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JILT 1999 (3) - Georgios Zekos


Contents

1.

Introduction

2.

Legal Background of Sovereignty and Jurisdiction

3.

Internet and Sovereignty

4.

Internet and State Jurisdiction

5.

A Threat to Sovereignty

6.

Conclusion

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Internet or Electronic Technology: A Threat to State Sovereignty

Dr Georgios Zekos
BSc(Econ), LLB, PhD
Attorney at Law
Amvrosia-Komotini, Greece
gzekos@hotmail.com
 

1. Introduction

The Internet began, as ARPANET, in 1969 at the Advanced Research Project Agency. It was developed as a way to connect the military, defense contractors, and educational institutions conducting defense research. The network spread from government agencies and universities to corporations and individually as other networks formed and connected to ARPANET.[1]

State law is based on borders and jurisdiction. Legal rights and responsibilities are therefore dependent on where one is located in space.[2] State law determines court jurisdiction within constitutional boundaries.[3]

What we call 'cyberspace' can be characterized as a multitude of individual, but interconnected, electronic communications networks. The Internet is not a physical object with a tangible existence, but is itself a set of network protocols that has been adopted by a large number of individual networks allowing the transfer of information among them. Moreover, the Internet is a medium through which a user in real space in one jurisdiction communicates with a user in real space in another jurisdiction. The world of cyberspace has no physical existence beyond the computers on which it resides but this fact does not keep it from being real because it is a world of information that have real consequences and a real existence. It is the interplay between the vast number of largely centralized individual networks and the decentralized internet work through which they can communicate that will prove to be a fundamental importance in determining the efficacy with which state law can be imposed on individual network communities. Hence, the key feature of the Internet is that the net is set up to operate logically rather than geographically.

Has the Internet a controlling body? The Internet has no controlling body and thus, at first sight, the Internet is designed without a centralized control mechanism.. It exists only by virtue of the numerous computers and networks that are linked to it. A common language was developed which allowed different operating systems, such as windows, Macintosh and Unix, to speak to each other. Networks are capable of promulgating substantive rules of conduct, namely the 'network protocols'. A domain name is a significant part of an Internet address that determines where data packets are to be sent.[4] Domain names do not effectively reside in a physical location and the efficacy of the domain system requires expansion beyond territorial boundaries and into globally integrated laws. An effective domain name system will function properly from both a technological and management standpoint. The entity in a position to dictate the content of these network protocols is a primary 'rule-maker' in regard to behavior on the network. Each network has its own message origination and routing rules. Hence, communication networks are defined at a minimum by a set of rules specifying the medium through which messages can travel and the characteristics of the messages, that are permitted to enter the network.

The state's ability to impose sanctions on law-violators is contrasted by the need for physical proximity and control. Besides, individual sovereigns can impose their rules on entities or persons not physically present in the area over which the sovereign has control. Such mechanisms entail additional enforcement costs, both in terms of the direct costs of coordinating and harmonizing the legal regimes of competing sovereigns and costs of projecting sovereign power extra-territorially.

The technology is so exhilarating that there is a tendency to claim that the changes we observe in sovereignty, the state, jurisdiction and law are caused by cyberspace.[5] The growth in the use of the Internet has been one of the most interesting technological and political developments of the late twentieth century. International relations are influenced by internal political phenomena, and the interaction of non-state actors across borders. Furthermore, the growth of a network of linked computers and computer networks of which the Internet is a part has fostered the existence of a virtual world. The Internet is an invaluable means of research and communication. Is the Internet a threat to sovereignty? This article will provide an answer to this question.

2. Legal Background of Sovereignty and Jurisdiction

International law is based on the concept of the state. The state lies upon the foundation of sovereignty, which expresses internally the supremacy of the governmental institutions and externally the supremacy of the state as a legal person. 'State', 'nation', and 'country' refer collectively to nation-states recognized as sovereign entities under international law.

