its motive and method of introduction) only managed to accelerate frequency and severity of (disharmony and) alienating aggression on this planet, while repeatedly falling short to bring about everlasting self-realization of humans – than this anthropotechnic is based on confrontation (coercive introduction) and not on cooperation (support and inclusion). Then both, its intensity and direction – corrosive, polarizing, disruptive and reductionistic; must be thoroughly re-examined.
No wonder that our technology (or to say: ‘’technology’) is seen by many as the developmental dead end. Cosmos means balance/perfect order, chaos is absence of it.
 The UN Secretary-General, Antonio Guterres is well aware of it: Addressing the Organisation’s General Assembly at the 75th anniversary (September 2020) he admitted: “… people continue to lose trust in political establishments. … widespread protests against inequality, discrimination, corruption and lack of opportunities all over the world – grievances that still need to be addressed, including with a renewed social contract.”
 In fact, in Germany and several other EU member states the number of hospital beds in the intensive care units is even reduced for up to 20% compared to its pre-C-19 capacities. Additional (politically polarising) controversy are millions of euros spent on diagnoses tests which are scientifically contested.
 In the formally neutral and peace-loving Austria – following the provisions of a strict autumn 2020 – spring 2021 lockdown – only the basic supplies shops were opened. However, besides the grocery stores, mobile phone shops and pharmacies, it also included the guns shops, while the schools, theatres, libraries and museums remained closed.
 There is an observable trend that – for the past few decades – our public health has been at first globalized, than centralized, with the ongoing privatization and its monopolization as the final phase.
 The year of 2020 recorded unprecedented planetary contractions and nearly a free-fall recession. Of course, it is misleadingly ascribed to the pandemic instead of being attributed to the C-19-related measures. Among the countries of the G-7 + G-20 group only China had scored growth. Cross-sectoral picture is the same – deep recession. Only the big tech and big pharma scored surpluses in 2020. (World Bank Report 2020)
 The extraordinary measures introduced in spring 2020 were and still are more administrative/political than they are scientific based. That starts with the very definition of pandemic (infection percentage threshold); goes on with the diagnostics tools and protocols as well as the way to proclaim someone infected or ill (PRC tests and number of cycles applied, or medical doctor thorough examination), and finally it culminates with a diagnosis of death (mandatory autopsy or not). Therefore, it is safe to say that the C-19 has – in its manifestation – far more political than the health elements.
 Talks about ‘vax-passports’ falls under the same category. Not only that it is contrary to the ruling of the Council of Europe – conditioning freedom of movement with an exposure of personal medical record is contradicting any notion of Human Rights and every of its Charters. Liberties and freedoms are fundamental inalienable rights, not privileges (to be administratively or arbitrarily taken, given, conditioned or dosed).
 “The pandemic has also reviled how imbalanced the relationship between the public and the private sector has become. In the US, the National Institutes of Health (NIH) invests some$40 billion a year on medical research and has been a key funder of the R&D of C-19 treatments and vaccines. But pharmaceutical companies are under no obligation to make the final product affordable to Americans, whose tax money is subsidising them in the first place. … It was a typical move for Big Pharma. … Even so, US drug prices are the highest in the world. Pharmaceutical companies also act against the public interest by abusing the patient process. … Equally bad deals have been made with Big Tech. In many ways, Silicon Valley is a product of the US government’s investments in the development of high-risk technologies. The National Science Foundation funded the research behind the search algorithm that made Google famous. The US Navy did the same for the GPS technology that Uber depends on. And the Defence Advanced Research Project Agency, part of the Pentagon, backed the development of the Internet, touchscreen technology, Siri, and every other key component in the iPhone. Taxpayers took risks when they invested in these technologies, yet most of the technology companies that have benefited failed to pay their fair share of taxes. Then they have the audacity to fight against regulations that would protect the privacy rights of the public. … the power of AI and other technologies being developed in Silicon Valley, a closer look shows that in these cases, too, it was high-risk public investment that laid the foundations” – states prof. Mazzucato (FAM 99/6/20)
 See, eg. the EU Pandemic Accelerator Act (April 2020) or the July 15th 2020 Suspension of the EU GMO-related legislation (the so-called EU Council adoption of the Commission’s proposal to accelerate clinical trials and the supply of medical product containing the GMOs) – all promulgated speed-track without a prior investigative scientific reports, hearings or debate (as if it is a Capitulation Agreement). These are now submitted to the European Court of Justice for a legality and impartiality judgment. In the same fashion the recently adopted European Democracy Action Plan (EDAP) leaves many ambiguities, while also massively contradicting the European Convention on Human Rights.
 All four belonging to the United Nations system: International Atomic Energy Agency (IAEA), Organisation for the Prohibition of Chemical Weapons (OPCW), Review Conference to the Biological Weapons Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (RC-BTWC), the Nagoya Protocol to the Biological Diversity Convention on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation (NP).
 The US Foreign Corrupt Practice Act of 1977 could be used as a model for the universally binding instrument to internationally prosecute and punish any corporation that pay bribes to foreign officials.
