International inviolability for the root zone?
Updated on 07 August 2022
Management of the root zone has been one of the most controversial issues in the Internet governance debate. Since the first days of the World Summit of Information Society (WSIS) back in 2002, the theoretical possibility of removing other countries form the Internet – by deleting the country’s domain name from the Internet – has inspired many countries to criticise the USA’s key role in the management of the root zone database. Over the last 11 years, thousands of person-hours have been spent in discussing the root zone issue in Internet governance meetings worldwide.
What are the facts? The USA has never used this technical possibility to remove a country from the Internet (the US DoC authorizes ICANN via an IANA contract, to manage the root zone). In addition, even if the USA makes this move in the future, it will have little impact, since the Domain Name System (DNS) is robust and decentralized enough to sustain any changes in the root zone file, at least in the short term perspective.
On both sides of the discussion, the root zone question has mainly symbolic relevance.  On the US side, although the USA cannot use it as a tool in power politics, the Internet has high symbolic value, especially in the US Congress, as a US invention whose governance should not be carried out by foreign governments and international organisations.
Although there are no substantial risks for national internets to be affected by the US management of the root zone, most other countries argue that the Internet as a global infrastructure should be managed by an international organisation which is not under the control or jurisdiction of any single country. This argument is often framed as a question of sovereign equality, and fairness in international relations.
Use a diplomatic law approach to solve the policy problem of the root zone
The predominantly symbolic relevance of the root zone issue has created the basis for an analogy with diplomatic law, which deals with another highly symbolic issue: the representation of countries. It includes diplomatic precedence, the protection of diplomatic buildings, and the main functions of representation. How can the regulation of symbolic aspects of diplomatic relations help in regulating the symbolic aspects of Internet politics? Here are two possibilities:
The first possibility could be described as a physical one, making the server and root database inviolable, in particular from any national jurisdiction. This possibility opens the question of where the root server would be located. It could be located at the UN premises in New York and Geneva, which would simplify matters, since those entities already enjoy inviolability, including immunity from any national jurisdiction. Another option, such as continuing to use the current location would require changes in the US national law, in order to ensure international inviolability of the root database. One could also consider assigning root zone file immunity as part of an ICANN+ arrangement (making ICANN a quasi-international organisation – discussed further down in the text). 
The second possibility, which is a virtual one: the root database should be assigned inviolability per se, wherever it is located. This solution is based on the analogy with diplomatic law which specifies that ‘[t]he archives and documents of the mission shall be inviolable at any time and wherever they may be.’ (i.e. article 24 of the Vienna Convention on Diplomatic Relations).
In this way, the root database could enjoy inviolability according to international law. Neither the USA, nor any other authority, could interfere with the root database without necessary authorization. This could be the first phase in the policy process, which would build trust, and prepare for the second phase, which has to deal with the more difficult question:
Who will have the right to amend the root database?
Here we go back to the question of decision-making process and the status of ICANN. This has been exhaustively discussed, and it is clear that a workable solution should be based on a high level of inclusion, transparency, and checks and balances. As a practical solution for the root zone file, one might think of a double key system, involving a strengthened ICANN, with a stronger role for the Governmental Advisory Committee (GAC), to some extent codifying and formalizing what has already been happening through the growing relevance of the GAC. A possible role for a reformed UN Trusteeship Council could also be considered, as one of the actors in this checks and balances system.
ICANN’s new quasi-international status, for example, following Swiss laws, could address most of the above-mentioned points. Shifting ICANN from the national to the international level, would require ensuring ICANN’s accountability to consumers, users, and the Internet industry. Immunity should not be impunity. Again, here we could have a solution in the interplay between international public law and private law options.
How to achieve the new root zone arrangement?
The closest analogy is the governance of the Red Cross system. Analogous to the Geneva conventions in the humanitarian field, ‘a root convention’ would minimally grant immunity to the root database, and maximally specify how the root database would be managed. If the adoption of a root zone file convention would be too complex, one might consider an advisory opinion of the International Court of Justice, which could recognize the ‘instant’ customary law (practice of the US government of not interfering in countries’ domain names without the consent of these countries). Either a convention or instant customary law would provide a functional basis for ICANN, which could be a quasi-international organisation, with a carefully designed checks and balances approach, and a prominent role for the GAC. Such an ICANN+ would both host the root server, and manage the root database.
There are some other solutions and possibilities. The bottom line is that there is a solution that could be both practical and legal. The symbolic issue of the root zone, at least, could be put to rest, and allow us to spend our policy energy on more practical and relevant issues. It could be also be a reasonable, practical, and acceptable compromise.
 The USA’s jurisdiction over the root database is often quoted as the source of US power over the Internet. However, this is not real power, since it cannot be used. The element of power is in forcing the other side to act in the way the holder of the power wants. The power over the root zone has not been, and cannot be used in this way. On the contrary, a potential use of this power could create unintended consequences, including the disintegration of the Internet into national and regional internets, which could be particularly detrimental for US interests (Internet industry, English as the Internet lingua franca, etc.).
The limited relevance of the root zone for international politics is illustrated by the fact that the USA has not used its privileged status in the management of the root zone, even in the situation when it has had the legal possibility to do so (article 41of the UN Charter specifies that sanctions may include ‘complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations’. The possibility of ‘deleting a country from the Internet’ or cutting Internet links was not used in any of the main international conflicts or sanctons regimes, from the Balkans in 1990s till the recent one in Syria.
 Apart from the symbolic relevance, the only real concern is the possibility of using legal action against ICANN, as a US-based entity, on the basis of the US sanctions law, to request the removal of countries included in the sanction regime, from the root database. Again, this practice has never been used. As a matter of fact, on the basis of constant practice by the USA, one can argue that there is an ‘instant customary law’ on the inviolability of the root database (more on this further down).
 Diplomatic law is based on the concept of functional necessity (e.g. granting immunity for the performance of diplomatic function) and representation.
 Our discussion on the fringes of the Addis meeting, especially during informal receptions, went into some creative ideas, such as locating the root zone file server in Aksum, the historical city in the north of Ethiopia, where – according to the legend – the ‘Arc of the Covenant’ is located.
With the exception of
With the exception of footnote 4, this is a good and thought provoking article. It should be more widely known.