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Cyberspace and the Seas: Lessons to be Learned
by
MASSACHUSETTS INSTITUTE
OF TECHNOLOGY
Raymond K. Joe
B.S., Humanities and Engineering
Massachusetts Institute of Technology, 1990
M.Sc., Sea-Use Law, Economics, and Policy-Making
London School of Economics and Political Science, 1993
S.M., Technology and Policy
Massachusetts Institute of Technology, 1990
JUN 21 1999
LIBRARIES
9%n
SUBMITTED TO THE DEPARTMENT OF OCEAN ENGINEERING
IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF
MASTER OF SCIENCE IN OCEAN SYSTEMS MANAGEMENT
AT THE
MASSACHUSETTS INSTITUTE OF TECHNOLOGY
SEPTEMBER 1998
C 1998 Raymond K. Joe. All rights reserved
The author hereby grants to MIT permission to reproduce
and to distribute publicly paper and electronic copies
of this thesis document in whole or in part.
Signature of Author: ...............................
Department of Ocean Ei
eering
August 21, 1998
Certified by: ...............................
J.D. Nyhart
Management
and
an
Engineering
f
PrAccepted
by:..........................
Thesis Advisor
Accepted by: ................................
/
J. Kim Vandiver
Professor of Ocean Engineering
Chairman, Departmental Committee on Graduate Studies
Cyberspace and the Seas: Lessons to be Learned
by
Raymond K. Joe
Submitted to the Department of Ocean Engineering
on August 21, 1994 in Partial Fulfillment of the
Requirements for the Degree of Master of Science in
Ocean Systems Management
ABSTRACT
With computer science technology and the Information Superhighway, or cyberspace,
developing rapidly, information services and resources are playing an increasingly
fundamental role in everyday life. The question of rights over information is
correspondingly becoming more complicated as well. Regulation over cyberspace is
inconsistent, and continues to develop in piecemeal fashion, while the debate remains
unsettled whether cyberspace should be regulated at all. Currently no overall legal design
for cyberspace is in view. Meanwhile, recent studies report that self-regulation in
cyberspace has failed to protect even basic rights of privacy with respect to information.
An investigation was made to evaluate the 1983 United Nations Convention on the Law of
the Sea as a prototype for a cyberspace legal regime. The provisions for the high seas
were found to be readily adaptable for parallel rules for cyberspace. Likewise, the Part XI
provisions concerning the deep sea bed, provided for a very detailed organizational
framework from which an international and coordinated management of information
transactions in cyberspace may be pursued. The detailed provisions regarding settlement
dispute were almost directly applicable to cyberspace, with little if any modification. A
cyberspace legal regime modeled from the Law of the Sea would eliminate some of the
jurisdiction, accountability, and enforcement difficulties of Internet regulation.
Thesis Supervisor: J. D. Nyhart
Title: Professor of Ocean Engineering and Management
__
TABLE OF CONTENTS
Intro du ctio n ..............................................................................................................................................
I.
6
Developing a Context: International Law, the High Seas, and Cyberspace................................... 11
II. Private International Laws of the Sea and Electronic Trade................................
.................. 15
III. The Public International Law of the Sea................................................
IV. Reconfiguring the Law of the Sea for Cyberspace .....................................
22
........
28
General Provisions ..............................................
............ .......... 28
Article 87. Freedom of the Internet........................................................ 28
Article 88. Reservation of the Internet for Peaceful Purposes ........................
..................... 29
..................... 29
Article 89. Invalidity of Sovereignty over the Internet........................
Article 91A. Nationality of Cybernauts ..........................
...................... 30
............ 30
Article 91B. Nationality of Virtual Sites ...........................................
...................... 30
Article 92A. Status of Cybernauts..............................
Article 92B. Status of Virtual Sites...................................................... 30
Article 94. Duties of the Virtual Nationality State................................
...................... 31
Article 97. Penal Jurisdiction in Matters of Internet Incidents..................
....... 33
Article 27. Criminal Jurisdiction over Foreign Virtual Sites .......................
34
Article 100. Duty to Cooperate in the Repression of Piracy ........................................ 35
...................... 35
Article 101. Definition of Piracy................................
Article 103. Definition of a Pirating System ............................................
36
36
Article 105. Seizure of a Pirating System...........................................
36
Article 106. Liability for Seizure Without Adequate Grounds ..............................................
Article 117/118. Duty of States to Cooperate and to Adopt with respect to their Nationals
Measures for the Management of Cyberspace Resources ............................. 37
Part XI.
Section 2. Principles Governing Cyberspace ................................................. 38
................... 38
Article 137. Legal Status of Cyberspace ......................................
Article 138. General Conduct of States in Relation to Cyberspace ................................... 38
Article 139. Responsibility to Ensure Compliance and Liability for Damage ................... 38
......................
39
Article 140. Benefit of Mankind...................................................
.39
Article 141. Use of Cyberspace Exclusively for Peaceful Purposes............................
..... 39
Article 142. Rights and Legitimate Interests of States ....................
Article 144. Transfer of Technology.............................................. 39
40
.......
Article 145. Protection of the Virtual Environment ......................................
Article 147. Accommodation of Activities in Cyberspace and in the Virtual Environment .40
Article 148. Participation of Developing States in Activities in Cyberspace..................... 40
Article Al. Costs To States Parties And Institutional Arrangements ............................... 41
....................... 44
Section 4. The International Cyberspace Authority .......................
Subsection A . General Provisions .......................................................................................... 44
__ I
Article 156. Establishment of the International Cyberspace Authority............................ 44
Article 157. Nature and Fundamental Principles of the ICA.................................... 44
Article 158. Organs of the ICA .................................................
44
Subsection B. The Assembly...........................................
.................... 45
Article 159. Composition, Procedure and Voting ......................................................... 45
Article 160. Powers and Functions .............................................
46
Article A9. The Finance Committee................................................ 47
Subsection C. The Council...................................
.......................
49
Article 161. Composition, Procedure and Voting ...............................
.................... 49
Article A3. Decision-M aking .......................................
........... ........ 51
Article 162. Powers and Functions................................. ................... 53
Article 163. Organs of the Council................................... .................. 55
Article 164. The Economic Planning Commission .......................
.......................... 56
Article 165. The Legal and Technical Commission..............................
...
......... 56
Subsection D. The Secretariat ..................................................
58
Article 166. The Secretariat .............................................................................. ........... 58
Article. 167 The Staff of the ICA ......................................................... 58
Article 168. International Character of the Secretariat ...................................... ..... 59
Article 169. Consultation and Cooperation with International and Non-Governmental
Organizations..............................................
59
Subsection F. Financial Arrangements Of The Authority .................................................. 60
Article 171. Funds of the ICA ........................................................
........... .......60
Article 172. Annual Budget of the ICA ..................... ................................................ 60
................ 60
Article 173. Expenses of the ICA ......................................
Article 174. Borrowing Power of the ICA ........................
.....................
61
Article 175. Annual Audit .........................................................................................
61
....... 61
Subsection G. Legal Status, Privileges And Immunities ....................
61
Article 176. Legal Status.....................................................
Article 177. Privileges and Immunities ...........................................
61
Article 178. Immunity from Legal Process ........................................................ 61
Article 179. Immunity from Search and Any Form of Seizure .....................................
62
Article 180. Exemption from Restrictions, Regulations, Controls and Moratoria .............. 62
Article 181. Archives and Official Communications of the ICA ..................................... 62
Article 182. Privileges and Immunities of Certain Persons Connected with the ICA........... 62
Article 183. Exemption from Taxes and Customs Duties.................................
...... 63
Subsection H. Suspension of the Exercise of Rights and Privileges of Members .................... 63
...... 63
Article 184. Suspension of the Exercise of Voting Rights................................
Article 185. Suspension of Exercise of Rights and Privileges of Membership ..................... 63
Section 5. Settlement Of Disputes And Advisory Opinions .................................................... 64
Article 186. Cyberspace Disputes Chamber of the International Tribunal for the Law of
64
Cyberspace .........................................
Article 187. Jurisdiction of the CDC of the International Tribunal for the Law of
...... 6 4
Cyb erspace ........................................................................................