Sovereignty is founded upon the fact of territory and therefore without territory a legal person cannot be a state.[6] Legal concepts as sovereignty and jurisdiction can only be comprehended in relation to territory and thus the principle whereby a state is deemed to exercise exclusive power over its territory can be considered as a fundamental axiom of the classical international law. Most nations indeed developed through a close relationship with the land they inhabited.[7 ]

The principle of respect for the territorial integrity of states is founded as one of the linch-pins of the international system, as is the norm prohibiting interference within the internal affairs of other states.[8] A number of factors have tended to reduce the territorial exclusivity of the state in international law. Technological and economic changes have had an impact as interdependence becomes more evident and the rice of such transnational concerns as human rights and self-determination have tended to impinge upon this exclusivity. Territorial sovereignty has a positive and a negative aspect. The positive aspect relates to the exclusivity of the competence of the state regarding its own territory. The negative aspect relates to the obligation to protect the rights of other states.[9]

Jurisdiction concerns the power of the state to affect people, property and circumstances and reflects the basic principles of state sovereignty, equality of states and non-interference in domestic affairs.[10] Jurisdiction is a vital and central element of state sovereignty, for it is an exercise of authority, which can alter or create or terminate legal relationships and obligations. The preceding notion of jurisdiction is based on a physical reality that does not exist in cyberspace. It may be achieved by means of judicial action or by executive action. The grounds for the exercise of jurisdiction are not identical in the cases of international law and conflicts of law rules.[11] Actions in the virtual world of the Internet have legal ramifications in the real world. The duty of non-intervention within the domestic jurisdiction of states provides for the shielding of certain state activities from the regulation of international law. Besides, judicial jurisdiction concerns the power of the courts of a particular country to try cases in which a foreign factor is present. The powers of the state that we refer to as 'sovereignty' have never been static. States do not control interactions among individual users of the Internet.[12] The development of cyberspace gives rise to new means of expression and allocation of power both to the state and to non-state entities. As mentioned above, international law is the vehicle for revision of these allocations of power. The rise of economic interdependence and other technological changes must be considered alongside cyberspace.

Globalization is reshaping the fixed and firm boundary between domestic and international spheres and changing our conceptions of the proper domain of domestic and international law. Thus, there is no doubt that the process of globalization is transforming traditional conceptions and constructions of sovereignty. State has emerged as the exclusive center of all authoritative decision making and institutionalized the principle of internal sovereignty and thereby established a unitary 'monistic' legal order. Given the rapid globalization of the economy and the growth of regional institutions like the European Union (EU), the conventional notion of a sovereign state has limited efficacy. The increasing incorporation of the European Court of Justice (ECJ) judgements into national law is a telling factor against the primacy of the national state in the EU.[13] The development of a global economy and the associated reorganization of social power have transformed the territorial model of sovereignty. Hence, the fragmentation of the state is the form that sovereignty takes in an increasingly global economy. The enhanced power of central banks is the growing importance of monetary policy in an era dominated by the demand for more global financial integration. This change reflects not only a shift of policy instruments from fiscal to monetary policy but also a shift of power within the sate toward agencies. Therefore, the territorial jurisdiction of the modern state over economic life is increasingly constrained by the globalization of economic and social relations. Taking into account that legal categories constantly adjust to changes in the underlying distribution of social power, the formal legal category of sovereignty is constantly adjusted to respond to the changing social forms of capitalism.

The development of cyberspace includes several variables and may empower both the market and the state and thus further analysis is required in order to determine which is empowered more in particular instances. The sovereignty of the state is derived form its utility to express the sovereignty of the individual.[ 14] Hence, prescriptive jurisdiction should be allocated based upon the territoriality of conduct. Territoriality is a type of formalism and suffers from the deficiencies of underinclusiveness and overbreadth. As mentioned above, states are the sovereign actors in the international system. The capacity to wield power is defined and circumscribed most fundamentally by the ability to exercise control over physical territory. Thus, control over a defined territory is the first criterion of statehood, an indispensable prerequisite for participation in the international system.

3. Internet and Sovereignty

Sovereignty is objectionable when it is used as a conclusory epithet in discussions of the power of the state.[15] Realists and positivists purport to be empiricists and sovereignty comports with the facts of the present world. They argue that states should be accorded plenary sovereignty. Idealists and natural law theorists argue that authority should be transferred to a world federalist government.[16] Anne-Marie Slaughter seems to contemplate a static allocation of powers to the state combined with new decentralized means for the state to interact with other states.[17] The information revelation function serves to legitimate government action. New technologies change our means of achieving our goals, both technically and structurally. The state is shaped and reshaped by its own domestic law and therefore international and domestic law are joined in a single project of social design. Trans governmentalism refers more to the way states organize themselves for international relations rather than refers to either the powers of the state itself or about the international legal order. Conclusory territoriality is the constraint that unravels the assertion of constrained state power.[18] Sovereignty has both horizontal and vertical determinants. A state's power vis-a-vis other states is the horizontal determinant. A state's power vis-a-vis sub-state and supra-state institutions is the vertical determinant. The vertical determinant is addressed by the concept of subsidiary. In order to manage a system where power cannot be allocated horizontally, states must share power through vertical structures. These vertical structures include the international legal order, particular treaties and institutions by which states share power in the international legal system.

