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Stewardship versus Sovereignty? International Law and the Apportionment of Cyberspace

Canada Centre for Global Security Studies, Cyberdialogue 2012: What Is Stewardship in Cyberspace?

Temple University Legal Studies Research Paper No. 2012-25

12 Pages Posted: 15 Apr 2012 Last revised: 13 Mar 2014

Duncan B. Hollis

Temple University - James E. Beasley School of Law

Date Written: March 19, 2012

Abstract

The 2012 Cyberdialogue Conference, hosted by the University of Toronto, asked the question 'What is Stewardship in Cyberspace'? This essay pursues that stewardship inquiry through the lens of international law. Existing debates on the nature of cyberspace have emphasized its suitability for governance by social norms, domestic law, or some combination of the two. Questions of international law — to the extent they are raised at all — have been limited to asking how (and how well) existing rules analogize to cyberspace. But international law also clearly has something to say about defining what kind of resource cyberspace is (or might become).

International law has long divvied up the world’s resources into categories, with different forms of governance for different types of resources. These categories suggest that a stewardship approach to regulating cyberspace could work. But doing so requires a critical assumption: that cyberspace is a shared resource (or one where individual interests are so comingled as to defy separation). That vision of cyberspace is not, however, universally held. Some deny that cyberspace is “space” at all, or insist that its resources can be (and are better off) apportioned to individual States. In particular, any use of the “stewardship” label for cyberspace governance will generate opposition from those who prefer to label cyberspace as subject to governance based on sovereignty. A contest pitting stewardship against sovereignty is likely to forestall, if not derail, agreement on any particular governance structure for cyberspace. Such a fight is not, however, inevitable. International law does not limit governing frameworks to those accompanying stewardship or sovereignty, but offers a spectrum of ways to regulate resources. This paper undertakes a brief survey of these hybrid approaches and suggests that — instead of fighting over what we should call cyberspace — a discussion of what behaviour we want to encourage (or prohibit) is a more appropriate starting point for future conversations about cyberspace governance.

Keywords: cyberspace, sovereignty, stewardship, high seas, antarctic, res commuins, res nullius, governance

JEL Classification: K30, K33, K39

Suggested Citation

Hollis, Duncan B., Stewardship versus Sovereignty? International Law and the Apportionment of Cyberspace (March 19, 2012). Canada Centre for Global Security Studies, Cyberdialogue 2012: What Is Stewardship in Cyberspace?; Temple University Legal Studies Research Paper No. 2012-25. Available at SSRN: https://ssrn.com/abstract=2038523

Duncan B. Hollis (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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