Article 188. Submission of Disputes to a Special Chamber of the International Tribunal for
the Law of Cyberspace or an Ad Hoc Chamber of the CDC or to Binding
Commercial Arbitration .......................................... ............... 65
Article 189. Limitation on Jurisdiction with Regard to Decisions of the ICA................... 66
Article 190. Participation and Appearance of Sponsoring States Parties in
......................... ........ 66
Proceedings ................................................
Article 191. Advisory Opinions.................................................... 67
Part XV. Settlement of Disputes................................
.....................
Article 287. Choice of procedure ........................................
................
Article 288. Jurisdiction ..............................................
Article 290. Provisional measures................................
......................
Article 292. Prompt release of virtual sites and personnel ....................
.......
Article 297. Limitations on applicability of section 2 ...................................................
67
67
68
68
69
69
Part XVI. General Provisions ........................................
70
..................
Annex V . Conciliation .......................................................................
........... 71
Annex VI. The International Tribunal for the Law of Cyberspace............................................
Article 14. Cyberspace Disputes Chamber ........................................
........................
Article 19. Expenses of the Tribunal....................................................
Article 25. Provisional measures............................................
Annex VII. Arbitration........................................................
Annex VIII.
Article 1.
Article 2.
Article 5.
...
....... 72
Special Arbitration ........................................
................
Institution of proceedings ................................................
Lists of experts....................................................................
Fact finding .........................................................
V. The Proposed Legal Regime............................................
CONCLUSION....................
........................
...........
71
71
71
71
72
72
72
72
............ 73
.................................. 79
Appendix A. United Nations Convention on the Law of the Sea Part XV...................................
85
Appendix B. United Nations Convention on the Law of the Sea Part XVI ............................................ 95
Appendix C. United Nations Convention on the Law of the Sea Annex V....................................
. 97
Appendix D. United Nations Convention on the Law of the Sea Annex VI ..................................... 101
Appendix E. United Nations Convention on the Law of the Sea Annex VII ....................................
113
Appendix F. United Nations Convention on the Law of the Sea Annex VIII ...................................
117
_
INTRODUCTION
While law enables both the development of new technologies and their adoption by
the public, the development of law generally lags behind technological progress. Internet
law is no exception. In a very short period, the Internet has radically changed the way
people communicate and function, both personally and professionally. To utilize and
benefit better from the information superhighway, we must be able and willing to
accommodate legally the changes brought by this fast-rising technology.
This paper attempts to examine security issues and law in cyberspace by looking to
what is arguably the first global frontier, the high seas. The electronic frontier, though
likened by some early enthusiasts to the "lawless" "Wild West" of American legend, is
today more aptly compared to the high seas. Each has provided a means to close the
isolating, geographic gaps between lands. For centuries, global information exchange was
a primary function of the high seas. Functionally, the Internet has redefined the
boundaries of human interaction, specifically with respect to information communication.
Like cyberspace, the high seas are a global commons. Both commons house great, global
resources. Both exist outside of national jurisdictions. Both even have been plagued by
cruising pirates.
In cyberspace, distance and physical barriers are effectively meaningless. When a
computer network user-or, simply, user, or cybernaut-logs in to the Internet, (s)he
becomes part of a network that extends globally with computers in perhaps the next room
and in another country. A network is any group of people connected by computers to
share information.2 The Internet is an interconnection of thousands of separate networks
worldwide. It was developed by the US Federal government to link government agencies
along with colleges and universities and has expanded to include thousands of companies
1 Churchill, R. R. and A. V. Lowe, The Law of the Sea, Manchester University Press, Manchester, UK,
1988: 2.
2 Unisys. "Information Superhighway Driver's Manual." URL:
<http://www.unisys.com/Oflnterest/Highway/highway.html>.
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and millions of individuals. 3 The Internet is the working framework from which the
Information Superhighway, or I-Way, has developed and continues to develop. Another
term for the I-Way, coined in 1984 by William Gibson in his science fiction novel,
Neuromancer, is cyberspace. We use it here to refer to the network of electronic
computer networks that is fast becoming more and more a part of all our activities and
interactions in the physical world, from providing the latest stock market figures to
providing a means for family members to stay in contact over great physical distances.
Finally, the term "virtual" is used in this paper to refer to the electronic environment
configured by cyberspace in which we, through computers, visualize, manipulate, and
interact with the information we are exchanging. 4
Though, we may be far from realizing Gibson's Neuromancer world, in 1997,
information technology (IT) was responsible for more than one-quarter of the United
States' total real economic growth in each of the last 5 years; the overall inflation rate
would have been 3.1 percent but growth in IT lowered it to 2.0; meanwhile, total
corporate investment in IT rose to 45 percent. 5 Cyberspace is a developing vision for the
future of the Internet, to extend its public availability to each individual home, to enable
electronic commerce, to provide health and medical information, to order take-out
restaurant food-the list is unbounded. We construct virtual mailboxes for our electronic
correspondences, virtual classrooms for online education, virtual stores from which to
shop, and virtual space in which to expand our electronic visions. Though almost
nonexistent five years ago, network commercialization includes personalized news report
subscriptions, retail consumer goods and services, as well as database information
resources. As with physical goods, the value of information and information-based
products and services changes depending on environment, region, or country.
3 Id.
4 Isdale, Jerry. "What is Virtual Reality? A Homebrew Introduction and Information Resource List."
Version 2.1, Oct. 8, 1993. URL: <ftp://sunee.uwaterloo.ca/pub/vr/documents/whatisvr.txt>.
5 The Emerging Digital Economy, Chapter 1 The Digital Revolution, The United States Department of
Commerce. URL: <http://www.ecommerce.gov/digital.htm>.
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With the growth of electronic trade, consumers have been calling for regulation. 6
Regulation, however, is complicated because it conflicts with the laissez-faire philosophy
embraced by users at the Internet's inception. The laissez-faire principle that
characterized the formation of the Internet is reflected in the Internet's technological
configuration of networks, the management of which has been decentralized, with little or
no monitoring of information exchange. Without such monitoring, safeguarding
information from wrongful appropriation or use has been problematic. Regulation is
further complicated by Internet technology itself. Who, for example, has property rights
to what would be regarded in physical form as personal information when that information
is created, transmitted, and stored electronically and access to it is only possible by
physical machines, computers and terminals that may not be owned by the person in
question? 7
To illustrate this further, consider perhaps the most pervasive use-to-date of the
Internet: electronic mail, or email. Like the telephone before it, email has become a
standard means of communication. Email in fact is often a substitute for the telephone and,
though their technologies are not the same, many parallels may be drawn: both
communicate information without a physical rendering or "hard copy"; both allow for real
time exchange of information and information response; both can store information for
later reproduction or re-transmission, etc. Legally, email has raised the issues of
ownership and right to privacy. Through ownership of the computer hardwaredatabases and terminals--by which email messages are received and stored, private
companies are claiming proprietary ownership rights over email messages received by their
employees. Through this ownership claim, some companies forbid personal email
messages, ostensibly to conserve computer resources, and employees are made aware that
email messages are not secure or confidential.
6 Federal Trade Commission, "Conclusions," Online Privacy: A Report to Congress, June 1998. URL:
<http://www.ftc.gov/reports/privacy3/conclu.htm>.
7 Branscomb, Anne Wells. "Chapter 5: Who Owns Your Electronic Messages?" Who Owns
Information? From Privacy to Public Access.... New York: Basic Books, 1994: 92-103.
__
This claim goes against established conceptions of ownership and privacy in
communications prior to the Internet. While a company might discourage personal
telephone calls during regular business hours, an outright ban would likely be considered
intolerable as unreasonable intrusion. Consider, for example, telephone calls, and email
exchanges, after working hours. Ownership of office telephones and transmission cables
are not recognized as a basis for ownership of the telephone conversations transmitted.
Nor does infrastructure ownership automatically allow monitoring or intrusion into
telephone conversations or telephone messages recorded on answering machines. The
right to privacy on the telephone may be defended by an expectation of privacy in one's
telephone conversations. This argument is nullified perhaps with respect to email, by
corporate declarations to employees that email is neither a secure nor confidential means
of communication. The controversy, however, does not end there: employees continue to
claim and object to privacy invasion; conferences and political action movements continue
to be mounted as well.