 German Constitution (Art. 20). Similar provisions are encapsulated in most of the national constitutions in Europe and beyond. It rests on a notion that the state and people are bound by the social contract within any given society, and that in case of a breach of confidence, citizenry has an inalienable natural right to disobedience.
 The face covering coupled with distancing hinders our most basic functions of all – since humans are genuinely social animals. Social interaction for us is both a frame and content, an evolutionary constant. Physical distancing which is named a social, cloth ribbon which is named a mask and rnk-messenger appliance which is named a vaccine – all three error in objecto trigger confusions, and spark increasing mistrust and growing disobedience. Eg. it is crucial to differentiate the physical from a social distancing. Physical one is a preventive (punitive or medical) measure while the so-called social distancing is a century-old concept of (empathy charge and) social engineering. To this end, see works of the US sociologists Park, Hall and Bogardus (scale of social distancing), and Simmel’s ‘theory of the stranger’ – Simmelian social geometry (Germany 1908).
 During times of crisis national security arguments are often evoked to deny information to be requested and accessed. However, it is exactly at such times that a timely and trustworthy information from official sources is most needed. Informational transparency in accordance with the principles set out in the Tromsø Convention prior to the C-19 pandemic could have helped to avoid the ‘infodemic’ and a subsequent massive public distrust.
 Analysing the specifications indicated by the manufacturers themselves, the genoccine seems more accurate name for the experimental (thoroughly untested), new, RNK/DNK modified, nanotechnology-based tri-injecting solution that is currently advocated for the C-19. Some critics even reject to call it vaccine, arguing that it is in fact a GMO implant/hacking device or geno-therapy (which needs to be administered periodically, while vaccine is a onetime shot). Such claims are ignored, but not refuted yet.
 See: “World on Autopilot: The UNSC should urgently address C-19”, New Europe Brussels (Bajrektarevic-Agam, 10 APR 20); “Contributing to a Safer, Healthier and Prosperous World”, Diplomat Magazine Hague (Bajrektarevic-Goutali, 12 MAY 20); ”Return of Global Stewardship: the UNSC should urgently address C-19 – addendum” (Bajrektarevic-Agam, 25 May 20), ModernDiplomacy Athens/ Brussels; “Democracy Vaccinated, – The post-Corona epilogue of Sino-American relations”, (Bajrektarevic), L’Europe Unie Intl. Journal, Revue d’études européenne, Paris, France 2020 (15) 2.
 Interestingly one of the very first works on the so-called New Age Normal (and European integration) originates from an unexpected place and unexpected times: A war time Nazi Minister for Economic Affairs and Head of the Reichsbank, Walther Funk, in his 1943 The Economic Face of the New Europe propagated ideas on the creation of a European economic area controlled by the New Germany.
 On December 18th 2020, the UN General Assembly (UNGA) adopted Resolution against glorification of Nazism, neo-Nazism and other practices that encourage modern forms of racism and xenophobia. 60 UN members co-sponsored resolution, while only 2 states casted negative vote. Rather strikingly and disturbingly, Germany refrained from voting in favour (abstained). The UN GA recommends states “to take appropriate concrete measures, including legislative and educational ones, in accordance with international human rights obligations, in order to prevent revisionism in respect of the Second World War and the denial of the crimes against humanity and war crimes committed during the WWII.”
 Soon we are going to retrospect on all what is happening today. What will we conclude? Dr. Robert Malone, inventor of the mRNA vaccine technology, claims the following: “… There’ve been times when as a culture facing major crisis – war, famine, and the like – decisions have been made to cross ethical lines. (Sadly enough, Europeans are rich of such history, rem. aut.) It is convenient in fogs of war to rush on judgement calls where we say that the benefits merit compromising some of our core ethical principles. Invariably, in retrospect we always end up saying that was a grave mistake.”
 Detailed account about the Conflict of interests affecting judges of the European Court of Justice (ECHR) has been produced by the European Center for Law and Justice (May 30th 2021)– claiming that at least 20% of all judges might have had a troubling and long-lasting links with the non-European non-state sector. /see: One year after the report on NGOs and Judges of the ECHR: Overview (eclj.org) /
 While the EU officially insists on anti-Chinese narrative, deeds are telling contrary: Practically all prescribed face masks within the Union are manufactured in and shipped from China. Diagnostic kits for C-19 testing are also largely from China (in many Member states there are – contrary to the clear health regulations – available in pharmacies but without any inscription written in the language of that EU country). This sends disturbing image about inconstancy and inauthenticity of the EU rhetoric, as well as about the inability and incompetence of the Union to re-start production even of the low-tech items such as cloth masks. Finally, the largest and ‘most successful block in history of mankind’ was unable to insist on the existing cheap, safe and effective drugs, or to produce its own medicine related to the C-19. Only one of the (emergency use) approved vaccines in the EU is partially made in the EU (Sweden), but even that one fundamentally borrowed from the external research (Russian virology solutions).
