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
Cyberspace curtails the territorial monopoly of legal sovereign
One of the aspects of sovereignty is that its holder makes law for the subjects within the territory. The state itself is a territorial institution. So the legislative activities are centered towards the territorial manifestation. But the cyberspace is such a territory for traditional legislation will prove irrelevant for a fixed territory. Law is defined as a set of rules, which can be enacted or adopted more or less in modern perspective by a legislature. It is applied and developed by the courts of law. Both these institutions are organs of state. Since state is territorial in nature, the law is conceived and spoken of as territorial .The enforcement of law is undoubtedly territorial in the same way as the state is; and so the state power is in time of peace exercised only within the territory of the state or on its public ships and aircraft and on vessels and aircraft registered under its law on the basis of objective territorial principle. The territoriality of law in this meaning flows from the political division of the world. No state allows other state as a general rule to exercise powers of government within it. Therefore the enforcement of law is confined to the geographically territorial boundaries of the state enforcing it. It is easy to understand how the enforcement of law can be regarded as territorial, for force is a physical affair and is manifested in physical space. The proposition that a system of law belongs to a defined territory means that it applies to all persons, things, acts and events within that territory and does not apply to persons, things, acts and events elsewhere. Control over physical space, and the people and things located in that space, is a defining attribute of sovereignty and statehood. Universal Access Paths to Cyberspace destroyed territorial confines. Cyberspace has no territorial-based boundaries. The process and speed of information transmission on the net is almost entirely independent of physical location such as messages can be transmitted from any physical location to any other location without degradation, decay, or substantial delay, and without any physical cues or barriers that might otherwise keep certain geographically remote places and people separate from one another. The Net enables transactions between/among people who do not know, and in many cases cannot know, the physical location of the other party. There is no necessary connection between an Internet address and a physical location. The power to control activity in cyberspace has very tenuous connections to physical location. Many governments first responded to electronic communications crossing their territorial borders by trying to stop or regulate that flow of information as it crosses their borders. In particular, resistance to “Transborder Data Flow” (TDF) reflects the concerns of sovereign nations that the development and use of TDF's will undermine their “informational control,” negatively influencing on the privacy of local citizens and private property interests in information. Even local governments in the United States have expressed concern about their loss of control over information and transactions flowing across their borders. But efforts to control the flow of electronic information across physical borders are likely to prove futile, at least in countries that hope to participate in global commerce. Individual electrons can easily, and without any realistic prospect of detection, "enter" any sovereign's territory. The volume of electronic communications crossing territorial boundaries is vast in relation to the resources available to government authorities to permit meaningful control. This lack includes non-existence of law and legal institution. But the law applicable to the cyberspace would be quite different form territorial -based law because of the peculiarity of cyber world bearing virtual character of visual nature. It should be considered that the events or activities ensued in cyber world causing legal consequences are not less than those are in the real world. Accordingly a distinct set of laws and legal principles has become inevitable to be adopted with same mission holding sprit of punishment or remedy. The financial damage sustained by the individual or by corporate body or by governmental organs is claiming billions of dollars, which sometimes surpass traditional territorial-based damage.
Joint sovereign or less sovereign proposition: Twofold test for cyberspace regulation
The nature and location that exposed from the above discussion shows that cyberspace can be regulated by all states interconnected by Internet or it would remain sovereignless to be governed by a distinct set of law independent of the domestic law of any particular state. The joint regulation by the more that one state posits that these states will exercise sovereign power over the cyberspace jointly. This type of authority is not rare in the international legal and political arena. As we discussed earlier in modern times, there have been revolutionary changes in respect of the theory of sovereignty of states. In present times it is not proper to say that the span of activities over which the sovereign authority is exercised is not remaining exclusively of any particular state. It is almost settled view that over one and the same there can be only one sovereign. But international political factors disgorges in practice, several exceptions, such as:-
a) The first and probably the only real exception is the condominium which exists between two or more states exercising sovereignty jointly over a territory , e.g., condominium of Austria and Prussia over Schleswig Holstein Lanenburg from 1864 till 1866, condominium of great Britain and Egypt over Sudan from 1898 to 1955 and condominium of great Britain and France over the New Hebrides (now the independent state of Vanuatu). These types of authority were exercised on the basis of bi-lateral negotiation, even though they could not avoid the conflict on some vital issues .
b) One state exercising sovereignty, which is, in law vested elsewhere, i.e., where a territory is administered by a foreign power with the consent of the owner state. For example, Great Britain exercised sovereignty over Turkish Island from 1878 to 1914. But that is not a substantial example in modern perspective because at that time many states did not exercise actual control over the parts of their own territory for administrative and financial hazards. The real conflict regarding diverse issues arising out of joint sovereign was not tested.
c) The third exception is that of giving territory on lease or pledge by the owner state to a foreign power. For example, in 1998 China leased the district of kiaochow to Germany, Wei-hai-wei and the land opposite the island of Hongkong to Great Britain, Kuang Chouwan to France and port Authur to Russia. It is noteworthy that the relation between the lessee and the lessor state is regulated exclusively by the stipulation of the bi-lateral agreement. So all the possible controversial issues are previously resolved and accordingly joint sovereign can go with their own significance.
d) Where the use, occupation and control of the territory are granted in perpetuity by the grantor state to the other state. For example, in 1903 the republic of Panama transferred to the USA a ten miles territory for construction, administration and defence of Panama Canal.
e) The last exception is that of a mandated or trust territory. The state, which is given a mandate or a trust territory, exercises sovereignty over it although the territory is not its own. In the international perspective we find the mandate system under the League of Nations and mandate system under trust territory under the supervision of the United Nations. In both cases the controlling state is responsible to the both international organizations.
Test of joint sovereignty is not possible in case of cyberspace because joint authority of two or three or few states over a physical territory is not similar to the joint sovereign authority of almost all states over non-physical cyberspace consisting of much more complicated issues. Multi-dimensional conflicts regarding cyberspace are likely to arise such as jurisdictional confusion, extradition dilemma, conflict among the domestic laws of different countries, conflict between common law approach and civil law approach etc. So we can testify the theory of international space proposition in the light of sovereignless quality. Contd..
The concluding part will be published on February 07, 2005.
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 Rahma, Lecturer, Dept. of Law, Premier University, Chittagong