The telephone example illustrates that physical world analogues do exist for
electronic scenarios. Moreover, discrepancies in a person's rights between the two
environments are confusing, contentious, and counterproductive. Security issues involve
privacy, property, and jurisdiction rights. Existing laws must be analyzed for their physical
context in order to adapt or abandon them for cyberspace. Should, for example, national
jurisdictions be recognized in any way at all? Likewise, while the appropriateness of
property law for cyberspace may be clear in principle, the application of physically based
definitions of property is not. We must be willing and able to create new legal constructs
where our physically based ones are inapplicable. At the same time, the nonphysical
nature of cyberspace is not in itself a justification to overturn settled questions of law;
whenever it is contextually appropriate, the law of the physical world must be regarded at
least as quasi-precedent in cyberspace. In other words, the efficient development and
adoption of Internet law requires an engineering of sorts to extend our laws into
cyberspace.
This paper suggests that the high seas provide a useful prototype towards that end,
focusing on cyberspace security issues. Part I develops a context for discussion of
international law, the high seas, and cyberspace. Part II reviews the state of private
international law with respect to high seas trade, identifying accountability and
enforcement as key issues for the developing utilization of the Internet for high seas trade,
and electronic commerce in general. Part III discusses the public international legal
regime for the high seas regime, its development, and specific provisions of the United
Nations Convention on the Law of the Sea (LOS) that may be useful for the development
of cyberspace law. Part IV proposes a reconfiguration of the LOS to arrive at a regime
for cyberspace law. Part V is a discussion of this reconfiguration before concluding with
some general observations and recommendations.
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I.
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Developing a Context: International Law, the High Seas, and Cyberspace
Natural law, orjus naturale, was widely held, by the Roman jurists of the
Antonine age, to be rules that are rooted in man's nature, or the entirety of his mental,
moral, and physical constitution. s As such, natural law exists whether or not it is
incorporated by a system of enacted law or State practice. According to the
intellectualism of the Renaissance and Reformation, natural law was deduced by rational
intelligence, and considered of greater importance than State practice which may be
characterized as the "voluntary law of nations."'
International law in general was reasoned to be based on principles of natural law.
Likewise, freedom of the high seas was reasoned to be a natural right of man. In his Mare
Liberum, Hugo Grotius, commonly regarded as the father of modern international law,
drew on reasoned laws of nature to uphold the doctrine of the freedom of the seas against
Portuguese claims to monopoly over trade in the Far East. 10 Until the end of the 19t
century, the high seas were open to free and unrestricted use to all. The seas in general
were largely subject to a laissez-faire regime, which allowed the then dominant European
powers to pursue their main maritime interests in communication with their colonies and
seaborne trade. 1"
Like the seas, communication is the fundamental facet of the information
superhighway. Advocate calls to maintain a libertarian cyberspace are remindful of longheld arguments for the freedom of the high seas as a natural right of man. The new
freedoms of communication that underlie the innovation, or revolution, brought by the
Internet have been based on a laissez-faire access. Early cybernauts made laissez-faire a
working credo of the Internet. They imagined a space of unhampered freedom,
8 "Natural
law," Black's Law Dictionary,
9 Churchill supra note 1 at 3.
10 Id.
11Id.
at 2.
th
6 edition,
West Publishing Co., St. Paul, Minn., 1991.
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unrestricted by government and unencumbered by laws. From this pioneer mentality grew
the Internet expressions "the electronic frontier," "the information superhighway," and
"surfingthe net." These images are drawn from the folklore of the untamed American
Wild West, of the open road or road-tripping mobility, and from surf culture, a modern
derivative of sailing freely on the high seas.
While maritime trade on the high seas fostered a laissez-faire regime, the growth
of electronic trade has promoted electronic security concerns that have spurred the
Internet towards regulation. But the 20 th century has also moved the law of the high seas
towards regulation. Modern technologies have dramatically changed the use of the sea:
the modern supertanker created a global, marine environmental pollution hazard; the
continental shelf has became readily accessible and exploitable for its resources; trawlers
and distant-water fishing fleets, including on-board processing plants, have jeopardized
fisheries that before were considered inexhaustible. As a result, laws for the seas have
developed following a more functional rather than strictly jurisdictional course. 12 This
functionality has often taken the form of legal protections to ensure the preservation of the
seas and all of its uses.
The 20 th century also brought changes in the treatment of international law,
including law for the seas. With the rise of political theories against absolute monarchies,
international law became viewed more as voluntary obligations that States actually
assumed rather than rationalized, absolute ideas about what States should or must do,
regardless of their will.'13 As a reflection of this, Article 38 of the Statute of the
International Court of Justice directs the Court to apply international conventions, as well
as international customary law, in deciding international disputes brought before it. 14
12 Id.
13 Id. at 4.
14 Id.
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An international convention establishes explicit rules that allow modification of
duties and/or responsibilities of customary law; also known as a treaty, an international
convention only binds those States that are parties to the treaty. An international
convention often requires ratification, in addition to signature, by State parties; a
multilateral convention may require a minimum number of ratifying States before the
treaty enters into force. International convention and international customary law overlap
where convention provisions embody customary law. International conventions and
international customary law also overlap where convention provisions pass into customary
law. Such provisions thus become binding on States that are not party to the convention
but that act in manner evidencing belief that the rule at issue represents customary law.
Formally, two elements are required for a showing of international customary law:
first, a general, consistent practice adopted by States; second, opiniojuris,15 a conviction
that the practice is either required or allowed by customary international law. Opiniojuris
prevents 'rules' of comity from becoming rules of law. For example, red carpets for
visiting heads of State or restraint in enforcing coastal State laws against foreign ships
passing through territorial waters both satisfy the first requirement and not the second. By
contrast, continental shelf rights passed into customary law due to many State claims and
the general belief that those claims are permissible in international law. In principle,
international customary law is binding on all States. There is a presumption that States
have assented, or consented, to that which States in general have assented. However, like
rights created by convention, State consent ultimately determines State obligation;
customary law is binding unless a State can show that it is apersistentobjector to the
customary law at issue. In fact, a State is also bound by a rule that is not generally
accepted if that State has consented to that rule.
The continued movement towards rigor in modern international law is evidenced
today by the growth in importance and effectiveness of the United Nations (UN). This
15 Id. at 5-6.
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increased UN significance was arguably heralded by the United Nations Convention on the
Law of the Sea (LOS). The LOS represents over 14 years of work' 6 and has been
described as "a monument to international co-operation ...[for which] the international
community expressed its collective will ... on a scale the magnitude of which was
unprecedented in treaty history."17
Such international cooperation and collective action is required to secure the
Internet for electronic commerce. Technologically, continued advances should enable the
Internet to provide faster access to more and more information at lower costs. This
progress, however, has already resulted in a proliferation of incompatible network
systems. The Internet is developing not toward a unified space but toward a virtual chaos.
If this continues, the costs of overcoming communication barriers may exceed the benefits
of virtual participation. Individual entities-companies-may benefit greatly from this
confusion but development of cyberspace itself would suffer. In a competitive
environment in which multiple actors participate in non-compatible ways, uniformity is
typically achieved either by one player emerging as dominant-as did Microsoft-Intel and
IBM-compatible personal computers-or by the creation of a public standard-such as
the 200 mile Exclusive Economic Zone. If one should prove more efficient or profitable
than the others, a dominant data standard or network configuration could very well
emerge from the chaos to satisfy compatibility concerns. However, competing national
sovereignties, and the possibility of virtual escape from any or all of them, suggest that any
legal guarantees in cyberspace will likely need to be created.' 8
16 United
Nations Convention on the Law of the Sea, The Law of the Sea, United Nations, New York,
1983, p. xix.
17 Id.
8See "Conclusions," Online Privacy: A Report to Congress, Federal Trade Commission, June 1998.
URL: <http://www.ftc.gov/reports/privacy3/conclu.htm>. See also "LEAVING INDUSTRY TO
"REGULATE" ITSELF WILL WORSEN PRIVACY INVASIONS, EXPERTS SAY," Washington, DC,
June 22, 1998. URL: <http://wwwjunkbusters.com/ht/en/nrlO.html>.
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II.
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Private International Laws of the Sea and Electronic Trade
International law may be divided into two categories: public and private. Private
international laws are concerned with individual entities, such as a citizen or a corporation.
