During my presentation on jurisdictional issues in cybercrime investigations at the McGill Graduate Conference in Law #2016MGLC in May (themed ‘Legal Challenges in the Cyberspace), I touched upon the point that if internet can be considered a global common, a place where everyone on the planet can equally exploit. This post intend to wade a little further into this topic.
The border-less internet
In February 1996 in Davos, Switzerland, John Barlow made the Declaration of Independence of the Cyberspace. In a rather lurid language, he declares that the ‘Cyberspace’ does not lie within the borders of (democratic) Governments. He treats internet as “an act of nature” that “grows itself through our collective actions.” This declaration is a reflection of the age-old notion of treating the internet as ‘wild-west’ when it first came about. A place where no laws exist and people are free to roam and do whatever they desire. However, given the developments that has significantly altered the cyberspace since it became more than a military network, it is no longer possible to treat the internet as having an existence in the outskirts of the regulatory realm.
What the Declaration essentially suggest is that internet is a phenomena that is an act of nature that paradoxically depend on human activity for growth. The significance of this claim and the basis of most legal scholars on this topic is that internet qualifies as a ‘Global Common.’ Global Common or Common Heritage of Mankind is a jargon found in public international law which refers to attempts by the UN to protect natural and cultural resources that is not subject to the sovereignty of any nation.
So why should understanding the nature of internet matters? It matters because internet has a global reach, a platform where citizens of different nations interact. Despite the bold attempt to treat the internet beyond the reach of governments, States are increasingly trying to demarcate borders within the cyberspace. Therefore investigating if internet is indeed a global common space, akin to the outer space or the high seas, would elevate much of the dilemma that surround the question of regulating the internet.
Generally, the high-seas (area of the sea beyond the Exclusive Economic Zone), polar regions, outer space, trans-boundary water resources are examples of common heritage or global commons. The law that governs the use of these resources cannot be traced back to a specific customary international law norm. It is an inherently vague doctrine and apart from the doctrine of res communes which refers to community property in Latin, there is no deciding criteria for global commons. Nevertheless, by looking at the development of international law in this context, various characteristics can be identified.
- Firstly, the existence of an international treaty or agreement.
- Secondly, existence of a liberal monitoring system.
The following sections will briefly outline the legal principles governing the law of the sea and outer-space. Thereafter I will try to ascertain if any analogy can be drawn between them and the internet and if not why. So let’s begin!
The law of the sea
The international law that governs the sea is primarily based on an UN treaty, the United Nations Convention on Law of the Sea or UNCLOS which came into effect in 1994. This convention make clear boundaries as to what is within the territorial limits of a country and what is not. Although I will not go into detail on this point, it is sufficient for the purpose for our discussion to understand that the lines are drawn over the ocean based on nautical miles starting from the baseline and are divided into different zones. Whatever is left outside these boundaries is categorised as the high seas. However, the doctrine of ‘right of innocent passage’ ensures that merchant ships (and not warships) will be allowed to pass without any obstacle through the territorial waters thanks to Article 14 of the Convention on the Territorial Sea of 1958. The law governing the Polar Regions and the Antarctica in particular, share similar regulatory platform as stipulated by the Antarctic Treaty. Determining the jurisdiction on the high-sea depend on the nationality of the ship or other vessel in dispute. This nationality can only be established if a direct link can be established between the vessel in question and the State while an exception to this rule is piracy.
The law of the outer-space
The outer-space is similarly governed by the UN’s Outer Space Treaty of 1967 which came about around the time space exploration was gaining momentum. Article 1 of this Treaty states that exploration shall be carried out for the benefit and interest of all countries and will be treated as a common province of all mankind. This ensured freedom to explore and utilise any part of the outer-space which included moon and other celestial objects. One of the common uses of outer-space is the installation of satellites which facilitate telecommunication needs of the world population. This network is principally governed by the INTELSAT and its corresponding agreement. Their regulation is often complimented on sector-basis (radio spectrum in particular) by the International Telecommunication Union (ITU).
However, outer-space should be confused with airspace. The latter refers to the atmosphere where states can exercise territorial jurisdiction. This jurisdictional limits are drawn horizontally parallel to the Earth’s surface, and correspond to the limits of territorial waters. However, there is no decided vertical limit. That is to say there is no fixed rule stipulating where airspace ends and outer-space begins. Some scholars argue that the airspace extends as high as an aircraft can travel. While this is a valid argument, it is limited in the face of developing technology resulting in flying-objects like drones being able to fly higher than the altitude of a commercial planes. The Treaty stipulate a code-of-conduct to regulate all space activity which includes demilitarisation or engage any conduct that has detrimental value. The UN maintains a registry of all space-crafts launched and the treaty imputes state responsibility on all matters of space activity whether State sponsored or not.
On both legal regime the core principle is that these resources are open to be used freely without prohibition. The resource concerned are natural and survive without human intervention. There is an overarching regulatory body that navigate the use of these resources based on agreed terms of an international treaty. So can internet be treated just like that? Let’s see.
When it’s neither here nor there.
Accordingly, internet mimics certain characteristics similar to global commons. For starters, like the high seas and the outer-space, it is a resource open to be used by any country (provided they have the corresponding infrastructure installed). It is a resource equally accessible to anyone (again provided rules of net-neutrality are not altered). And most fundamentally of all, there is no one country that claim jurisdiction over the entirety of the internet.
So does that mean, internet is in fact a global common? I’m afraid it is not. I will summarise my reasons as follows;
- Not all resources are open to be used freely to everyone – States have the authority and capability to control what content its citizens can access over the internet.
- Internet is not a natural resource. It is an invention of humans and relies heavily on human intervention in infrastructure to survive.
- There is no singular regulatory body that make rules for the use or liabilities arising within the internet. The existing bodies such as the Internet Corporation for Assigned Names and Numbers (ICANN), Internet Assigned Numbers Authority (IANA) or ITU, who mostly regulate the technical aspect of the internet (such as assigning IP addresses, Domain names etc.) as opposed to rule on the jurisdiction or state liabilities.
- States claim jurisdiction over whatever internet infrastructure that is located within their own countries. Thereby claims jurisdiction over the use of such infrastructure in the transmission of data and commission of any cybercrime through the utilities based in one’s country.
Therefore, these peculiar traits makes it academically and practically difficult to place internet entirely within the ambit of a global common. Thus, to resolve jurisdictional issues, it is necessary that internet regulation to be treated sui generis instead of attempting to equate it to existing elements of the non-digital sphere. Though, internet remains for the large part free for use, it may not be wise to suggest that internet is “a world that is both everywhere and nowhere, but it is not where bodies live”.
 His reference to Governments is specific to democratic regimes as implied by “Governments derive their just powers from the consent of the governed”
 Simply put customary international law refer to legal principles that can be attributed to consistent practice by States based on the belief that the law requires them to act accordingly.
 M. Shaw, Public International Law 333, 7th ed. (2008)
 M. Shaw, Public International Law 349, 7th ed. (2008)