by Devansh Kaushik 3 February 2021
“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”
The above words quote from John Barlow’s iconic 1996 paper – “A Declaration of the Independence of Cyberspace.”[i] It marked the beginning of a new perspective of viewing cyberspace as a distinct domain, independent of state sovereignty or control.
In simple terms, “Cyberspace” can be defined as a national environment in which communication over computer networks occurs. While the Internet is a major component of Cyberspace, the terms are not interchangeable. It also encompasses all types of telecom and network technologies and connected hardware.
Cyberspace is the foundation of the entire Digital Economy, which is estimated to account for up to 15.5% of the world’s GDP and expand fast as the Fourth Industry Revolution occurs.[ii] In the modern world, Cyberspace acts as an essential resource for countries and private parties alike, hosting a range of business and government services. Critical infrastructure such as defence, utilities, communication, transport, industrial production depends on it.
On the other hand, “Global Commons” is defined as “natural assets outside national jurisdictions such as the oceans, atmosphere. outer space and the Antarctic”. They are resource domains to which all nations have legal access.[iii] They are not under the control of a particular state but are open for use by all countries, organizations, and individuals.
The reasons these exceptions to the usual state territorial sovereignty principle usually exist are – first, countries lack the capacity to realistically govern and exercise control over these inaccessible or otherwise ubiquitous domains by themselves; second, multiple claims over such domains have the potential to spark off international conflict; and third, mutual interest of countries in free use and access of these domains.
As of today, all of them are governed by international instruments that regulate their use and ensure free access for all nations of the world. In other words, a global common is not an absence of sovereignty but rather shared global sovereignty.
In this paper, I seek to examine whether cyberspace qualifies as a global common. From that comparative, I shall examine whether an international regime can be devised drawing inspiration from the pre-existing commons. Towards that end, I shall also examine the applicability of existing theories of management of commons.
A Comparative Study
Cyberspace does have unique characteristics that distinguish it from global commons: it is humanmade; it facilitates the transfer of information and data rather than people and goods, and it is largely owned and managed by the private sector. These differences often make it difficult to transpose traditional theories of commons onto cyberspace. For instance, a fundamental assumption of Garett Hardin’s seminal work “Tragedy of Commons” is a finite world.[iv] However, that is questionable in the context of cyberspace. With technologies such as cloud computing emerging, cyberspace as existing in the virtual sphere is potentially infinite.
But, even apart from independent thinkers like John Barlow, governments worldwide are increasingly receptive to the idea of recognising cyberspace as a global common. There do indeed exist several common features between cyberspace and other recognised global commons. Cyberspace, like the atmosphere, is ubiquitous. It is difficult and practically unfeasible to restrict free access to it. The Internet is based on global non-proprietary standards that anyone can freely adopt. Just as all countries have a mutual interest in free passage across high seas, all countries have the economic interest to allow free transfer of data and services across cyberspace. Like any other global commons, cyberspace has tremendous economic utility and untapped potential, which underscores the need to have a facilitative and non-cumbersome form of governance over it.
Cyberspace is also as prone to misuse as any other global commons. Hackers and non-state actors exist in cyberspace, just like any pirates exist on the high seas. Cyberspace has as much military potential of harming a country’s critical infrastructure and endangering its citizens as do weapons deployed in outer space.
State Sovereignty in Cyberspace
At this point, it is also necessary to engage with the competing theory of ‘state sovereignty in Cyberspace.’ This theory is based on the fact that virtual cyberspace ultimately operates on physical infrastructure in national territories. It is contended that since all the networks and devices that form cyberspace belong to individuals and/or organizations in specific nations, they constitute private property and are subject to national laws. It is thus argued that states can exert control over cyberspace in such a manner and exercise their sovereignty through gateways, firewalls, and binding regulations.[v] Indeed, there do exist examples of such control, such as the Great “Firewall” of China and the “Halal Internet” in Iran.
However, I argue that those controls are imperfect solutions, economically unfeasible, and technologically limited. Those countries have to accept a high tradeoff in terms of governance and transaction costs, access to global networks, and economic implications on their firms. More importantly, such controls have grave implications for civil liberties and access to information.
Such a perspective also betrays a lack of understanding of the complexity of cyberspace. It is often the case that web resources consist of websites hosted on multiple servers worldwide; intermediaries, uploaders, and downloader all operating in different jurisdictions. There also exist technological circumventions such as mirror websites, proxy servers, and VPNs. In any case, attribution of actions is particularly problematic in cyberspace.[vi] Thus, imposing a legal regime, detection violations, tracing culpability, and then persecuting alleged offenders are all in themselves high techno-legal feats to achieve.