One example of private international law would be the treaties and customs by which
countries recognize another country's passport and the treatment afforded foreign
passport holders. Another example is the set of rules and regulations to which an
individual is subject when conducting trade internationally. Electronic commerce has
created security issues that are not unlike fundamentally those which have concerned
international shippers since seaborne trade began. In fact, the methods that seaborne trade
has used to answer security concerns on the high seas may be applied to electronic trade in
cyberspace.
It is not surprising, therefore, that there has already been great movement towards
paperless, electronic information transfer for shipping. For example, the Information
Systems Agreement (ISA) represents 50 percent of all global ocean transportation volume,
over 400 container ships and barges, more than 1.4 million TEUs, and more than 300
major port destinations. ISA members are major ocean carriers, including American
President Lines, Crowley American Transport, Hapag-Lloyd, "K" Line, Maersk, Mitsui
O.S.K. Lines, Orient Overseas Container Line, P&O Nedlloyd Containers, Sea-Land
Services, Inc. and Yang Ming. ISA members use a single communications standard for
Electronic Data Interchange (EDI), as well as a single software product for freight
booking, document exchange and shipment tracking information. 19
Obviously, the technology and services are available and in use. The transition to
paperless shipping, however, has been slowed by customary shipping practices and the
lack of well-developed law for electronic commerce. With respect to the first factor,
education of the shipping community is required to replace old shipping practices, like
--
_
post-departure filing of the Shipper's Export Declaration (SED), with new ones. If, for
example, the American shipping community can make the transition to a standard predeparture filing of SEDs, the United States' Automated Export System (AES) allows for a
single filing of export documentation, compared to the traditional multiple filings of the
same information to various government agencies. 20 This elimination of paper processing
inefficiencies will save billions of dollars for businesses and governments. 2 1 The present
global cost is estimated at $400 billion each year, or about 7% of the value of world
trade. 22 Still, less than 1% of all exports make use of the AES. Only 36% of freight
forwarders and 32% of other exporters even plan to use the AES. Twenty-five percent of
freight forwarders and 22% of other exporters have never even heard of the AES. 23
Education of the public is thus a key component for integrating the Internet with the nonelectronic world.
The second impedance to the establishment of paperless shipping-the lack of
well-developed law for electronic commerce-cannot be addressed by education alone.
The United Nations Commission on International Trade Law (UNCITRAL) drafted a
Model Law on Electronic Commerce (MLEC) in 1996; however, the MLEC remains a
very bare framework which outlines the development that needs to take place for a robust,
functional electronic commerce law. As an example of the complications that the
electronic frontier poses for law, we consider one of the most detailed provisions of the
MLEC, Article 15: Time and place of dispatch and receipt of data messages. 24 Traditional
Anglo-American contract law has a 'deposited acceptance' rule. This so-called 'mailbox
19 Information
Systems Agreement, Common Multi-Carrier Information Exchange, URL:
<http://www.isaweb.com/>.
20 Buxbaum, Peter A., "AES: Boon or boondoggle?," The Atlantic Journal
of Transportation, Issue #101,
December
8, 1997, p. 1, 12A.
21
Woods, Charles A., Sharon A. Mazur, AUTOMATED EXPORT SYSTEM, Reducing Respondent
Burden Through The Electronic Integration of Business and Government Information Requirements,
URL:
<http://www.census.gov/foreign-trade/aes/arc.html>.
22 Bolero,
URL: <http://www.
ttclub.nsf/ByKey/JMUS-3TCLCH?OpenDocument>.
23 Buxbaum, supra note 20.
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rule' states that an offer is effectively accepted once the acceptance is properly posted.
Meanwhile, an offer is revoked, not when the revocation is posted, but when it is
received. 25 For contract offers and acceptances made virtually, MLEC Article 15 suggests
that the posting or dispatch of a data message occurs when the data message enters an
information system outside the control of the message originator. 26
Time of virtual receipt of a data message is more complicated. In the case where
the message receiver designates an information system, receipt occurs at the time when the
data message enters that designated information system. If the data message is sent to an
information system owned by the message receiver but not the designated one, receipt
occurs at the time when the data message is retrieved by the addressee. If the message
receiver has not designated an information system, receipt occurs when the data message
enters the message receiver's information system. 27
As for location, a data message is deemed to be electronically dispatched/received
at the place where the originator/addressee has its place of business; or, if there is more
than one business site, at the place of business which has the closest relationship to the
underlying data transaction; or, if there is no business underlying the data transaction, at
the principal place of business; or, if there is no place of business, at the
originator/addressee's habitual residence. 28
The above configuration is precisely complex in order to establish accountability in
the virtual plane. Accountability is an essential concern of security issues in cyberspace,
where the medium's power to almost instantly duplicate and disseminate information is the
very source of the difficulty to discern or assign accountability there. When international
seaborne traders faced the issue of accountability on the high seas, they devised a shipping
24 UNCITRAL
Model Law on Electronic Commerce (1996), URL:
<http://itl.irv.uit.no/trade_law/doc/UN.Electronic.Commerce.Model.Law.
1996.html>.
25
26
Knapp and Crystal, Problems in Contract Law, 3 dEd., Little, Brown, and Company, 1993, p. 51-68.
UNCITRAL supra note 24.
27 Id.
1 11
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instrument called a bill of lading (BOL). A BOL is a receipt for cargo. A clean BOL is
issued when cargo is received undamaged, complete, in good order. An on boardBOL is
signed by the master of a vessel, or his representative, certifying that the cargo has been
placed aboard. On board BOLs are usually required for the shipper to obtain payment
from a bank in letter of credit transactions. An inlandBOL documents the transportation
of cargo between the port and the point of origin or destination. It generally contains
information such as marks, numbers, steamship line, and similar information to match with
a dock receipt. 29
A BOL is also a contract for transportation between a shipper and the ocean
carrier. In fact, the BOL is the pivotal contract in the international transaction of cargo. 30
Unlike SEDs and other 'pieces of paper' that change hands in the shipping process, BOLs
do not just convey information; they also prove cargo ownership. As such, they, and not
just the information they convey, have value in and of themselves. BOLs are negotiable;
they can be bought, sold, or traded.31 With an average consignment value of $37,500, the
value of a single bill of lading (BOL) can be as high as $60 million. 32 Legally, bills of
lading are a potential source of massive fraud. This is compounded in the case of an
electronic BOL (EBOL) that as yet cannot be supported by established law. For example,
there are no complete rules, or cases to look to for guidance, to distinguish a legitimate or
forged EBOL if cargo ownership is in dispute.
The technical problem is simple: verification of ownership of the EBOL. One
solution prototype is called Bolero. Bolero uses EDIFACT standard data messages and a
28 Id.
29 Ocean Bill of Lading, URL:
<http://www.tradecompass.com/library/books/terms/OceanBillofLading.html>.
30 The Legal Implications of Electronic Commerce in International Trade : The Electronic 'Bill of
Lading,' The Bolero Project, URL:
<http://www.boleroproject.com/bolero.nsf/022225602d9467428025648a0027ced9/3e2468262cd738a8802
566110051692f?OpenDocument>.
31 Ocean Bill of Lading supranote 29.
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central registry records the Bolero Bill of Lading (BBL) holder at any given time. [see
Figure 1.] To pass title, the BBL holder sends to the Registry a request to transfer the
BBL title to a proposed new title holder. The Registry then passes this request to the
proposed new title holder. If accepted, the Registry is notified and the Registry transfers
title of the BBL to the new holder. Every message regarding the BBL is secured by a
digital signature security system.33
The three main characteristics of digital signatures are integrity, authentication,
and non-repudiation. 34 Integrity ensures that data has been untouched since its signing.
EBOLs demand data integrity to ensure that the content of the BOL is not altered.
Authentication provides proof of the data source, to verify the authenticity and identity of
the BOL and its holder. Non-repudiation, in the context of Internet (or Intranet) security,
is the ensuring that someone cannot deny involvement in an electronic transaction; for
example, if someone were to send an electronic message stating acceptance of an EBOL
title, the sender could not later deny that acceptance.
32
Nilson, Ake, "The paper bill of lading unravels with Bolero," URL:
<http://www.ttclub.com/ttclub/bolero.html>.
33 Id.
34 Encryption
and Digital Signatures, URL: <http://www.frontiertech.com/Products/e-
Lock/Document/elockoverview/4.HTM>.