As mentioned above, traditional jurisdiction relies on the theory that jurisdiction is attained when an activity is directed into the forum state.[19] Users of the Internet have no notice that they are acting within another jurisdiction because Internet addresses do not correspond to physical locations. Border controls on the Internet are not impossible to develop and implement.[20] A legal system must be seen as legitimate in order to have the consent of the governed. Besides, choice of law provisions are inadequate for most Internet transactions. There are the normal expenses of litigation to determine the appropriate forum f or the dispute. Assuming a forum decision is reached, it may be unreasonable to expect user of moderate means to be able to afford the travel costs. Thus, access to law in a choice of law regime is too expensive for the number of people who will be using the net in the future. It seems that the Internet is a jurisdictional physical location. Cyberspace must be treated by a separate jurisdiction with its own rules that reflect its unique character. Internal law is conceived of as horizontal law, in which the subjects of the law are also the makers of the law. Hence, there is a need for a new understanding of a supra cyberspace control or relations within a cyberspace territoriality.

Politics is the struggle to determine the common interest of society and the struggle to dominate lawmaking and law-executing systems. There is no concept of the social unity of all humanity. Social and legal philosophy comes to a halt at national frontiers. Internet threatens traditional political institutions and perhaps even the very concept of sovereignty itself.[21] The Internet permits political opposition groups to flourish more easily because of the decentralized nature of the Internet itself. Information technology has demolished time and distance which threatens the power structures of the world. Hence, the power of a state to stop others from interfering in its internal affairs is rapidly eroding. Trade, global capital flows and environmental degradation undermine sovereignty. It could be argued that the Internet seems to be a unique threat to government's abilities to control the politics, economics, and culture within its territory. The increasing use of cyberspace to conduct both national and global commerce is a threat to the sovereign state's historical control over economic activity. Buyers and sellers in cyberspace have a common interest in ensuring the maintenance of business efficiency, efficacy and good faith. The size and nature of cyber-commerce are problems the Internet creates for national governance. Cyberspace has dramatically reduced the transaction costs of coordination in both the private and the public sector. Private sector relates across borders more extensively and business government relations in cross border enterprise is more extensive and complex. The technologies that challenge the protection of intellectual property rights provide the tools for enhancing protection. In contrast, the potential of cyberspace for state intrusion in the sphere of the individuals is another dark side of this technological production frontier towards totalitarianism. Cyberspace does not empower the market significantly but it has provided the kind of dense information exchange network that will allow state control of most economic activity to flourish.

Can cyberspace convert information from a private good to a public one? Public goods are goods that are characterized by non-rivalry and non-excludability of consumption. Cyberspace is currently struggling with this problem but it tends to convert information from a private good to a public one. It makes the exchange of information faster and cheaper which is the reason for the rise of commerce in information goods. Enterprises establish network externalities by exploiting their utility in greater numbers and therefore decreasing the cost of transacting. Since information will flow cheaply from the purchaser to the seller, there is no reason that government cannot have the same transaction cost reduction benefits enjoyed by the private sector and therefore government functions can be enhanced by cyberspace. Moreover, there is a shift in the nature of economic power from physical assets to information resources. The whole understanding of the economic world shifts from physical nature towards virtureality. Without efficient Internet access, enterprises will be unable to keep up with competitors who have access to the Internet's capacity for worldwide information gathering, marketing and management. The transaction costs incurred by dealing with a multitude of physical world jurisdictions will diminish profits and thus deter a great number of marginal transactions. What is absent in the virtual world is the degree of uniformity and unanimity defining a custom which has the capacity to metamorphose into a legal rule and become both binding and obligatory. The success or failure of regulation by means of customary rules will depend to a large extent on the stability of the cybercommunities and the development of their accepted norms.

