Star Law Analysis
Internet exposes a new international space
An analogical study of cyberspace in light of sovereignless character
Md.Morshed Mahmud Khan, Mohammad Osiur Rahman & Mohammad Mahabubur Rahman
Sovereign-less character of international space can be a better solution
There exists in international law a type of territory, which is called international space. At present we get three international spaces as such Antarctica, Outer-space, and the High Seas. The significance of international space is that no state will exercise sovereignty over the international space. It is a recognized norm of the international law. Some American cases and state practices reaffirmed the sovereignless character of international spaces. The finding of the case of Smith v. United States [507 U.S. 197, 122 L.Ed. 2d. 548 (1993)]. is typical one in this regard. Antarctica is just one of three vast sovereignless places where the negligence of federal agents causing death or physical injury will remain outside the purview of the sovereign authority of the state. In this case the court side by side opined about the jurisdiction of the outer space that negligence or any other violations in outer space are staying beyond the confines of the sovereignty. The court also observed that the jurisprudential approach towards the high seas disposes its sovereignless nature. The similar view was shown by in subsequent cases. Even the principles enunciated by this case were strictly followed by in many cases. The Hughes Aircraft [ 29 Fed. Cl. 197, 231 (1993)]. is one of the most glaring cases. In this case the U.S. Court of Federal Claims on the basis of Smith v. United States declaring the non- application of the Federal Tort Claims Act to claims arising in Antarctica held that US patent law did not apply to foreign spacecraft in outer space. The governing international treaties are also similar in their conception and design showing the essence of international customary law in this behalf.
Previous international spaces can usher the way for new one
The fundamental document in outer space law is the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space. The treaty was adopted pursuant to a United Nations General Resolution which contains verbatim much of the text of the treaty. The resolution and the treaty explicitly state that States have jurisdiction over objects bearing their registry. Remarkably, this resolution of the General Assembly was unanimous. There is also no doubt that the Outer Space Treaty was based on the Antarctic Treaty. Hearings held before the Senate Committee on Foreign Relations of the USA in 1967 actually include a copy of the Antarctic Treaty. In the hearings, the committee noted that the Outer Space Treaty was specifically based on the Antarctic Treaty. The treaty states that outer space, including the moon, is not subject to claims of sovereignty. Therefore, no territorial jurisdiction is possible. The treaty also provides that all activities shall be in accordance with international law. So it is evident that the previous international space has remarkably influenced the subsequent ones for birth, growth and progressive development in modern perspectives. Such kind of analogical endeavours can be applied for the cyberspace to be recognised as a new international space within the purview of international law. Cyberspace emerged during the 1970s and 1980s as the apparatus of the Internet took root, but it was not until the early 1990s that an explosion in users and uses, including commercial uses, introduced a worldwide virtual community to another international space. The theoretical and conceptual impediment is physicality. These three physical spaces are not like cyberspace, which is a non-physical space. The physical/non-physical distinction is only one of so many distinctions that can be made among these spaces. But what makes them analogous, as international space is not any physical similarity, but their international, sovereignless quality. As a fourth international space, cyberspace should be governed by default rules to be proposed and adopted in future that resemble the rules governing the other three international spaces. It would be better solution vis-a- vis joint sovereign. Because reformation of existing international law will be more easy than facing the conflict of sovereign states regarding many issues.
Concluding remarks
Our brief experience with cyberspace indicates clearly that the computer-with-internet- connection is a space machine, negating physical distance and creating new spaces in which novel relationships and activities can occur. It has created a new environment in our relationship covering almost every directions of our life. Even we have moved quite far from those cultures where activities were guided solely by the rise and fall of the sun every day. Cyberspace is moving us to a place of virtual light, indeed a place that has no night. These new relationships, dynamism and spirit have the potential to touch sovereignty is many levels, particularly the territoriality of sovereignty and territorial monopoly of legal sovereign. The invasion of legal spaces by cyberspace goes beyond the law's physical places and objects. For example, the law describes and defines many issues and concepts in territorial terms. Jurisdiction is an area of law that is directly linked to control over people and spaces etc. The structure and nature shows that cyberspace cannot be controlled properly by the domestic law, as they are, in most cases, outcome of command, and acquiescence of sovereign authority of territorial character.
If the cyberspace is left open to be controlled by all the states, then it will come within the purview of legal system of every state resulting in numerous complications. In that case the recognition and acceptance of it as new international space will absolve lots of debates. International law is not merely a terrestrial phenomenon, but includes all non-sovereign spaces, whether on this earth or beyond it. So existing principles of international law can remarkably contribute to govern the cyberspace with few substantial changes. It is also not deniable that huge procedural changes have to be drawn up due to the cyber -architectural peculiarity.
This is the concluding part of the story.
Md.Morshed Mahmud Khan,Associate Professor,Dept. of Law, University Of Chittagong
Mohammad Osiur Rahman,Assistant Professor,Dept. of CSE,University Of Chittagong
Mohammad Mahabubur Rahman, Lecturer,Dept.of Law,Premier University, Chittagong