 The European Union summit on Urgent response in May 2020 (May 07th) was hastily allocating billions of tax-payers’ money on the irrationally lionized, single-mandated, yet unseen, future medication – all that in a rather opaque and nontransparent way. However, what finally triggered enormous public outcry and further disfranchising was an euphoric closure of that summit by the Commission President Ursula von der Leyen (unelected Brussels’ top official). By many accounts, her final words told with a delight “Thank you Bill for your leadership” acknowledging and praising a lead role of the non-state actor who is not even European (and who was – not giving but – receiving lavish funds) was an all-time low of the European house and its representatives – ever since the Commission and other institutions of the Union exist.
 Although initially representing the asymmetric workings of the non-state actor, the so-called Sarajevo assassination of 1914 triggered the WWI – a gigantic trans-continental conflict between all major powers of that time (and a rapid demise of many of them, in just few years’ time). This self-destruction lasted for 4 years with all unconventional (biological and chemical) means than at disposal used. What has happened? The non-state actor from Bosnia assaulted the Head of State in-making of the major power (Heir to the Habsbourg Empire). Now comes the most disturbing part: Asymmetric confrontation between the state and non-state actor in one corner of Europe (southeast) triggered a direct armed conflict and the immense bloodshed – but only months later and via spill over from the other corner of Europe. Militarily, the German attack on the Belgian Ardennes (northwest of Europe) marked the beginning of the total destruction – WWI. In summer 1945, Soviets were rushing through Korean peninsula to get a stake in forthcoming occupation of Japan. As a consequence, Americans repeatedly nuked that country’s inland. That much about controllability of (non-)intentionality and about mastering the outcome. Overconfidence (that easily turns into arrogance and ignorance and yet into miscalculation), is another (mass) killer. Just to recall but few history chapters by naming their chief protagonists: Darius III, Hannibal, Napoleon, Hitler, or places such as Điện Biên Phủ.
 For more on the topic see: Fukuyama’s defensive modernization, or author’s definition of anthropotechnique in his ‘Geopolitics of Quantum Buddhism’.
Submarine Cables: The Global Data Infrastructure and International Law of the Sea
As a lay person, it is a common perception that data and communication signals travel through multiple satellite systems orbiting around the earth. However, this is a grave misconception. As one writer puts it, “but that the communication signals themselves are then broken into bits of data, which then ply the ocean depths at the speed of light via unseen cables, is hard to imagine.” The reality is that 99% of the world’s communication data is currently moving through hidden undersea cables. These are now befittingly called as the “Out-of-Sight Arteries of Globalization”. These submarine cables are functioning as a global infrastructure for the movement of inter alia big data, communication signals, phone traffic and even financial capital around the world. During the past decade, the weaknesses and gaps in the protection of these underwater fiber-optic cables under International law has come to the fore. This article is aimed at critically analyzing the vulnerability in International law to protect these global underwater data highways.
History & Background
In the year 1858, the first transatlantic subsea cable was laid down between Ireland and Newfoundland which snapped 26 days later. In the year 1864, another transatlantic cable was placed between the same territories and this time it proved to be successful. Following this success, there was no looking back and submarine cables were placed between various territories along the seabed of the Pacific Ocean. Interestingly, the transmission speeds for these first telegraph cables were 12 words per minute which increased exponentially to 200 words per minute by the 1920’s. The invention of the telephone expanded the reliance on these transcontinental cables. From the beginning of the 1950’s until the late 1960’s underwater coaxial cables dominated intercontinental voice communications.
It was the invention of satellite systems during the 1970’s which greatly reduced the reliance on subsea cables for use in communication technologies. Although the satellite systems dominated the telecommunications world for more than a decade, they were soon replaced by the invention of fiber-optic cables. Fiber-optic cables were more capacious in carrying vast amounts of data and signals as compared to coaxial cables of the bygone days. The first fiber-optic cable was laid down in the year 1986. As of 2019, there are 241 active and distinct fiber-optic subsea cables which are mapping a length of 1.1 million kilometers (km) of the seabed. One writer points out the dominance of undersea cables over satellites by the fact that if they were to stop transmitting then “only 7% of the total United States data traffic volume could be carried by satellite”.
Global Significance & Issue of “Materiality”
Subsea cables are a crucial part of the digital economy, making flows and exchanges of data possible. Astonishingly, they are considered to be intangible, immaterial and un-territorial under the international legal framework. It is understandable that an average person using the internet is unaware about the physical aspect of data transmission. However, International law and its supremacy is founded upon physical objects and materiality. International law experts are now increasingly engaging in such a method of analysis as compared to archetypical theoretical frameworks. Hohmann and Joyce explain that “in revealing the deep entanglements of international law and the material things around us, we can begin to understand how international law structures and disciplines its subjects—and sets the contours for the possibilities and limits of our lives—through objects.”
