Internet Governance Fragmentation and the Crisis of the Information Commons: A Treaty Law Perspective

The emergence of electronic infrastructure governance in its current form, which is controlled by the state—a phenomenon that legal scholars have termed the ‘fragmented internet,’ to describe the gradual fragmentation of a single, globally interconnected internet into distinct, nationally or regionally fragmented networks, each subject to differing legal and technical standards—poses a significant challenge to international law. There has been a gradual fragmentation of a single, interconnected global internet into networks at the national (local) or regional level, each subject to different legal and technical standards. This development has been confirmed by state practice: non-western states, principally Russia and China have called for tighter state control in the form of a cyber sovereignty concept, while states in the West (e.g. USA and EU Member States) have called for an open and globalised internet based on an inclusive multistakeholderism and cooperation approach.

However, this fragmented model of cyber sovereignty creates a conflict with certain state obligations under other international legal regimes. Russia, as a ratifying State Party, is directly bound by the obligations of the International Covenant on Civil and Political Rights (ICCPR). China, which has signed but not ratified the International ICCPR, is bound only by the obligation of good faith set out in Article 18 of the Vienna Convention on the Law of Treaties, which stipulates that the object and purpose of the treaty must not be frustrated. Both States, as members of the World Trade Organisation (WTO), remain fully bound by their obligations under the General Agreement on Trade in Services (GATS).

The laws that currently govern cyberspace are insufficient to address the fragmentation of the internet caused by states competing for cyber sovereignty, particularly when such claims conflict with obligations under international trade law and human rights law. Consequently, the existing legal framework for regulating cyberspace is characterized by an unresolved tension between international law concepts of state sovereignty and human rights.

Russia’s Runet: Sovereignty through Control of Digital Infrastructure

The infrastructure logic driving fragmentation is embodied in Russia’s sovereignty framework in which digital sovereignty was codified in legislation establishing the “sovereign internet” (RuNet). RuNet focuses on autonomy-driven security. The Russian position to keep traffic within its geographical borders is based on economic risks rather than focusing on transit costs: the chairman of the Duma committee, Leonid Levin, argued that losing internet access for one day would cost the Russian economy about 20 billion rubles ($311 million), a figure used to justify the cost of implementing the law itself, which is about 30 billion Russian rubles. Russia’s push for pre-installation of software to be used for tracking, filtering, and rerouting traffic can be understood in terms of information security, the security of the critical national infrastructure, and promoting the domestic R&D industry.

One of the fundamental problems with this model is that it conflicts with the international obligations that Russia has already undertaken. For example, as a State Party to the ICCPR, its requirements regarding data localization and data traffic rerouting raise numerous questions under Articles 17 and 19. Freedom of expression is one of the most fundamental rights under Article 19 of the ICCPR, and in some circumstances is considered close to a norm of jus cogens (peremptory norms of international law), enjoying robust protection via national and international enforcement mechanisms.  Thus, Russia’s infrastructure-centric control model, which facilitates centralized filtering of content and blocks access to protected material, especially political speech, is arguably an example of a state restricting an individual’s right to free expression. As a member of the WTO, similar requirements could also affect its obligations under the GATS on cross-border data and communications services.

China’s Great Firewall: Digital Control and Trade Obligations

China’s unique governmental system has led to legal and governmental friction over control of the internet and cyberspace. Chinese authorities manage the internet through the technical filtering of the Great Firewall and enforced through cyber policing.  It can be argued that China’s data localization requirements under Article 37 of the Chinese Cybersecurity Law violates its obligations regarding national treatment and market access because under the GATS, by requiring continued operation upon transfer to a local joint venture—as in the Apple iCloud/Guizhou case—foreign suppliers face competition conditions and legal entity compliance requirements that domestic suppliers do not face.

