Law of the Sea – Law of the Internet: Inspiring Analogy?
Updated on 07 August 2022
On 19 June, Diplo and the Geneva Internet Platform held a panel that explored the potential analogy of the law of the sea with a possible law of the Internet, examining whether the latter could be considered as common heritage of mankind. The discussion was led by the former Minsiter of Foreign Affairs of Malta and an expert on the Law of the Sea, Dr Alex Sceberras Trigona.
The law of the sea has been frequently mentioned as a potential inspiration for the law of the Internet since early days of the Internet. More recently, it came into public focus, after the speech of the director of the NSA Admiral Rogers, NSA’s director, who even referred to the importance of regulating the Internet as global commons, as Internet’s openness should be valued as a shared public good. Diplo has been trying to reflect on some aspects of this analogy during the Malta Conference ‘The Internet as a Global Public Resource’.
According to Dr Sceberras Trigona, the analogy between the Internet and the sea can be found in several concepts, most importantly the tension between res nullius and res omnium. The discussion concerns whether the cyberspace is a res nullius – not the object of any legal regime – or a res omnium – regulated as a common property of mankind. Proponents of res nullius are usually the powerful players who can take advantage of the unregulated cyberspace, and until recently its main proponent was the United States.
Regulating the Internet as res omnium would be an ideal state. Nevertheless, there are different possible legal gradations in its application, ranging from merely being a ‘common concern’, to a ‘global public good’ and finally to being the common heritage of mankind. These gradations could possibly also be found within the cyberspace, with the root zone as being the most heavily protected.
Finally, Dr Sceberras Trigona touched on the challenges of the multistakeholder alternative and the need for a strong Internet regime with a strict division in its legislative, executive and judicial dimensions.
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