It is absolutely imperative that International law recognizes the physicality of undersea cables which are now deeply intertwined with the social, economic, legal and technological orders of a digital age. International law and its dominance is moulded by the physical infrastructures which are an important factor in the growth of modern digital economies. Undersea cables are now the subject of competition and struggle between both state and non-state actors (e.g developers and corporations). These struggles include title, control, access and territorial sovereignty. All these fall within the ambit of International law, and efforts must be made to enable a fair regulation.
International Legal Framework and Challenges
The protection and security of subsea cables has been the subject matter of at least seven different international conventions between late 19th century and the beginning of 20th century. It all started with “The Convention for the Protection of Submarine Telegraph Cables (1884)” which was inked in Paris. The 1884 convention was applicable in the territorial waters of the signatory states, making the damage of such cables a punishable offense. The primary purpose of this treaty was to encourage the stakeholder States to promulgate domestic legislation protecting these cables.
The World moved on from the Telegraph to the Telephone, but these undersea cables remained of cardinal importance in communication technology. These cables were an agenda topic in the United Nations International Law Commission (ILC) on the law of the sea. In the International Law Conference of the Sea (1958), three articles relevant to the protection of subsea cables were incorporated into the Geneva Convention of the Law of the Sea (1958). It was also agreed that the provisions of the 1958 conventions will not affect any previous treaties (which included the 1884 convention).
In the year 1973, the UN held a third conference to debate upon the law of the seas and this subsequently resulted in the “United Nations Convention on the Law of the Sea, 1982 (UNCLOS)”. This time again, three provisions (Articles 113 to 115) specifically addressed the protection of undersea cables. Unfortunately, neither the 1982 UNCLOS nor its predecessor treaties could correctly envisage the importance of submarine cables to a digital age.
Pursuant to Art. 21 and 113 of the UNCLOS, littoral states have the authority to enact domestic legislation to protect the subsea cables or any other conduit that lay beneath their territorial waters. States are under no obligation to enact such legislation, and for this reason, most of the littoral states have abstained from doing so. Many studies and reviews have found that there exists little or no domestic legislation which criminalizes any damage caused to such cables.
In addition to this, there does not exist a legal regime which could potentially prosecute offenders who damage undersea cables which are located in the high seas. The UNCLOS limits the jurisdictional protection to flag-bearer vessels. This implies that littoral states could prosecute foreign vessels for damaging fiber-optic cables within its territorial waters, but not otherwise. As a result, there exist significant lacunae in the prosecutions of intentional or negligent damage of such important infrastructure. It is clear that the undersea cables are more prone to nefarious designs to disrupt communications by the foreign vessels of adversary states in the high seas. In terms of technological advancements, the data transmission network has moved forward by leaps and bounds. Legally, the International framework has failed to keep up.
In a modern digital world, these hidden subsea cables are a site of politics, power, communication and most importantly contestation. These cables may prima facie be an invisibility. But the real importance of an invisibility lies in the phenomenon it enshrouds. It is about time that International law recognizes that global digital economies are functioning and prospering through a hidden network of key infrastructure which needs better and impenetrable protection.
 Douglas R. Burnett & Lionel Carter, International Submarine Cables and Biodiversity of Areas Beyond National Jurisdiction: The Cloud Beneath the Sea, BRILL RESEARCH PERSPECTIVES IN THE LAW OF THE SEA, 3 (2017).
 Surabhi Ranganathan, The Out-of-Sight Arteries of Globalization, Visualizing Climate and Loss, http://histecon.fas.harvard.edu/climate-loss/lawofthesea/arteries.html
 Lionel Carter & Douglas R. Burnett, Subsea Telecommunications, in ROUTLEDGE HANDBOOK OF OCEAN RESOURCES AND MANAGEMENT, 349, 350 (Hance D. Smith, et al. eds., 2015)
 Stewart Ash, The Development of Submarine Cables, in SUBMARINE CABLES: THE HANDBOOK OF LAW AND POLICY
 Lionel Carter & Douglas R. Burnett, Subsea Telecommunications, in ROUTLEDGE HANDBOOK OF OCEAN RESOURCES AND MANAGEMENT, 349, 350 (Hance D. Smith, et al. eds., 2015)
 Working Group 8 Submarine Cable Routing & Landing, Final Report – Protection of Submarine Cables Through Spatial Separation, THE COMMUNICATIONS SECURITY, RELIABILITY & INTEROPERABILITY COUNCIL IV, 1
 Stephen C. Drew & Alan G. Hopper, Fishing and Submarine Cables: Working Together, International Cable Protection Committee (February 23, 2009) at 8, available at https://www.iscpc.org/publications/
 Territoriality and Intangibility: Transborder Data Flows and National Sovereignty, in Beyond National Sovereignty: International Communication in the 1990s 259 (Kaarle Noerdenstreng & Herbert I. Schiller eds., 1993)
 International Law’s Objects, 2 (Jessie Hohmann & Daniel Joyce eds., 2019).