In any case, all global commons are susceptible to a degree of state control and rely on physical assets to some degree. Aircraft, spacecraft, and vessels are required to access air, sea, and space, respectively. It is important to understand that these physical elements have no utility without the shared domain. States also enforce their own laws to a degree in their territorial waters and airspace. None of this, however, undermines the fundamental nature of such resource domains as ‘Commons.’
Current State of Cyberspace Governance
Currently, “internet governance” on an international scale does not exist as an institution. Instead, it is largely composed of patchwork coordination of hundreds of decentralised and mostly private-sector entities across the globe. These include network and server operators, user communities, domain name registrars, IP address and standards organizations, internet service providers, etc.[vii] For example, the US-Based not-for-profit, the Internet Corporation of Assigned Names and Numbers (ICANN), is such an organization responsible for assigning unique domain names and IP addresses. Similarly, the World Wide Web Consortium(W3C) is the main international standards organization for the World Wide Web, which includes individuals, businesses, non-profit organizations, governmental entities, and universities as its members.
Countries have also enacted legislation that does govern certain aspects of cyberspace by restricting criminal activities in the context of privacy, data protection, and Intellectual Property. The lacuna that differentiates cyberspace from other commons is the absence of any widely-accepted international legal framework to govern it.
Separate international regimes govern the 4 recognised global commons. The UN Convention on the Law of the Sea (UNCLOS) entered into force in 1994. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty), entered into force in 1967. onto it. The Antarctic Treaty entered into force in 1961. The Convention on International Civil Aviation came into force in 1947.[viii]
On the other hand, the 2001 Budapest Convention on Cybercrime is the closest such regime developed in Cyberspace. It is the first multilateral and binding international treaty seeking to address cybercrime by harmonizing national laws, improving investigative techniques, and increasing cooperation among nations. Unfortunately, its membership has been largely restricted to European countries. This largely seems to be the fact that it was developed by the Council of Europe and was never drafted in a wide-consultative manner.
Today, it is even safe to assert that the militarisation of Cyberspace has already become a reality, with various countries having dedicated cyberspace commands. Various massive coordinated cyber-attacks on national utilities, secure networks, etc., with suspected foreign state backing, have already taken place. However, no consensus has developed whether ‘Cyberattacks’ constitute ‘use of force’ or ‘armed attack’ under the UN Charter, or whether States have a right to respond in self-defence in such context.[ix]
As the potential to cause harm to cyberspace is real and continues to grow, states cannot leave cyberspace ungoverned. Still, they must find a way to exert their control and authority to reduce their vulnerability. Thus, a potential legal regime for cyberspace needs to encompass all major aspects, from network protocols to cybercrimes and cyberwars.
Towards an Appropriate Regime
In this part of the paper, I argue that the conceptual comparative by which we equated Cyberspace to other Global commons can also be extended to draw insights for a potential international regime to govern cyberspace. Towards this end, I shall be relying on some of the 8 principles developed by Elinor Ostrom for managing a common and shall attempt to apply them in the context of cyberspace and a global community.
Some of those insights relevant for an International Consensus on underlying principles and norms are –
- Limitations on State Power
The International Law surrounding these commons also places limitations on the force a state can legitimately exert on these domains’ actors. For instance – no country is permitted to shoot down a civil aircraft.[x] The scope of government actions in Antarctica is similarly largely restricted to scientific research.[xi] The Antarctic Treaty and the Outer Space treaty both prohibit the deployment of weapons in Antarctica and Outer space, respectively.[xii]
Thus, a possible principle maybe, “Every state has a right to access cyberspace for peaceful and fair purposes only.” Cyberwarfare, particularly those targeting civilian infrastructure and thus having an indiscriminate and disproportionate impact, can be restricted in such a manner.
It is also necessary that there should be some limitations on the control a state can exert in cyberspace on individuals, incorporated in International Law. A complete internet shutdown should be prohibited. There have been various recent instances in which countries have resorted to completely cutting off internet access to stifle mass communication and democratic movements. International human rights law already prohibits broad, indiscriminate, and indefinite restrictions on fundamental freedoms, including the right to free speech and information.[xiii] Such blanket shutdowns also impose tremendous costs on those integrated into the digital economy.