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Electronic Bills of Lading
BOLERO
Shipper electronically sends
shipping instructions to carrier.
If shipper confirms
acceptance of BBL,
shipper = 1st Holder
- R REGISTRY
Carrier turns date
intn
Bolero Bill of Lad ing
(BBL)
s.ts 1n rfeo.nrd
with unique
consignment
reference number.
Figure 1. THE BOLERO BILL OFLADING SYSTEM
While Bolero's communication and document management system would seem to
have accomplished user accountability, the problem of accountability enforcement cannot
be answered by technology alone. In the physical world, private international law, trade
regulations and customary practices have provided the enforcement to realize this
accountability. To utilize Internet advantages for high seas trade, electronic Bolero BOLs
have resorted to a required voluntarily assumption of binding legal responsibilities and
obligations to compensate for the lack of established cyberspace law. Thus Bolero
requires all users to agree to a legally binding regime established by a Bolero Rule Book.
_ _ _
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The Rule Book sets out a multilateral contract that defines user roles and responsibilities
to guarantee delivery, availability, and proper execution of users' particular instructions.
The Rule Book also establishes a uniform liability policy to protect users' underlying
business interests and promote user confidence in Bolero. 35
Because accountability and its effective enforcement are fundamentally questions
of security, it follows that security in general on the Internet may be accomplished in ways
similar to that of electronic BOLs. This suggests that to address Internet security
concerns, we should consider a legally binding regime for cyberspace set out by a
multilateral treaty, the goal of which is to establish legal accountability for cybernauts,
including a consistent liability mechanism to address user concerns and promote user
confidence. While the range of interests and concerns might discourage some from
entertaining ideas for such development, we have already accomplished such a broadly
issue-encompassing treaty for the seas.
35 "Completing the Puzzle," Introduction, The Bolero Service Business Requirements Specification,
Version 1.0, 1997. URL:
<http://www.boleroproject.com/bolero.nsf/022225602d9467428025648a0027ced9/ed9lcf717f516f688025
6535004e00f8?OpenDocument>.
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III.
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The Public International Law of the Sea
Public international laws involve international relations between independent
countries, such as the United Nations Convention on the Law of the Sea (LOS). Because
the Internet has developed as a frontier for independent, individual users, private
international laws may prove more germane for the development of Internet law than any
public international law. This, however, does not diminish what the LOS may also
contribute. The LOS, after all, has immediate impact on individual users of the sea: 36
fishermen, marine researchers, shippers, passengers, crew. In this Part, we examine the
ways that international law has answered the legal challenges arising from security
concerns on the high seas.
The first United Nations Conference on the Law of the Sea (UNCLOS) was held
in Geneva in 1958 and produced four conventions. The Convention on the Territorial Sea
and Contiguous Zone, the Convention on the High Seas, and the Convention on the
Continental Shelf were largely based on customary law and, as such, drew wide support as
generally accepted rules of law. The Convention on Fishing and Conservation of Living
Resources was less popular because it went beyond customary practice. 37 UNCLOS
failed to negotiate the breadth of the territorial sea, an issue which defeated an earlier
1930 conference to codify the international law of the sea, held by the League of
Nations.38 In 1960, the second United Nations Conference on the Law of the Sea
(UNCLOS II) also failed, by one vote, to answer the breadth of territorial sea question, as
well as the related question of fishery limits. 39 As formal statements embodying much preexisting customary law, the UNCLOS Conventions form the basic legal regime for the law
of the seas. Formally, States party to those conventions are bound until they denounce
them or until they become party to the LOS. At the same time, however, the UNLCOS
36 Churchill supra note 1 at 1-2.
37
Id. at 13.
38 Id. at 13-14.
39 Id. at 14.
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Conventions' provisions are being replaced by LOS provisions as the LOS provisions pass
into customary international law.
The third United Nations Conference on the Law of the Sea (UNCLOS III) began
in late 1973.40 The goal of UNCLOS III was to establish a "comprehensive regime
'dealing with all matters relating to the law of the sea, . . . bearing in mind that the
problems of ocean space are closely interrelated and need to be considered as a whole."'41
One hundred fifty States participated in the conference that became a political rather than
a narrowly legal enterprise. Many interests were represented, most notably that of
developing States known as Group 77. Other interests included Western capitalist States,
Eastern socialist States, land-locked and geographically disadvantaged States, archipelagic
States, coastal and maritime States, and straits States. There were three committees. One
was formed to work on a legal regime for the deep sea bed. Another addressed issues
involving the territorial sea and contiguous zone, the continental shelf, the exclusive
economic zone, the high seas, and fishing and conservation of living resources of the high
seas. The third committee handled preservation of the marine environment and scientific
research. The resultant United Nations Convention on the Law of the Sea (LOS) of
December 10, 1982 entered into force on November 16, 1994.42
Article 87 and 89 of the LOS codify the rule of customary law and a cornerstone
of international law43 : the high seas are open to all States and subject to no State's
sovereignty or jurisdiction. Freedom of the high seas includes freedom of navigation,
freedom of overflight (by air), freedom to lay submarine cables and pipelines, freedom to
construct artificial islands and other installations as permitted by international law,
40
United Nations Convention on the Law of the Sea, The Law of the
Sea, United Nations, New York,
1983, p. xxii.
41 Id. at xix.
42 Convention on the Law of the Sea, Oceans and the Law of the Sea, Division for Ocean Affairs and the
Law of the Sea, Office of Legal Affairs, United Nations. URL:
<http://www.un.org/Depts/los/losconvl.htm>.
43 Churchill supra note 1 at 165.
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freedom of fishing, and freedom to conduct scientific research. 44 Freedom on the high
seas is not perfect, however, as stronger States are often able to insist that their own
preferences are honored by weaker States. For example, The United States and the
United Kingdom carried out nuclear testing in the Pacific in the 1950s 45 but such exercises
on the high seas, by, say, India or Pakistan, would likely not be tolerated by the
international community today.
Public order is achieved on the high seas through accountability by nationality. In
general, ships are granted nationality by a country whose flag the ship then flies. Each
State sets its own requirements or conditions that a ship must meet to be granted
nationality. While Article 91 of the LOS, as well as Article 5 of the High Seas
Convention, requires a "genuine link" to exist for a ship to fly the flag of a State, the legal
requirement has had little effect in practice. Genuine link is difficult to establish where, for
example, ships are owned by multinational companies. State adherence to this rule has
been inconsistent. Countries that have complied, like Portugal, Norway, and France,
usually require some fixed proportion of the ship's owners and/or crew be nationals of the
State for which a flag is sought. 46 Countries that have not complied with the "genuine
link" requirement, like Liberia, Panama, Cyprus, and Singapore, are generally known as
'flag of convenience' or 'open registry' States. Flags of convenience may be attractive
because they usually require lower fees, taxes, crew wage and manning levels, and
sometimes even lower required compliance with international safety standards. Flags of
convenience are also known to be unreliable in matters concerning pollution control and
shipping safety, including crew qualification standards. 47
44Article 87, United Nations Convention on the Law of the Sea, The Law of the Sea, United Nations,
New York, 1983, p. 31.
45 Churchill supra note 1 at 167.
46 Id. at 206.
47 Id.
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A ship is allowed to fly only one country's flag.4 8 If a ship holds more than one
State's flag, it will be considered a ship without a flag or nationality in any international
dispute or conflict that may arise.49 This is significant because a ship enjoys the diplomatic
protection of the country whose flag the ship flies. In fact, in general, a ship on the high
seas is under the exclusive legislative and enforcement jurisdiction of its flag State. A
State becomes responsible for the ships that fly its flag. Under the LOS, Article 94, States
have duties to keep a record of all ships that fly its flag, to effectively control their conduct
on the high seas including their rendering of assistance to ships in distress, and to ensure
their seaworthiness and safe operating conditions and practices in accordance with
generally accepted international standards. Some duties of a flag State are quite specific.
Article 113 and 114 of the LOS require a State to ensure compensation for submarine
cables and pipelines that are damaged by ships or persons, respectively, under the State's
jurisdiction; correspondingly, by Article 115 of the LOS, a State must also ensure that
ships are compensated if they must sacrifice an anchor or fishing gear in order not to
damage a cable or pipeline
In the event of a collision or any navigation incident on the high seas, in general
only the flag State may arrest or detain one of its own ships. Likewise, any penal or
disciplinary proceedings against a crew member of a ship may be instituted only by
authorities of the flag State, or the State of which the crew member is a national, though
flag state jurisdiction is considered as primary in cases of concurrent jurisdictions.