 Jeremy Page, Kate O’Keeffe & Rob Taylor, America’s Undersea Battle With China for Control of the Global Internet Grid, Wall Street J. (Mar. 12, 2019)
 George Grafton Wilson, The Law of Territorial Waters, 23 AM. J. INT’L. L. 2, 241-380 (Apr 1929)
 Eric Wagner, Submarine cables and protections provided by the law of the sea, 19 MARINE POLICY 2, 127, 135 (Mar. 1995)
 Convention of the High Sea, Apr. 29 1958, 450 U.N.T.S. 11 (codifying this provision at Article 30, excerpted here: “The provisions of this Convention shall not affect conventions or other international agreements already in force, as between States Parties to them.”)
 Robert Beckman, Protecting Submarine Cables from Intentional Damage, in SUBMARINE CABLES: THE
HANDBOOK OF LAW AND POLICY
 UNCLOS (1982), Art. 27
Locating Sustainable Migration Framework in a Globalized World beyond the UNCSR
The traditional understanding of refugee protection and safeguards enshrined in the 1951 UN Convention relating to the Status of Refugees (UNCSR) with its 1967 Additional Protocol has come to a tipping point. The current scenarios of mixed human migration have given a new term that defines the “new refugee” as “migrant” due to the imprecise distinction between refugee and migrant in the wake of enlarging protections and expanded challenges to the refugee interpretation under UNCSR. Today, mixed human migration has become the determinant factor to critically appreciate the experiences, familiar routes, and intentions of refugees and migrants and threats to the protection system in the wake of emerging populist radicalism in the Global North and Global South with equal intensity. Such radical trends are generally backed by the majoritarian political discourse in constitutional democracies. But such revanchist patterns could only be contained by the re-mainstreaming of liberalism in our geopolitical identities.
New Categories in a Globalized World
Thus, the mixed human migration has necessitated the creation of new categories beyond the traditional understanding provided in UNCSR. Historically, the remarkable distinction between “refugee” and “migrant” is based on the institutional recognition of the notion that the refugee enjoys an elevated status in the framework of international law. However, the nation-states and inter-governmental mechanisms attend refugees based on the thresholds of gravity of refugee situations on a particular occasion. Consequently, such arrangements recognize the “refugees” and derecognize the “economic migrant.” However, in reality, it has now become a well-established understanding that such divisions between these categories are difficult to make in a globalized world. Alexander Betts has written about people who flee hostile circumstances and called such flight “survival migration,” especially from unstable nation-states, situations of socioeconomic violations, and climate change-driven displacement that have not yet been recognized as refugees under UNCSR. Unfortunately, there is no political understanding among the UN member states to broaden the limits of the UNCSR definition of a refugee by creating the new protection categories. Therefore, it is imperative in the present scenario to defend the existing “refugee” category, and nation-states strive to extend protection under international human rights treaties to other groups of vulnerable migrants fleeing persecution beyond UNCSR.
Global Compacts on Refugees & Migration
The origin of the Global Compact on Refugees (GCR) and Global Compact on Migration (GCM) is knotty as a global political project. Primarily, in late 2015, the strategy was to conclude and adopt a comprehensive plan of action for Syrian refugees and Mediterranean routes of refugees who have created a refugee crisis in Europe. Therefore, global institutional politics and other multiple reasons paved the way to adopt such a plan of action in January 2016 for organizing an international conference in New York in September 2016 with the mandate to have GCR. Simultaneously, other world institutions also hard-pressed for a similar arrangement called GCM to create equilibrium for proportionate protection. Such segregation was required due to the organizational distribution of business within the UN system. Therefore, the UNHCR (UN High Commissioner for Refugees) was mandated to act upon and implement GCR.
In contrast, Switzerland and Mexico have co-supervised the parallel GCM programme and its modalities for implementation. Though these Global Compacts have common characteristics, gaps, and intersections mainly, there is small space for internally displaced persons (IDPs) and transnational displacement that has not been recognized in the refugee definition. But UNHCR has proposed specific plans for implementing GCM that incorporate significant steps for migrants in vulnerable conditions. As a result, these Global Compacts have been playing relatively different roles as GCR attempts to address the gaps in the UNCSR by ensuring fundamental principles of humanity and international solidarity and strives to implement the principles of burden-and-responsibility-sharing (BARS) for refugee protection, assisting the refugees and supporting the refugee-hosting countries and communities. On the other hand, GCM provides a nascent global migration governance system as a first step. GCM is an intergovernmental agreement brokered by the UN that addresses all dimensions of global migration holistically and comprehensively and confronts the challenges relating to the worldwide movement by strengthening the contribution and engagement of migrants to sustainable development.
The Role of UNHCR & Shifting Global Debate
The position of UNHCR has become challenging as it confronts a multitude of constraints such as cuts in the humanitarian budget by the US, widespread non-compliance with the UNCSR and its Additional Protocol, and the emergence of institutional rivalry with the entry of IOM in the UN system. However, UNHCR has taken a restrained approach and deliberately excluded many parts from the current global debate on GCR, particularly Lego-institutional reforms. The GCR’s Comprehensive Refugee Response Framework (CRRF), Global Refugee Forum (GRF), and a string of Solitary Platforms provide the foundation for the philosophy of change and emplace global arrangement for international cooperation and addressing particular refugee crises. These institutional arrangements in the GCR framework, like CRRF and GRF, stipulate a new development-based and market-driven model of operation with a lot of pragmatism. GCR is an itinerary of actions and actors entrusted to implement the BARS and the entire ambit of modes of contribution on the part of stakeholders. The GCR is a remarkable achievement in its normative and substantive significance and commitments, provided it is executed on the ground. The CRRF has been showing positive results in Ethiopia and Kenya. However, it is the political leadership that has to determine new commitments and promises.