No other global domain is perhaps as crucial and accessible to Individuals as is cyberspace. While State powers are harmonised and limited in devising an international regime, Individual Rights have to be protected. This can be done by involving various online freedom advocacy groups in deliberations and ensuring that the proposed regime conforms to the various international human rights instruments. Article 19 of both the Universal Declaration of Human Rights and the 1996 International Covenant on Civil and Political Rights, for instance, uphold freedom of expression. Setting these use limitations would amount to setting boundaries for commons as per Ostrom’s 1st principle.
- An International Governing Body
A prominent reason why many states such as Russia, China are distrustful of the Global Internet is that most traffic is controlled by US infrastructure. Decentralisation of power is thus necessary.A democratic, multi-stakeholder governance body, with participative rights for all countries, would go a long way in asserting internet neutrality and maintaining global confidence. Such a body would also be necessary to lay global cybercrime standards and privacy and thus harmonise various national laws. This would be an application of Ostrom’s 3rd Principle regarding participative rule-making.
Such a body could also enforce rules in an effective and accountable manner as per Ostrom’s 5th Principle. The same body can also serve as an impartial adjudicatory forum to peacefully resolve international cyberspace disputes, following Ostrom’s 7th principle of ensuring low-cost and accessible dispute resolution.
- Identification of Actors and Local Rule Enforcement
While all commons promote free access and use, all relevant international regimes engage in some form of universal identification systems for the sake of transparency and accountability. For instance, the International Maritime Organisation operates the Automatic Identification System (AIS) for all sea-going vessels. Simultaneously, the International Civil Aviation Organisation (ICAO) mandates compulsory registration of all civil aircraft. Such identification is implemented with member countries’ cooperation, which goes a long way in curtailing criminal and subversive activities across these commons.
The existing framework of ISP and domain registration in cyberspace exists as a voluntary private-party framework, institutionalising the same and ensuring universal co-option is still required. It would be essential for effective enforcement of rules. It is also common to practice international law for countries to have their legislatures ratify international treaties or pass a special act to enable their local enforcement.[xiv] This would align with Ostrom’s 4th principle of commons having legal recognition in the jurisdictions where they operate.
Global Commons bring economic benefits to nations; facilitate the passage of goods and people on which every nation depends. Thus, all countries have an interest in ensuring free rights and usage of these commons and avoiding conflict over them. Over time, they have come together to evolve international conventions governing the same.
‘Cyberspace’ fits perfectly within this paradigm. Drawing a comparison with the recognised commons of seas, air, outer space, and Antarctica allows us to infer the base principles which must form any potential international regime governing cyberspace. Ostrom’s principles regarding the community of commons’ management turn out to be equally relevant in a global and virtual context.
Thus, it is high time that there is a shift to viewing Cyberspace as a “Global Common,” and an appropriate international regime is developed to govern it cooperatively. This would allow for efficient use of this resource domain while reducing transaction costs and protecting all stakeholders’ interests.
[i] John Perry Barlow, ‘A Declaration Of The Independence Of Cyberspace’ (Electronic Frontier Foundation, 2020) <https://www.eff.org/cyberspace-independence> accessed 11 May 2020.
[ii] United Nations Conference on Trade and Development, ‘Digital Economy Report 2019’ (United Nations Publications 2020).
[iii] Susan Buck, The Global Commons: An Introduction (Island Press 1998).
[iv] Garett Hardin, “The Tragedy of the Commons” (1968) SCIENCE 162 <https://science.sciencemag.org/content/162/3859/1243> date accessed 3 May 2020.
[v] Mark Raymond, ‘Puncturing The Myth Of The Internet As A Commons’ (2020) 3 Georgetown Journal of International Affairs.
[vi] Kriangsak Kittichaisaree, Public International Law Of Cyberspace (Springer 2020).
[vii] Brian Loader, The Governance Of Cyberspace (Routledge 2020).
[viii] Susan Buck, The Global Commons: An Introduction (Island Press 1998).
[ix] Tara Murphy, ‘Security Challenges In The 21St Century Global Commons’ (2010) 5 Yale Journal of International Affairs.
[x] Chicago Convention on International Civil Aviation, Art. 3.
[xi] Antarctic Treaty, Art. III and IV.
[xii] The Antarctic Treaty, Art. I (1), The Outer Space Treaty, Art. IV
[xiii] Nicholas K Tsagourias and Russell Buchan, Research Handbook On International Law And Cyberspace (Edward Elgar Publishing 2015).
[xiv] Nicholas K Tsagourias and Russell Buchan, Research Handbook On International Law And Cyberspace (Edward Elgar Publishing 2015).