4. Internet and State Jurisdiction

Are telephone and television different from cyberspace? Internet, an international network of computers and computer networks connected to each other, differs from other information technologies because it combines global reach with very low barriers to entry. Besides, conduct still occurs in territory. Individuals still reside in territory and therefore effects are still felt in territory. Thus, as long as technology has not achieved the instantaneous travel in the dimension of time (Einstein's Theory), every virtual transfer finally runs to earth. Cyberspace is an instrument of dispersion of effects. While the older technologies such as telegraph, radio and television technologies remained confined in their uses to nation states, Internet and cyberspace has developed a global scope which does not necessarily means that sovereignty is undermined. Sovereignty was not undermined but was rather reoriented to respond to information brought to decision makers by television or satellite television which has potential to explode the geographic limitations historically seen in television usage. In contrast, the most distinguishing feature of the Internet that makes it more threatening to sovereignty is that it is not susceptible to the same physical and regulatory controls such as radio and television technologies. It could be argued that the Internet is no more likely to undermine national sovereignty than did the satellite television.

In fact, Internet relies on already existing physical communication infrastructures. The need for a physical communication infrastructure makes Internet susceptible of control which means elimination of the threat on sovereignty in general but it makes easier the erosion of the sovereignty of states by anyone who controls this kind of infrastructure. It must be mentioned again that border controls on Internet are not impossible. Besides, the case with which people can participate in cyberspace activities enabled Internet to grow exponentially with virtually no government oversight. It could be said that the Internet challenged the three historic functions of the state: providing national security, regulating economic activities and protecting civic and moral values. Thus, the Internet threatens the government's ability to control power, wealth and morals within its territory. For instance, the con-artists, frauds perpetrated through telemarketing, are often placed beyond the reach of prosecutors. Actions in the virtual world of the Internet have legal ramifications in the tangible world. Personal jurisdiction arising from Internet contracts presents the most difficult application of traditional law.[22]

It could be argued that cyberspace is a supra-territorial phenomenon and the supra-territoriality of the medium results in part in a supra-territorial society. The real jurisdictional novelty of cyberspace is that it will give rise to more frequent circumstances in which effects are felt in multiple territories at once. Cyberliberatrians assume that cyberspace is itself a sovereign country. On the other hand, it is not a sovereign place because governments do not view it as such. Many governments already regulate cyberspace.[23] Any remaining pockets of decentralized autonomy survive solely by leave of governments.[24] The limits on enforcement jurisdiction mean that most individual content providers never have to worry about violating foreign laws. Content providers can take steps to control content flows. Digital signature and filtering technology continues to develop to facilitate identification.[25] Thus, the Internet content provider must take care not to send his content into a jurisdiction where it is illegal. As mentioned above, a state cannot enforce its laws against an individual content provider from another state unless the content provider has a local presence. The majority of users who transact on the Internet have no presence or assets in the jurisdiction that wish to regulate their information flows. The potential liability can become an unforeseen reality when the provider moves assets to the regulating jurisdiction. No state has as yet imposed liability on a provider for unforeseen effects in an unknown jurisdiction. Thus, an individual content provider in one jurisdiction faces potential liability in another jurisdiction when he/she places information on the Internet. A state cannot direct regulate extraterritorial providers in the sense of imposing liability or punishment on such providers. Internet users outside the regulating jurisdiction can be affected by the local regulation to the extent that they are dependent on users or content providers with a presence in the regulating jurisdiction.[26] It remains the dominant method for regulating all transnational transactions including Internet transactions. International harmonization is a solution to both problems of the effectiveness and legitimacy of territorial regulation.

Can all of cyberspace be free of state-bound law? Many recent initiatives in international regulation and in the trade world have started a co-operation among states to establish rules of prescriptive jurisdiction, harmonized laws, and international organizations to apply these rules. It is argued that cyberspace is not technically susceptible to regulation. Cyberspace either will raise the costs of regulation to the point where it is inefficient to regulate or the technological developments will enable cyberspace to provide its regulation. The allocation of jurisdiction to a particular state is not simply a technical issue and therefore it involves distribution or political choices. Thus, the development of cyberspace raises new problems of jurisdiction and creates consequently another understanding jurisdictional problems. At the same time cyberspace provides intriguing new political solutions. Hence, the central and most difficult legal issue in cyberspace is jurisdictional. It is difficult to locate cyberspace conduct territorially because of the dispersed nature of the computer network that comprises the Internet. It could be said that since cyberspace cannot be combined in any single territory and assuming that territoriality is the single basis for jurisdiction, then no state could regulate cyberspace.[27] It could be argued that cyberspace creates global government. Internet regulation is a global problem and thus internal co-operation is necessary. Thus, states wishing to impose law on or in cyberspace will find that they do not have the physical control over the net necessary for lawmaking authority. The jurisdictional conundrums the Internet causes appear at the international level. Traditional international legal rules on jurisdiction (jurisdiction to prescribe, adjudicate and enforce) do not fit the Internet context. Furthermore, international legal rules on prescriptive jurisdiction are not very helpful in providing a way to resolve the potential clash of legal systems. Hence, traditional international law on jurisdiction does not facilitate international co-operation on international regulation. Who will make and enforce the legal rules that will govern cyberspace? The Internet allows a relatively easy change of jurisdiction leading to the unprecedented situation of a market free of rules sets. Besides, governments are racing to establish a well-functioning virtual marketplace by imposing rules against legal infringements.[28]