In the present scenario, international institutions require the exceptional and unprecedented capacity to lead collective action based on moral yet pragmatic parleys and diplomacies. World history is a testimony that non-binding intangible and universal commitments of the nation-states incommensurate with the international refugee regime do not serve a significant purpose. At least five to eight years must be demarcated to assess the impact of the Global Compacts on the ground. To do an impact assessment of GCR and GCM along with durable solutions, there are numerous refugee situations like Rohingya refugees in Bangladesh and India, Afghan refugees in Pakistan and Iran, Syrian refugees in Europe, Lebanon and Jordan, Mexican refugees in the US, Somali refugees, Venezuelan refugees in Colombia and Brazil, Afro-Asian refugees in Canada and Tibetan refugees in India. Though the GCM stipulates principles only, it has to evolve its intellectual contours in its initial stages to establish a global migration governance system, and its institutionalization will consume years ahead. However, the GCM is a remarkable achievement that has made migration a head-on agenda item for the UN system.
Global Refugee System: A Critique
Off late, UNHCR has not been innovative and inventive for an expansion of alternatives for refugee protection. It has adopted a guarded approach under which several issues have been put on hold. For long, UNHCR has been avoiding institutional reforms and keeping the refugee definition out of its re-consideration and re-formulation in tune with the current objections by the Global South countries. UNCSR refugee definition is the most significant contention of the Global South countries. It is a Eurocentric formulation and does not cater to the needs of the refugee people from the Global South nation-states. As a whole, the UNCSR regime is regarded as a Global North project imposed on Global South countries. Presently, many UNHCR personnel acquiesce in institutional politics, and the threat has been looming upon them that might jeopardize refugee protection. In such a pessimistic atmosphere, the GCR and CRRF provide a ray of hope for refugee protection. But there would be numerous geostrategic and geopolitical challenges such as the metamorphosis in the thresholds of global world order in terms of the recalibration and transformation of goal-posts of international power politics, the impact of socioeconomic praxis, the emergence of the artificial intelligence in RSD, and immigration procedures, and resurgence of far-right and nihilistic nationalism for minorities, and LGBTQI groups worldwide. Therefore, UNHCR has to continue to adapt to the changing circumstances, particularly by developing and re-crafting its capability for political leadership along with the existing humanitarian leadership in the context of global restrictionism.
Mixed Migration: A Divide between Principles and Pragmatics
The normative understanding of refugee protection and their human rights must not be sandwiched between principles and pragmatics of the regulatory approach. It is the cause of refugee protection that must alone prevail in global institutional priorities, intergovernmental primacies, and political urgencies in any given situation. But the divide between principles and pragmatics of refugee protection has been increasingly widening at an unprecedented scale that has made the UNCSR partially irrelevant, and several governments do not feel embarrassed with their public apathy towards refugees. Even though, immigration has squarely benefited and enriched the host countries of the Global North by building societies based on multiculturalism, pluralism, and cosmopolitanism. However, the political advocacy of right-wing nationalism in Australia, Canada, Europe, the US, South Asia, South-East Asia, and elsewhere conveys that the Global North has been incriminating immigration in the name of pragmatism by undermining the principles of migration.
The far-right nationalism breeds backlash and xenophobia. There is a need to repulse the anti-immigration surge. Global migration is, prima facie, not an immigration narrative alone; instead, it is, predominantly, impregnated with refugee dimensions that have to be dealt with under UNCSR and GCR instead of restrictive immigration laws. Because when immigration law stops, refugee law begins. Immigration law is based on nationalism, and refugee law is based on globalism. The global principles of the rule of law must comport with secular democracy, inclusive human rights, and liberal pluralism. These principles must get the support of the electorates in all geopolitical entities across the world. Such steps will guard these principles from far-right-wing politicians who are hell-bent on eroding universal liberal values. Therefore, the international community must reconcile the idea of liberal internationalism with the notion of secular democracy; otherwise, humanity would not be able to defeat the resurgent Frankenstein of international politics.