Similarly, in matters concerning a master's certificate or license, only the issuing State may
revoke or withdraw such certificates, after due legal process, regardless of the nationality
of the certificate holder.
48 Article 92(1), United Nations Convention on the Law of the Sea, The Law of the Sea, United Nations,
New York, 1983, p. 31.
49 Article 92(2), United Nations Convention on the Law of the Sea, The Law of the Sea, United Nations,
New York, 1983, p. 31.
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Unfettered freedom on the high seas and exclusive flag State jurisdiction over ships
on the high seas are subject to a few restrictive rules. Slave trading and illicit traffic in
narcotic drugs or psychotropic substances are prohibited on the high seas. Unauthorized
television and radio broadcasting intended to be received by the general public, is also
prohibited on the high seas, except for distress calls. By customary law since the era when
European powers sought to protect their shipping links to their colonies, every State also
has a duty to act to suppress piracy. 5 0 The LOS defines piracy as any illegal act of
violence, detention, or depredation on the high seas, or outside any State's jurisdiction,
committed for private ends by the crew or passengers of a private ship or aircraft, against
another ship or aircraft or its persons or property on board; piracy includes any intentional
participation or facilitation of such acts. 51 Any act of violence, detention, or depredation
by a State vessel is, by definition, governmental action and not an act of piracy unless it is
perpetrated by a crew that has mutinied and taken over the State ship. Piracy also requires
that at least two ships-a pirate ship and a victim ship-be involved. Acts of violence,
detention, or depredation involving a single ship are distinguished from piracy as hijacking.
Thus a mutinying crew hijacks its own ship but only commits piracy when they attack
another ship.
A State warship may board a foreign ship if the warship has reasonable ground to
suspect that the foreign ship on the high seas is engaged in piracy or unauthorized,
"pirate" broadcasting. If the suspicion proves true, in these two cases, the LOS grants
States both legislative and enforcement jurisdiction over the ship and those on board, in
concurrence with flag State jurisdiction. 52 Warships may also board a foreign ship
suspected of slave trading but only a slave trading ship's flag State may arrest the slave
50 Churchill supra note 1 at 169. Article 100, United Nations Convention on the Law of the Sea, The
Law of the Sea, United Nations, New York, 1983, p. 33.
51 Article 101, United Nations Convention on the Law of the Sea, The Law of the Sea, United Nations,
New York, 1983, p. 34.
52 Article 105, 109, United Nations Convention on the Law of the Sea, The Law of the Sea, United
Nations, New York, 1983, p. 34, 35.
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trading ship or those on board. 53 If a slave escapes and takes refuge on board a ship, the
slave becomes ipsofacto free. For a ship suspected of illicit drug traffic, only its flag State
has jurisdiction, unless the flag State requests other States for aid. 54 A warship may also
board a ship on the high seas if the warship reasonably suspects that the ship to be boarded
is of its same nationality; the warship may board such a ship to verify its nationality. 55 As
in any case of a warship boarding based on suspicion, if the suspicions are without
reasonable grounds, the detained ship has the right to compensation for any resultant loss
or damage sustained. A ship without nationality is not automatically subject to any State's
jurisdiction but if a State does attempt to exercise jurisdiction over a ship without
nationality, by definition no other State has a right to object to such an exercise. At the
same time, States of course would retain jurisdiction over any of their nationals on board.
53 Article 99, 110(l)(b), United Nations Convention on the Law of the Sea, The Law of the Sea, United
Nations, New York, 1983, p. 33, 35.
54 Article
108, United Nations Convention on the Law of the Sea, The Law of the Sea, United Nations,
New York, 1983, p. 35.
55 Article 110(1)(e), United Nations Convention on the Law of the Sea, The Law of the Sea, United
Nations, New York, 1983, p. 35.
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IV.
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Reconfiguring the Law of the Sea for Cyberspace
In this Part, we draw upon the United Nations Convention on the Law of the Sea
(LOS) to develop a legal regime for cyberspace that will better promote security in virtual
information transactions. From Part II, we settle on accountability and enforcement as the
intermediary goals for reconfiguring the LOS for a cyberspace regime. We then devise
virtual analogues for marine aspects of the LOS. For reference purposes, we retain the
article numbers of the LOS from which we derived these proposed Internet provisions.
Article numbers that begin with "A" were derived from The Agreement Relating to the
Implementation of PartXI of the UnitedNations Convention on the Law of the Sea of 10
December 1982, that entered into force on July 28, 1996.56 Also note that for the
purposes of this construction, the term "virtual site" is meant to include any virtual
interactive site including web pages or sites, multiple user dungeons, chat rooms, etc.
"State Parties" means States which have consented to be bound by this regime and for
which this regime is in force.
The first articles set out general principles of freedom and peaceful conduct for
cyberspace, as well as the recognition of cyberspace as an environment outside the
sovereignty of any State.
GENERAL PROVISIONS
Article 87. Freedom of the Internet
1. The Internet is open to all States. Freedom of the Internet is exercised under
conditions laid down by this Convention and by other rules of international law. It
comprises, inter alia:
a) freedom of navigation in cyberspace;
b) freedom to construct virtual sites.
56 Oceans
and the Law of the Sea, URL: <http://www.un.org/Depts/los/losconvl.htm>.
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2. These freedoms shall be exercised by all States with due regard for the interests of
other States in their exercise of the freedom of the Internet, and also due regard
for the rights under this Convention with respect to activities in the Area.
Article 88. Reservation of the Internet for Peaceful Purposes
The Internet shall be reserved for peaceful purposes.
Article 89.
Invalidity of Sovereignty over the Internet
No State may validly purport to subject any part of the Internet to its sovereignty.
Articles 91 and 92 then establish a means of virtual accountability by establishing a
nationality status to tag users of the Internet and the virtual sites constructed there. While
this may seem repugnant to laissez-faire cyberspace purists, we do not require
conscription to this regime. By allowing the option to exist and act in cyberspace without
nationality, these articles do not necessarily reduce the present degree of anonymity
available in cyberspace. At the same time, by the proposed regime, any unregistered use is
without protection of a national State if a virtual incident should arise. The idea is to give
cybernauts and owners/operators of virtual sites the option for greater accountability and
protection. Such concerns seem most relevant to electronic commerce, as described in the
maritime context by the Bolero discussion. By the proposed regime, cybernauts could
limit their use of the Internet as registered virtual nationals to electronic commercial
transactions and other uses that affect or require security, remaining anonymous
otherwise. It is hoped that cyberspace activity can be configured in such a way to allow
this kind of selective use.
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Article 91A. Nationality of Cybernauts
1. Every State shall fix the conditions for the grant of its virtual nationality to
cybernauts, for the registration of cybernauts, and for the right to use the Internet
as its virtual national. There must exist a genuine link between the cybernaut and
the State.
2. Every State shall issue to cybernauts to which it has granted virtual nationality
documentation to that effect.
Article 91B. Nationality of Virtual Sites
1. Every State shall fix the conditions for registration of virtual sites, and for the right
of virtual sites to 'fly' its flag. There must exist a genuine link between the virtual
site and the State.
2. Every State shall issue to virtual sites to which it has granted the right to fly its flag
documents to that effect.
Article 92A. Status of Cybernauts
1. Cybernauts shall operate under the virtual nationality of one State only and, save in
exceptional cases expressly provided for in international treaties or in this
Convention, shall be subject to its exclusive jurisdiction in cyberspace. A
cybernaut may not change his/her virtual nationality, save in the case of a real
change of registry.
2. A cybernaut which uses the Internet under the virtual nationality of two or more
States, using them according to convenience, may not claim any of the virtual
nationalities in question with respect to any other State, and may be assimilated to
a cybernaut without virtual nationality.
Article 92B. Status of Virtual Sites
1. Virtual sites shall operate under the flag of one State only and, save in exceptional
cases expressly provided for in international treaties or in this Convention, shall be
subject to its exclusive jurisdiction in cyberspace. A virtual site may not change its
flag, save in the case of a real transfer of ownership or change of registry.