The development of cyberspace will merely change our jurisdictional lives and should not viewed as a radical change in legal relationships. Nor should the development of cyberspace be viewed as a basis for allocation of all social decisions to the market or to international governance. Thus, merely the rise of cyberspace will not destroy the state, which does not mean that new transnational regimes are not creating systems that strengthen the claims of certain parties and consequently weaken the position of smaller states. Methods of social relations will change given the availability of the new methods of communication. There is no doubt that the expansion of Internet capabilities will entail powerful social, political and legal implications. It must be taken into consideration that trans-cultural social change is not a new phenomenon. The allocation of prescriptive jurisdiction has to be re-examined. States have tried to resolve disputes over control of the commons by reference to formal concepts such as sovereignty, territoriality and extraterritoriality, but these concepts grow increasingly indeterminate. Even where determinate, they provide unsatisfactory responses to complex social problems. The facilitation of private sector jurisdictional evasion is one dark side of cyberspace.[29] For example, securities fraud aimed into a state from a web-site that is based at an offshore server. The jurisdictional crux of the matter is that the Internet serves as an instrument of cross-border transmission of information. Hence, the Internet is beyond the jurisdictional reach of any centralized political or legal authority. The entire network is not encompassed within any single state's power which hides the real complexity of the question of how jurisdiction is allocated today and how the allocation might be changed in response to the rise of cyberspace. A state may technically have jurisdiction over an offending user, but be unable to act because the structure of the net allows that person to remain undetected and out of reach of state authority. The Internet is programmed to deal only with finding the logical location of a computer not the physical location of the computer with that address.

5. A Threat to Sovereignty

The Internet joins a long historical heritage of new information technologies threatening to upset the existing nature of politics within nation-states. Thus, the Internet looks like a threatening technological development. It may be a threat to certain aspects sovereignty and therefore it has a certain impact on national and global governance. On the other hand, the new information technologies have offered sovereigns great potential to hold on to or increase their power over their subjects. Governments have shaped public opinion or regulated the economy by effectively using the new technologies and therefore strengthening them rather than eroding their functions or legitimacy. The state has proven itself capable of a degree of adaptation. The state is likely to retain many of its current functions indefinitely, while some functions are delegated to regional or international organizations, for other reasons other functions are derogated to sub-state or non governmental entities. The delegation and derogation of functions would be expected to follow from various transaction costs and strategic considerations. It is easier for states to relate to one another than for many different kinds of non-state entities to relate to one another.

Has the Internet the potential to strengthen national governance and thus enhancing sovereignty rather than destroying it? The Internet can contribute to international co-operation by: strengthening international law and economic interdependence, empowering non-governmental organizations and supporting international security mechanisms. Collective security operations must utilize the Internet's potential in these areas. The Internet and especially electronic technology not only will be important in building a new international security structure but also the main weapon in the hands of the masters of these technology.

Cyberspace today is neutral in the contention over the powers of the state. Those who argue that cyberspace demean or enhance the powers of the state must fail because this question cannot be answered in advance or in general. Citizens by their political actions will indicate when and how contingent sovereignty will change. Technology not only strengthen the tools of government but also it strengthen the legitimacy of the government through heightened transparency and democracy. Hence, cyberspace facilitates private activity and government activity. These technological changes affect the costs of achieving our preferences. Change in the cost will affect the means used to achieve our preferences. Moreover, the Internet alters the operating environment under which a vast number of institutions, including the state, operate. The Internet threatens existing political intermediaries because it provides new channels between sources of information and ordinary members of the public. Parliaments, stock exchanges and newspapers are focus on a combination of economic and political transactions and the Internet threatens all of them.