The GATS contains two separate exceptions. Article 14, under the heading “General Exceptions,” allows for measures necessary to maintain public order or protect public morals, among other reasons, provided they pass the “necessity test” and are preceded by a prohibition against unjustified or arbitrary discrimination. Article 14 bis (Security Exceptions) allows for measures a member deems necessary to protect its essential security interests, including non-disclosure of trade in arms or sensitive information and measures related to obligations under the UN Charter. Unlike Article 14, the phrase “deems necessary” in Article 14 bis has traditionally been considered a form of self-regulation, although the WTO panel in the Russia-Transit Traffic case (2019) held that the “emergency situation in international relations” section of the corresponding Article 21 in the GATS was subject to substantive, not procedural, review.

Furthermore, cyber sovereignty measures such as data localization and digital censorship undermine the key tenets of non-discrimination and market access. Data localisation requirements under Article 37 of China’s Cybersecurity Law, such as the mandate for Chinese Apple iClouds may violate national treatment. They will be extremely challenging to justify under the tests for necessity and the least restrictive measure. This raises the legal question as to whether national security reasons can be accepted as sufficient justification to restrict treaty-embedded information flows.

Fragmentation from within Liberal Democracies

It is important to note, that non-democratic or illiberal states are not the sole drivers of internet fragmentation. Liberal democratic laws can also be a source of internet fragmentation. For instance, the American model—reflected in Section 230 of the U.S. Communications Decency Act (47 U.S.C. § 230)—provides a safe haven, encourages the prevention of adverse effects on free speech and content moderation, and reduces legal barriers for digital innovators but also includes rules for content moderation and sectoral data localization rules. Liberal democracies also contribute to internet fragmentation through seemingly neutral regulatory mechanisms. Western democracies have often invoked the idea of ​​an open and free internet, while simultaneously advocating policies that undermine this goal. In this sense, regulatory fragmentation occurs when resources, infrastructure, standards, services, or information that would otherwise operate across a common global internet become divided along national or regional lines.

Fragmentation at the user experience and governance levels is not the exclusive domain of digital authoritarianism. It is already a widely accepted feature in liberal democracies, to a limited extent, where Germany’s NetzDG content control law, the EU’s GDPR data protection framework, and US Section 230 platform regulations impose disparate national standards on global platforms, creating regulatory inconsistency. A systematic review supports the conclusion that the fragmentation of the internet is driven by competition among major powers for cyber sovereignty, and not just by authoritarian regimes.  Thus, liberal states, even if using seemingly neutral regulatory language, play a significant role in the fragmentation of the shared global information space.

Ethical concerns—particularly regarding privacy and algorithmic bias in automated decision-making—have been exploited by some countries to justify protectionist or restrictive digital policies. The deliberate ambiguity in these regulatory frameworks grants broad discretionary powers to local and national regulators. This discretion disproportionately exacerbates structural inequalities between developed and developing countries. For countries of the Global South, which lack the economic leverage and legal expertise to effectively address these challenges, such measures effectively become barriers to participation in the digital market.

Legal Remedies: Institutional Deficits and Future Directions

The preceding analysis reveals a fundamental deficiency in the current international legal framework governing cyberspace. Existing treaty obligations—under the ICCPR, the International Telecommunication Union (ITU) framework, and the GATS—suffer from three interconnected shortcomings.

First, the ICCPR lacks implementation and specificity. While Articles 17 and 19 provide strong normative safeguards for privacy and freedom of expression, the ICCPR offers no detailed guidance on how these rights should be enforced against data localization, internet shutdowns, or content filtering imposed by states. Furthermore, the Human Rights Committee’s oversight is limited to non-binding general comments and individual opinions, which lack enforcement mechanisms—and states routinely disregard adverse findings with impunity.

Second, the GATS framework is ill-suited to digital trade. The GATS was established in the early 1990s, when cross-border data flows and digital platforms were not yet considered central to global trade. Its rules on market access (Article 16) and national treatment (Article 17) are now outdated. Article 17 of the Agreement is vague in its application to data localization requirements. The exceptions provisions, particularly the security exception under Article 14 bis, are so broadly worded that states can invoke them to justify almost any action, making effective legal scrutiny virtually impossible. The paralysis of the WTO Appellate Body further exacerbates this problem, leaving disputes in a state of perpetual or continuous stalemate.