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2. A virtual site which operates under the flag of two or more States, using them
according to convenience, may not claim any of the nationalities in question with
respect to any other State, and may be assimilated to a virtual site without virtual
nationality.
The duties of virtual nationality States as given in article 94 suggest that the most
convenient "genuine link" between a cybernaut and a virtual nationality State is the
cybernaut's physical nationality State. Still some cybernauts may prefer another State for
its protective strength in international relations, or, as with maritime flags of convenience,
for its lack of strict restrictions.
Article 94. Duties of the Virtual Nationality State
1. Every State shall effectively exercise its jurisdiction and control in administrative,
technical, and social matters over cybernauts using the Internet under its virtual
nationality and over virtual sites flying its flag.
2. In particular every State shall:
a) maintain a register of its cybernaut nationals containing the names and particulars
of cybernauts using the Internet under its virtual nationality, except those which
may be excluded from generally accepted international regulations; and
b) assume jurisdiction under its internal law over each of its cybernauts in respect of
administrative, technical and social matters concerning Internet use;
c) maintain a register of virtual sites containing the names and particulars of virtual
sites flying its flag, except those which may be excluded from generally accepted
international regulations; and
d) assume jurisdiction under its internal law over each virtual site flying its flag and
over the network system operators and personnel in respect of administrative,
technical and social matters concerning virtual sites.
3. Every State shall take such measures for its cybernaut nationals and for its virtual
sites as are necessary to ensure security in cyberspace with regard, inter alia,to:
--
a) the construction, equipment, and technical integrity of cybernaut interfaces and
virtual sites;
b) the manning of virtual sites, operating conditions, and the training of personnel,
taking into account applicable international standards and protocols;
c) the use of information, the adherence to information integrity and security
measures, the maintenance of communication lines and connections, and the
prevention of information corruption.
4. Such measures shall include those necessary to ensure that each cybernaut is fully
conversant with and required to observe the applicable international regulations
concerning information integrity and security and the prevention of information
corruption.
5. Such measures shall include those necessary to ensure:
a) that each virtual site, before registration and thereafter at appropriate intervals, is
surveyed by a qualified surveyor of virtual sites, and has available such
documentation as are appropriate for the safe navigation of the virtual site;
b) that each virtual site is under the charge of a network system operator and
personnel who possess appropriate qualifications;
c) that the network system operator and, to the extent appropriate, the personnel are
fully conversant with and required to observe the applicable international
regulations concerning information integrity and security, the prevention of
information corruption, and the management of communications and connections.
6. In taking the measures called for in paragraphs 3, 4, and 5 each State is required to
conform to generally accepted international regulations, procedures and practices
and to take any steps which may be necessary to secure their observance.
7. A State which has clear grounds to believe that proper jurisdiction and control
with respect to a cybernaut or virtual site have not been exercised may report the
facts to the cybernaut's or virtual site's virtual nationality State. Upon receiving
such a report, the virtual nationality State shall investigate the matter and, if
appropriate, take any action necessary to remedy the situation.
8. Each State shall cause an inquiry to be held by or before a suitably qualified person
or persons into every incident of Internet use involving its cybernaut nationals or
involving a virtual site flying its flag, and causing serious injury to nationals of
another State or serious damage to information originating from another State.
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The national State and the other State shall cooperate in the conduct of any inquiry
held by that other State into any such Internet incident.
Registration or licensing fees may ameliorate the burdens of registry for the State.
Such fees, however, should not be great enough to deter registration. This concern then
would join other access issues that already exist, as politicians espouse the vision of
universal Internet access with little details for realizing such access for every man, woman,
and child. In other words, virtual nationality should not be dismissed simply because of
the infrastructure burdens that it would entail. Such burdens already exist and it seems
unlikely that registry as an additional information service could not be likewise
accommodated by a given infrastructure/access solution.
To enforce accountability, jurisdiction is accomplished by Articles 97 and 27,
modeled after customary law long-followed on the high seas. The proposed provisions
grant jurisdiction to a State when information exchange in cyberspace directly results in
physical consequences within territory that is under that State's sovereignty.
Article 97. Penal Jurisdiction in Matters of Internet Incidents
1. Cybernauts
a) In the event of an incident of navigation concerning a cybernaut on the Internet,
involving the penal or disciplinary responsibility of the cybernaut, no penal or
disciplinary proceedings may be instituted against such person except before the
judicial or administrative authorities either of the virtual national State or of the
State of which such person is physically a national.
b) In disciplinary matters, the State that has registered the cybernaut shall alone be
competent, after due legal process, to pronounce the withdrawal of such
registration, even if the holder is not a national of the State which issued the
cyberspace registration.
c) No virtual arrest of a registered cybernaut, even as a measure of investigation, shall
be ordered by any authorities other than those of the cybernaut's virtual nationality
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State. (Physical arrest would necessarily involve the appropriate authorities of the
physical location of the cybernaut.)
2. Virtual Sites
a) In the event of an incident of navigation concerning a virtual site on the Internet,
involving the penal or disciplinary responsibility of the network system operator or
of any other person in the service of the virtual site, no penal or disciplinary
proceedings may be instituted against such person except before the judicial or
administrative authorities of the virtual site's flag State, or of the State of which
such person is a virtual national, or of the State of which such person is a physical
national.
b) In disciplinary matters, the State that has registered the virtual site shall alone be
competent, after due legal process, to pronounce the withdrawal of such
registration. The State that has issued any network system operator's certificate of
competence or license shall alone be competent, after due legal process, to
pronounce the withdrawal of such certificates, even if the holder is not a national,
physical or virtual, of the issuing State.
c) No seizure of a registered virtual site, even as a measure of investigation, shall be
ordered by any authorities other than those of the virtual site's flag State.
Article 27. Criminal Jurisdiction over Foreign Virtual Sites
1. The criminal jurisdiction of a State does not extend to a foreign virtual site to
arrest any person or to conduct any investigation in connection with any crime
committed in cyberspace, save only in the following cases:
a) if the consequences of the crime physically extend to the State;
b) if the crime is of a kind to physically disturb the peace of the country of the State;
c) if the assistance of the local authorities has been requested by the network system
operator of a virtual site or by a diplomatic agent or consular officer of a virtual
site's flag State; or
d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs
or psychotropic substances.
2. In the cases provided for in paragraph 1, the State shall, if the network system
operator so requests, notify a diplomatic or consular officer of the virtual site's
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flag State before taking any steps, and shall facilitate contact between such agent
or officer and the virtual site's personnel. In cases of emergency this notification
may be communicated while the measures are being taken.
3. In considering whether or in what manner an arrest should be made, the local
authorities shall have due regard to the interests of virtual navigation.
The next Articles 100 through 106 concern cyberspace piracy, broadly defined to
include any acts involving tampering or depredation of information for personal gain. This
construction also allows seizure of computer systems used to effectuate information
piracy, and grants every State jurisdiction to arrest the perpetrators and the systems they
use. Every State may decide individually what to do with a system it has seized. A State
is also responsible for any system it has seized wrongfully. Meanwhile, pirates remain
subject to their nationality States, virtual and physical, for penal and disciplinary action.
Article 100. Duty to Cooperate in the Repression of Piracy
All States shall cooperate to the fullest possible extent in the repression of piracy
on the Internet or in any other place outside the jurisdiction of any State.
Article 101. Definition of Piracy
Piracy in cyberspace consists of any of the following acts:
a) any illegal acts of information tampering or depredation, committed for private
ends by the personnel or the users of a private system, and directed on the Internet,
against another system or virtual site, or against persons or property of such
system or virtual site;
b) any act of voluntary participation in any operation with knowledge of facts making
it a piracy;
c) any act of inciting or of intentionally facilitating an act described in subparagraph
(a) or (b).
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Article 103. Definition of a Pirating System
An operation, procedure, network system, computer terminal, or software
program is considered a pirating system if it is intended by the persons in dominant
control to be used for the purpose of committing one of the acts referred to in
article 101. The same applies if the operation, procedure, network system,
computer terminal, or software program has been used to commit any such act, so
long as it remains in control of the persons guilty of that act.
Article 105.