The Internet facilitates cheap, fast and difficult to detect multi-jurisdictional transactions. A nation possesses territorial sovereignty in the sense that it exercises the principal means of authority within a given territory. The Internet is a medium through which people in real space in one jurisdiction communicate with people in real space in another jurisdiction. As mentioned above, territorial sovereignty demands national regulation of persons within the territory who use the Internet and the national regulation of the means of communication located in the territory. When a person abroad uses the Internet to produce harmful local effects, the local sovereign is justified in regulating these local effects. A state's prerogative to control events within its territory entails the power to regulate the local effects of extraterritorial acts. A distinguishing feature of the Internet is that protocol addresses do not necessarily correlate with physical location. Information mediated by many Internet services can appear simultaneously in all jurisdictions around the world. Information transmitted on the Internet can easily flow across national borders without detection. Content providers can control their content flows through a variety of means ranging from conditioning access or geographical identification to labeling and routing for filtering software. Thus, Internet content providers can shift the source of their information flows outside of any resulting territory by employing technology like telnet or anonymous re-mailers. Much of the content of the Internet is beyond the regulatory scope of any particular territorial sovereignty. It is not impossible to arrest the flow of Internet protocol packets over territorial borders. Internet activities are functionally identical to harmful pollution that wafts from one state into another and it is difficult to intercept at the state line. People in one jurisdiction do something, such as facilitating gambling, that produces effects within another jurisdiction deemed illegal there. The medium economic interdependence or the Internet by which the harm is transmitted into the regulating jurisdiction is not relevant to the justification for regulating it.

It is legitimate for a nation to apply its regulation to an extra-territorial act with harmful local effects. Regulation of extraterritorial activity is efficacious to the extent that the agents of the acts have a local presence or local property against local laws can be enforced. A nation cannot enforce its law abroad and thus a nation has plenary enforcement jurisdiction over persons and property within its borders but little if any beyond. The Internet makes it very easy and very inexpensive for individuals outside the regulating jurisdiction to sends harmful content into the regulating jurisdiction that is difficult to intercept at the border. Offshore regulation evasion has been a prominent characteristic of other communication media. In cyberspace offshore regulation evasion does not prevent a state from regulating extra-territorial activity that has local effects. The reason has to do with territorial sovereignty as traditionally conceived. A state manages to regulate the extra-territorial sources of local harms through regulation of persons and property within its territory. States penalize uses who obtain and use illegal content or who participate in an illegal cyberspace transaction. The question is whether the regulation will heighten the costs of the activity sufficiently to achieve its acceptable control from whatever normative perspective is deemed appropriate. The regulation of Internet depends on technological questions that remain unresolved. Territorial regulatory regimes governing encryption and trademark have affected Internet activity to date. Many countries have a common interest in regulating many types of Internet transactions such as fraud, criminal activity, certain types of anti-competitive activity, and so forth. Hence, the Internet facilitates rather than undermines the international harmonization process. The need for international harmonization is an acknowledgment of the limitations of a merely territorial approach to regulation. Moreover, all Internet activity is simultaneously subject to all national regulations because Internet content can simultaneously appear in every territorial jurisdiction in the world. A state's regulation of the harmful local effects of an Internet transaction does not become less legitimate because the effects of the same transaction are regulated differently in other jurisdictions where these effects appear.

States must harmonize their Internet regulation laws in order to avoid conflicts or produce a treaty setting out which jurisdiction would prevail in disputes.[30] A worsening climate in international relations might arise given all the political, economic and cultural threats posed by the Internet. While the Internet is a revolutionary phenomenon, it does not make all human knowledge irrelevant rather than a change is the dimension through which the human knowledge is expressed.

The sovereigns that have been threatened by new forms of information technologies have been those sovereigns with autocratic powers. In the twentieth century, totalitarian governments attempted to determine the information that reached their citizens by controlling all kind of media. The threat lies in the fact that in the same way in the twenty-first century other governments can use the new technology to achieve the same goals. The sovereignty of liberal democracies was enhanced by freedom of speech in all communication media. Of course, new information technologies threaten sovereigns that depend on maximum internal political, economic and cultural control over their citizens. The Internet might be a direct threat to some types of conceptions about sovereignty- those relying on maximum control over the life of people. It should be distinguished that there is a difference between complicating the task of governance rather than undermining sovereignty. For instance, international regulation in a state do not alter either the nature of its governance or the character of its power in the international system. Liberal governments can use the Internet to strengthen liberal governance and thus can use the Internet as an engine of open government by providing their people with more information about the operation of the government. All the cyber-diplomacy[31], which has been developed until now, weakens the argument that the Internet poses grave threat to traditional forms of international co-operation. The Internet has great potential to help countries not only to establish democracy but also to preserve it. Thus, the Internet has potential to strengthen the conception of sovereignty favored in the liberal political tradition.