Third, the ITU Constitution allows for technical coordination, not substantive regulation. The ITU’s authority is focused on spectrum allocation and technical standards, not on data management, content regulation, or human rights in cyberspace. The member-based consensus model has proven incapable of establishing binding rules on contentious issues that fragment the Internet.

To address these shortcomings, a treaty law governing digital services and cross-border data flows must be developed. This development could proceed along two possible paths. The first is negotiating a new protocol to GATS or the Constitution of the ITU, specifically regulating digital services, data localization, and cross-border content. The second path is a dedicated international agreement on states’ obligations in cyberspace, codifying binding rules on cross-border data flows and localization, content monitoring, and the enforcement of digital rights. This agreement should also establish a dispute settlement mechanism to address the enforcement gaps currently plaguing human rights and trade regimes. Without this normative development, the internet will become increasingly fragmented, divergent standards will be reinforced, and the global information commons will remain fragmented, harming freedom of expression, economic opportunities, and international cooperation.

Citizens affected by the digital fragmentation of the internet face limited options for redress. The UN Human Rights Committee may receive complaints under the Optional Protocol to the International Covenant on Civil and Political Rights, but its opinions are not binding and lack effective enforcement mechanisms. The WTO’s dispute settlement system has been paralyzed since December 2019, when the United States blocked appointments to the Appellate Body, creating a legal vacuum in the appeals process and undermining the enforcement of trade judgments within the system. Meanwhile, international courts remain subject to the principle of territorial jurisdiction: their jurisdiction is conditional on the consent of the state, whether through treaty provisions, special agreements, or voluntary declarations, meaning that access to justice depends on the respondent state’s willingness to submit to the court’s authority.

Implications for the Global Information Commons

The global information commons are based on the international legal principle of the common heritage of mankind, a principle traditionally applied to Antarctica, the high seas, and outer space. This principle stipulates that these shared spaces should be used exclusively for peaceful purposes and managed for the benefit of all humanity. Cyberspace has long been likened to these physical commons due to its global interconnectedness and decentralized structure. However, with increasing fragmentation, this unified commons is eroding into a plurality of digital territories with defined national and geographic boundaries, each subject to distinct sovereign regulatory frameworks.

In the absence of international consensus on the governance of the fragmented internet, both illiberal regimes (such as Russia and China) and liberal democracies (such as the United States and the European Union) are pursuing competing digital sovereignty agendas with limited accountability. The prospect of restoring the global information commons hinges on the ability of these diverse and influential actors to reconcile their domestic regulatory priorities with the need for binding international rules through multilateral cooperative frameworks.

Conclusion

The fragmentation of the internet undermines international law regarding the regulation of information flows. Various national strategies—from the Russian Internet Network (RuNet) and the Great Firewall of China to US platform regulations—raise serious concerns under Article 19 of the ICCPR. However, international law does not provide an effective way to address this fragmentation of the internet.

To rebuild the shared global information space, international law must be developed to establish binding international rules that define how states organize their national or internal digital infrastructure, as well as international bodies capable of enforcing and implementing them. While some states, notably Russia and China, adopt a vision of cyber sovereignty that claims near-absolute control over their digital spaces, such claims are legally problematic under international law. Sovereignty has never been absolute; all digital activities must comply with the human rights obligations that states have voluntarily undertaken. International legal reform at this point could proceed along three interconnected axes: first, the mainstreaming and codification of digital rights; second, the adoption of an international charter or declaration on human rights in the digital age; and third, the establishment of sectoral frameworks for critical areas, including cybersecurity, where digital technologies pose new governance challenges for states.

These are the key challenges in developing digital human rights: the right to digital security, the right to internet access, and the right to the protection and independence of personal data. Unless these rights are guaranteed, the fragmentation of the internet will continue, further eroding shared global information resources and thus undermining the shared digital space upon which freedom of expression, international cooperation, and economic opportunities depend.