Global Public Perception & Sustainable Migration Framework
The global public perception suffers from the fear and impact of the increasing population of refugees and migrants, and Global North countries are reluctant to host them. There are 84 million displaced people worldwide, and out of them, 26.6 million are refugees (as of mid-2021). However, the challenge is greater geographical concentration as 85% of refugees live in low and middle-income countries, and 60% are present in just ten countries. Meanwhile, global migration trends have been mostly steady in terms of proportion to the global population since the 1970s, although the statistics of the people have increased from 70 million to 240 million. However, the refugee crisis has never been a crisis of statistical data; rather, it is the crisis of international politics and trust deficit among the comity of nations. The people of Global North countries are skeptical and fearful of socio-cultural transformation due to the triggering of structural changes with the arrival of refugees. Such changes cause the loss of low-skilled manufacturing jobs, starting of the politics of austerity, and politics-driven campaigns by the far-right-wing politicians in the host countries. In such a situation, the global community must develop a sustainable migration framework based on migrants-oriented policies that address both host and transit countries in equal measures.
One of the biggest challenges in the current world order is reconciling democracy with globalization in the wake of anti-migrant populism in Global North and Global South countries with equal far-right ferocity? It is, indeed, a significant challenge to preserve the optimism in the present world where electoral choices are expressed with technology, and sovereign citizens demand the re- endorsement and re-statement of national sovereignty in all its manifestations. Therefore, such integration of democracy and globalization needs a substantial amount of creativity that includes a new perception about normal human mobility and forced migration. Such optimism needs farsighted global governance supported by institutions and subsidiary organizations of the UNO, regional and other inter-governmental organizations. However, such a possibility right now is absent due to the international orders increasingly becoming more and more obstructive and deterring human mobility. There is a need to have collective measures to address the problem of the exodus of hybrid migration resulting in a backlash in the destination countries. It further jeopardizes the lives of people taking strenuous and frantic travels in search of safer refuge. Such reckless journeys become the cause of mushrooming of criminal syndicates indulging in human trafficking and criminalizing migration networks that mount a massive burden upon the capabilities of refugee-hosting countries while chipping away the thresholds of refugee safety.
On the basis of our cumulative experiences, there is a need to re-imagine the innovative and inventive refugee protection proscenium to respond to grisly human migration in all continents and countries. But it must not be devoid of the principles of Global Human Rights Constitutionalism, and it must discard the discourse of popular nationalism that is anarchist, narcissist, nihilist, and exclusionary in its treatment of RAMS (refugees, asylum-seekers, migrants, stateless). The current Globalized World needs the re-validation and re-assertion of diversity, dignity, multiculturalism and liberal values of the yore. It is an age requiring arrangements for integrating the contesting and opposing interests across the political spectrum in all geopolitical enties. Such measures demand audacious actions, quixotic visions and re-embracing of human rights liberalism beyond the rubrics of UNCSR.
UNCTAD Report: Revisiting Old Issues in Managing Cross-Border Data Flows
Today, information space has become a field of confrontation involving major digital platforms, governments, societies and individual users. Stories featuring latest cyberattacks or state-sponsored attempts to limit the influence of social networks and regulate the digital sphere, where there is no governance at the international level, are those that grab the headlines of many online media outlets.
Given the current climate, it is then no surprise that the United Nations is paying close attention to the issues related to the digital domain. On September 29, United Nations Conference on Trade and Development released its Digital Economy Report 2021, which focuses on the issue of managing cross-border data flows. The piece is rather comprehensive in terms of the issues covered, seeking to analyze the inhibiting factors that prevent us from working out an exhaustive definition of what “data” is, while exploring the specific approaches of states to regulating cross-border data flows. The report’s authors pay particular attention to the digital divide that has emerged between developed and developing nations. That said, we would argue that the report is more of a descriptive paper rather than a real step towards erecting a system of global governance.
The first section of the report addresses the lack of clarity on the definition of “data”, whether in research or among practitioners. With no unified terminology, communication between stakeholders appears to be complicated, much as the process of designing public policy as regards the digital sphere. A generally accepted and unified terminology would no doubt make it easier to foster closer cooperation, although this is certainly not a defining prerequisite. International efforts to fight against terrorism can be a case in point here, as there is no conventional definition of “terrorism,” while this does not hinder inter-state cooperation, both regionally and globally. While this cooperation may not always proceed smoothly, any problems encountered tend to be the upshot of political squabbles rather than the implications of the fact that no single definition of “terrorism” is to be found.
The UNCTAD report brings up another underlying premise, which is that data should be treated as a global public good. This will allow citizens, acting as “producers” of raw data, to claim the benefits of it being used by digital platforms. This issue has already been discussed at the EU, with the approach tested in a number of cities. Transferring some control over the flow of data from corporations to users is an important step towards ensuring that human rights are upheld in the digital environment.
The UNCTAD report also explores the technological and digital divide, whose dimensions span developed and developing countries as well as urban and rural areas within a particular country. This problem is nothing new: it was only last year when UN Secretary-General António Guterres referred to the need to bridge the gap, arguing that it was instead widening amid the COVID-19 pandemic. At the same time, he proposed a Roadmap for Digital Cooperation.