In theory, greater availability of international legal texts will increase the opportunities for more awareness about international rules and their importance in international relations.[32] The treaty process can be more efficient by improving communications between delegations and facilitating better document management. Virtual diplomacy can be facilitated by the Internet. A new type of global interactive institution for international relating can be developed that has tremendous implications for international law. The Internet enhances the development of global markets for products, services, information and capital. Prospects for peaceful settlement of disputes improve because the economic costs of political disruption are too great for any side to bear. On the one hand, the Internet may erode governmental powers over the economy. On the other hand, it is a positive achievement to reduce the power of the government over the economy and place that power in the hands of private citizens, who will trade creating economic interdependence that provides a foundation for world peace.

It could be argued that the Internet has stolen government's monopoly on the collection and management of information. Non-state actors armed with the power of information can become institution in their own right in international relations. The Internet helps states and international organizations monitor accurately the state of affairs in troubled regions because of information flows available in cyberspace. By contrast the information which flows in cyberspace is inserted therein by specific state or non-state actors which means that the same problems related with information flow in other kind of communication media are applicable in cyberspace. Additionally, economies have shifted from physical assets to information products. State and international organizations can enhance the prospects for multilateral action against security threats by using the Internet to build support for economic or military intervention. The Internet can help facilitate multilateral military operations undertaken by international organizations. Compatibility and interoperability of communications and information systems are crucial to the success of multinational military operations. Thus, the Internet can be one of the new forms of international co-operation.[33]

The Internet cannot have a main control center nor can any single entity monopolize the abundant variety of information freely accessible on the Internet which does not mean a thread to sovereignty. Besides, in general , advanced electronic technology can be used in order to paralyze an inferior technology of a state and therefore threatening practically its sovereignty. In other words, the Internet does not simply erode sovereignty, but its effect will depend on the nature of the actions involved and thus the Internet may strengthen democratic practice.

6. Conclusion

The Internet alters the operating environment under which, a vast array of intermediary institutions, including the state, operate. The electronic technology can eliminate a substantial control over main functions related to a state. Besides, the Internet strengthens the formation of a whole new -world of transnational political and civic projects and entities. The primary actors on the international stage are individuals operating in both internal and transnational civil society and therefore as long as individuals can play this role then cyberspace cannot diminish state sovereignty. The nature of sovereign power might change and its defense within the classical concept established in international law. The westphalian model[34], in which sovereignty is linked with exclusive territorial jurisdiction, is the model of sovereignty which is transforming under the pressure of the globalization of economic relations and therefore a fundamental transformation of the form of sovereignty.

A democratic and open character of the Internet limits the possibilities of authoritarian and monopoly control. Besides, the global market has the power to discipline national governments. The commercialization of the Internet might end up as concentrated power. At present, there is no purely digital economy. The Globalization together with the digitalization of financial markets have made these markets a powerful presence. Private digital networks rather than the Internet have the power to neutralize sovereignty. Hence, a shift of some components of the state's sovereignty over to other entities carries the potential to limit sovereignty but may not be the elimination rather than a partial relocation to supra national institutions. In the end, it could be argued that the inapplicability of the theory of absolute territorial sovereignty could be supported rather than the death of the state.

Footnotes

1. ACLU v Reno 929 Fsup 824.

2. D Johnson, D Prost 'Law and Borders-The Role of Law in Cyberspace' 48 Stan L R 1367.

3. L Lessig 'Reading the Constitution in Cyberspace' 45 Emory LJ 869. American Civil Liberties Union <http://www.aclu.org/issues/cyber/burning.html>, L Lessig 'What Tthings Regulate Speech < http://www.si.umich.edu/prie/tprc/abstracts97/lessig.pdf>.

4. A Johnson-Laird 'The Internet: The Good, The Bad and The Ugly' <http://www.jli.com/papers.htm>, IANA <http://www.iana.org/aboutiana.html>, Network Solutions <http://www.networksolutions.com/>.