Besides, the report notes the massive impact of digital platforms. These, the authors believe, “are no longer just digital platforms” but “global digital corporations” that have the necessary capabilities for processing information, which puts them in a privileged position. Further, digital platforms are able to influence policymaking through lobbying their interests. In terms of spending, Facebook and Amazon are the most active lobbyists in the United States, while Google, Facebook and Microsoft are the biggest spenders in Europe. The report suggests that the privileged position of digital corporations—such as their ability to process massive bulks of data and derive profit from raw information—leads to something of an imbalance between the private and the public sectors when it comes to recruiting talent. Accordingly, the gap is widening, which means that the tech giants are moving even further out in front.
Finally, fragmentation of the digital space into competing models of managing cross-border data flows is another challenge to the digital domain and its prospects. Should such fragmentation occur, this may create new obstacles to communication and economic development, as the existing models (those of the U.S., the EU, Russia, China and India) offer different regulatory practices that have their own flaws and inefficiencies. The report identifies the broad shortcomings of these practices, making note of poor coordination between government agencies; ambiguous formulations deliberately used to denote key concepts (such as “critical infrastructure” or “digital sovereignty”); and setting unrealistically high technical requirements, including the requirement to store personal data locally—something that entails greater costs for smaller businesses and is detrimental to end consumers of digital products and services.
The Digital Economy Report implies the solution lies in establishing a new institutional framework to meet the challenge of global governance in the digital domain. This new institution should contain the “appropriate mix of multilateral, multi-stakeholder and multidisciplinary engagement.” At the same time, the report argues for ad hoc interaction between stakeholders given the inherent complexity of the framework. The new organization should become a coordinating body for digital governance with a sound mandate.
Indeed, the main stumbling block for global governance to emerge in the digital sphere has to do with the model of interaction to be chosen. The epitome of the intergovernmental approach is the International Telecommunications Union (ITU), while the Internet Corporation for Assigned Names and Numbers (ICANN) is illustrative of the multi-stakeholder approach.
Since neither is perfect, this naturally leads us to the conclusion that a combined approach is what is needed. This approach can possibly provide states with a much-needed platform for broader involvement in issues of digital governance, while ensuring that non-state actors and expert community retain their positions. The UNCTAD report refers to the United Nations Economic and Social Council (ECOSOC) as a perfect example of such a “hybrid” international organization. At ECOSOC, interaction with NGOs takes place through the Conference of Non-Governmental Organizations in Consultative Relationship with the United Nations. Expert bodies made up of representatives of individual countries as well as of independent experts also operate within the framework of ECOSOC.
Indeed, ECOSOC is a good example of how international institutions can interact with NGOs. However, it will not do to simply copy its mechanism, and it is so for several reasons. First, final recommendations within ECOSOC are adopted by representatives of member states. This harms its usefulness as a model to be replicated, since there will always be the risk that issues are politicized—this will be the case even if the new institution is designed with the combined approach in mind. Besides, should this body take on the role of the principal coordinator in the digital space, issues will become more politicized and disagreements will be more heated, thus slowing down decision-making. Second, the question remains as to how the new institution will interact with the existing organizations, namely the Internet Architecture Board and the Internet Engineering Task Force. The ad hoc mechanism to engage NGOs in other areas, which works perfectly fine for ECOSOC, may not be enough when it comes to technical standards that need to be constantly updated. Third, the General Assembly elects ECOSOC members every three years. However, this would not be feasible for the new coordinating body as the digital domain has its own leaders, and leaving them overboard would be incredibly detrimental to its effectiveness. In such a case, there remains the above-mentioned risk of discussions between the U.S./EU and Russia/China becoming politicized.
Moreover, the choice of decision-making mechanism presents certain difficulties given the dominant position of the four, both on the international stage and in terms of data processing. Operating on the basis of consensus may hinder negotiations or become an instrument to block unwanted decisions, while a simple majority will likely result in these nations establishing ad hoc coalitions to try and swing votes in their favour. Therefore, it seems prudent to design a complex voting mechanism based on qualified majority, possibly drawing on the system used in the Council of the European Union. Still, this mechanism will not rule out struggles unfolding behind the scenes.
Finally, the fact that the two sides have fundamental disagreements as to the concept of sovereignty in the digital space should be accounted for, as this could put an end to the new coordinating institution before it has even been established. The only way to move forward with a truly effective platform for cooperation in the digital space is to temporarily improve, if not to normalize, the relations between the leading states in this area.
No global governance in the digital domain is better than a poorly regulated system spinning its wheels. Our modern world is too dependent on technological advances that ensure that all regions and facets of life are complementary. Any failure of the mechanism can be extremely costly. However, increasing fragmentation of the digital space may be even more costly—for developing and developed countries alike. One possible way forward amid the international environment mired in uncertainty is to search for common ground on the most basic of issues. While the differences in national regulations persist, there are a number of issues that are common to all: these include cyberterrorism, cybercrime, illegal access to data or threats to critical infrastructure.
Multilateral agreements that do not address the fundamental differences in the stances taken by states may lay the foundation for global governance to emerge in the future. It is in this context that the joint U.S.–Russia draft resolution on the responsible behaviour of states in cyberspace, if legally unbinding, bears utter significance for cooperation between nations who espouse two different models as well as for overcoming the negative background of broader political disagreements.
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