5. D Rowland 'Cyberspace-A Contemporary Utopia' <http://elj.warwick.ac.uk/jilt/98-3/rowland.html>.

6. Oppenheim's International Law 1992 R Jennings Chapter 5 at 563.

7. I Brownlie 'Principles of Public International Law' 1990 Oxford pp 100-200.

8. Articles 2(4) and 2(7) of the UN Charter.

9. Principle III of the Helsinki Final Act 14 ILM (1975) p 1292.

10. D Bowett 'Jurisdiction: Changing Problems of Authority Over Activities and Resources' 1982 BYIL p1.

11. L Kramer 'Rethinking Choice of Law' 90 Colum. L.Rev 277, D Post 'Governing Cyberspace' 43 Wayne St L Rev 155, Unsolicited E-mail: cases <http://www.jmls.edu/cyber/cases/spam.html>, D Goldstone 'The Public Forum Doctrine in the Age of the Information Superhighway' 46 Hastings LJ 335.

12. D Johnson 'The New Case Law of Cyberspace' <http://www.eff.org/pub/>.

13. N McCormick 'Beyond Sovereign State' 56 Mod LR 1.

14. L Kramer 'Extraterritorial Application of American Law' 1991 Sup. Ct. Rev 179. Strassheim v Daily 221 US 280.

15. Symposium 'The Decline of the Nation State and its Effects on Constitutional and International Economic Law' 18 Cardozo L Rev 903.

16. Anne-Marie Burley 'Toward an Age of Liberal Nations' 33 Harv. Int'l LJ 393, Anne-Marie Burley 'Law Among Liberal States' 92 Colum. L Rev 1907.

17 . Annie-Marie Slaughter 'The Real New World Order' Foreign Affairs Sept-Oct 1997 pp183-84.

18. The Schooner Exchange v McFaddon 11US 116.

19 . M Burnstein 'Conflicts on the Net' 29 Vand. J. Trans. L 75.

20. United States v Montoya de Hernandez 473 US 531, The Chinese Channel Limited <http://www.chinese-channel.co.uk/>.

21. W Lash 'The Decline of the Nation State in International Trade and Development' 18 Cardozo L Rev 1011, B Sanford 'Teaching an Old Dog New Tricks' 28 Conn. L Rev 1137 at 1170 'Existing Law will Adopt to This Technology Just as Those Laws Adapted to Television and Radio'. D Burk 'Patents in Cyberspace: Territoriality and Infringement on Global Computer Networks' 68 Tul. L Rev 1.

22. Compuserve v Patterson 89 F3d 1257, DEC v Alta Vista 960 Fsup 456, Zippo Mfg Co v Zippo Inc 952 Fsup 1119.

23. Framework for Global Electronic Commerce <http://www.ecommerce.gov/> Management of Internet <http://www.ntia.doc.gov/>.

24. L Lessig 'The Zones of Cyberspace' 48 Stan. LR 1403, I Hardy 'The Proper Legal Regime for Cyberspace' 55 U Pitt LRev 993.

25. G Zekos 'EDI: Electronic Technology of EDI, Legal Problems and EU Law' < http://webjcli.ncl.ac.uk/1999/issue2/zekos2.html>.

26. United States v Noriega 746 Fsup 1506 (Extraterritorial enforcement: Military invasion), American Banana Co v United Fruit Co 213 US 347, Laker Airways Ltd v Sabena 731 F2d 909, Cabby Inc v Compuserve Inc 776 Fsup 135, Playboy Enterprises v Frena 839 Fsup 1552.

27. J Barlow 'Declaration of Independence of Cyberspace' < http://www.eff.org/pub/Publications/John_Perry_Barlow/barlow_0296.declaration>.

28. C Yang 'Law Creeps onto Lawless Net' Bus. Week May 6, 1996 p 58.

29. OECD Guidelines on the Protection of Privacy < http://www.oecd.org/dsti/sti/it/secur/prod/priv-en.htm>.

30. D Rowland 'Cyberspace: A world apart?' 13th Annual BILETA Conference:The Changing Jurisdiction, Dublin, March 1998 <http://www.bileta.ac.uk/>, ITAA <http://www.itaa.org>.

31. W Wriston 'Bits, Bytes and Diplomacy' Foreign Affairs Sep-Oct 1997 P 172-74.

32. W Grossman 'Digital Diplomacy a Two-edged Sword' Daily Telegraph 1997 April 22 at 8, The UN Treaties < http://www.un.org/Depts/Treaty/>.

33. B Schmitt 'An Internet Answer to Repression' Wash. Post 1997 Mar 31 at A21.

34. John Raggie 'Territoriality and Beyond' 47 Int'l Org 139.


This is a Commentary published on 29 October 1999.

Citation: Zekos G, 'Internet or Electronic Technology: A Threat to State Sovereignty', Commentary 1999 (3) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/99-3/zekos.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1999_3/zekos/>


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