Seizure of a Pirating System
Every State may seize a pirating system and arrest the persons and seize the
pirated information. Only public agents authorized by a State may carry out a
seizure of a pirating system. The courts of the State which carried out the seizure
may decide upon penalties to be imposed, and may also determine the action to be
taken with regard to the pirating system, subject to the rights of third parties acting
in good faith.
Article 106. Liability for Seizure Without Adequate Grounds
Where the seizure of an operation, procedure, network system, computer terminal,
or software program, has been effected without adequate grounds, the State
making the seizure shall be liable for any loss or damage caused by seizure.
In the LOS, Article 117 and 118 are two of several provisions that together require
international cooperation for the effective management of living marine resources and
those of the deep seabed, as well as the protection of the environment, the advancement of
marine scientific research, and the development and transfer of marine technology. We
apply this cooperation mandate for cyberspace management and regulation.
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Article 117/118. Duty of States to Cooperate and to Adopt with respect to their
Nationals Measures for the Management of Cyberspace
Resources
States shall cooperate with each other in the management of resources in
cyberspace. All States have the duty to take, or to cooperate with other States in
taking such measures for their respective nationals as may be necessary for the
management of the resources of cyberspace.
The deep seabed is that aspect of the high seas regime that is most similar to
cyberspace. Both are new arenas made accessible by advancing technology and open to
all. Both also house resources that must be protected from monopolization by the more
technologically advanced States. While the other parts of the LOS are like a framework
treaty, with elaboration of precise rules left to national governments and international
organizations, as well as to dispute settlement procedures or future international
negotiations, Part XI of the LOS is highly specific, much like a commercial contract.57 As
with the Bolero Rule Book 58 and in the CompuServe case59 , commercial contracts have
been utilized to establish binding rules and legal jurisdiction for electronic contract.
International conventions, in their infancy, are likewise similar to multilateral contracts
with States as the contracting parties.
Part XI of the proposed regime for cyberspace combines the framework and
contract aspects of the LOS.
57 Churchill supra note 1at p. 15.
58 "Completing the Puzzle" supra note 35; a standard Rule Book is agreed to by contract to establish
legally binding rules for all parties that contract for Bolero service.
59 CompuServe supra note 65; the defendant Patterson had signed a contract with CompuServe
recognizing Ohio state law as binding upon both parties.
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PART XI. SECTION 2. PRINCIPLES GOVERNING CYBERSPACE
Article 137. Legal Status of Cyberspace
1. No State shall claim or exercise sovereignty or sovereign rights over any part of
cyberspace, nor shall any State or natural or juridical person appropriate any part
thereof No such claim or exercise of sovereignty or sovereign rights nor such
appropriation shall be recognized.
2. All rights in the resources of cyberspace are vested in mankind as a whole, on
whose behalf the International Cyberspace Authority (ICA) shall act. These
resources are not subject to alienation.
Article 138. General Conduct of States in Relation to Cyberspace
The general conduct of States in relation to cyberspace shall be in accordance with
the provisions of this Part, the principles embodied in the Charter of the United
Nations and other rules of international law in the interests of maintaining peace
and security and promoting international cooperation and mutual understanding.
Article 139. Responsibility to Ensure Compliance and Liability for Damage
1. States Parties shall have the responsibility to ensure that activities in cyberspace,
whether carried out by States Parties, or state enterprises or natural or juridical
persons which possess the nationality of States Parties or are effectively controlled
by them or their nationals, shall be carried out in conformity with this Part. The
same responsibility applies to international organizations for activities in
cyberspace carried out by such organizations.
2. Without prejudice to the rules of international law, damage caused by the failure of
a State Party or international organization to carry out its responsibilities under
this Part shall entail liability; States Parties or international organizations acting
together shall bear joint and several liability. A State Party shall not however be
liable for damage caused by any failure to comply with this Part by a person whom
it has sponsored if the State Party has taken all necessary and appropriate measures
to secure effective compliance.
3. States Parties that are members of international organizations shall take
appropriate measures to ensure the implementation of this article with respect to
such organizations.
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Article 140. Benefit ofMankind
Cyberspace shall, as specifically provided for in this Part, be for the benefit of
mankind as a whole, taking into particular consideration the interests and needs of
developing States and of peoples who have not attained full independence or other
self-governing status recognized by the United Nations in accordance with General
Assembly resolution 1514 (XV) and other relevant General Assembly resolutions.
Article 141. Use of Cyberspace Exclusively for Peaceful Purposes
Cyberspace shall be open to use exclusively for peaceful purposes by all States,
without discrimination and without prejudice to the other provisions of this Part.
Article 142. Rights and Legitimate Interests of States
1. Activities in cyberspace with physical consequences that cross limits of national
jurisdiction, shall be conducted with due regard to the rights and legitimate
interests of any State across whose jurisdiction such physical consequences occur.
2. Neither this Part nor any rights granted or exercised pursuant thereto shall affect
the rights of States to take such measures consistent with the relevant provisions
of this convention, as may be necessary to prevent, mitigate or eliminate grave and
imminent danger to their interests from threat thereof or from other hazardous
occurrences resulting from or caused by any activities in cyberspace.
Article 144. Transfer of Technology
1. The ICA shall take measures in accordance with this Convention to promote and
encourage the transfer to developing States of such technology and scientific
knowledge so that all States Parties may participate in cyberspace therefrom.
2. To this end the ICA and States Parties shall cooperate in promoting the transfer of
technology and scientific knowledge relating to cyberspace access so that all States
Parties may benefit therefrom. In particular they shall initiate and promote:
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a) programs for the transfer of technology to developing States with regard to
cyberspace, including, inter alia, facilitating the access of developing States to the
relevant technology, under fair and reasonable terms and conditions;
b) measures directed towards the advancement of the domestic technology of
developing States, particularly by providing opportunities to persons from
developing States for training in computer science and technology and for their full
participation in activities in cyberspace.
Article 145. Protection of the Virtual Environment
Necessary measures shall be taken in accordance with this Convention with respect
to activities in cyberspace to ensure effective protection for the virtual environment
from harmful effects which may arise from such activities. To this end the
Authority shall adopt appropriate rules, regulations and procedures for the
prevention, reduction and control of viruses and other corruptive hazards to the
virtual environment.
Article 147. Accommodation of Activities in Cyberspace and in the Virtual
Environment
Activities in cyberspace shall be carried out with reasonable regard for other
activities in the virtual environment.
Article 148. Participation of Developing States in Activities in Cyberspace
The effective participation of developing States in activities in cyberspace shall be
promoted as specifically provided for in this Part, having due regard to their
special interests and needs, and in particular to the special need of the
disadvantaged among them to overcome obstacles arising from their disadvantaged
state, including difficulty of access to and from cyberspace.
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Article Al. Costs To States Parties And Institutional Arrangements 60
1. In order to minimize costs to States Parties, all organs and subsidiary bodies to be
established under the Convention shall be cost-effective. This principle shall also
apply to the frequency, duration and scheduling of meetings.
2. The setting up and the functioning of the organs and subsidiary bodies of the
International Cyberspace Authority (ICA) shall be based on an evolutionary
approach, taking into account the functional needs of the organs and subsidiary
bodies concerned in order that they may discharge effectively their respective
responsibilities at various stages of the development of activities in cyberspace.
3. The early functions of the ICA upon entry into force of the Convention shall be
carried out by the Assembly, the Council, the Secretariat, the Legal and Technical
Commission and the Finance Committee. The functions of the Economic Planning
Commission shall be performed by the Legal and Technical Commission until such
time as the Council decides otherwise.
4. Upon entry into force of the Convention, the ICA shall concentrate on:
a) Implementation of decisions of the Preparatory Commission for the International
Cyberspace Authority and for the International Tribunal for the Law of Cyberspace
(hereinafter referred to as "the Preparatory Commission") relating to the registered
pioneer cybernauts and their certifying States, including their rights and
obligations;
b) Monitoring of compliance with approved information security standards in the
form of virtual contracts;
c) Monitoring and review of trends and developments relating to electronic
commerce activities;
d) Study of the potential impact of electronic transfer of information exchanges to
cyberspace on the economies of developing States and those States which are
likely to be most significantly affected, with a view to minimizing difficulties and
assisting them in their economic adjustment, taking into account the work done in
this regard by the Preparatory Commission;
60 Annex
Section 1,The Agreement Relating To The Implementation Of Part XI Of The United Nations
Convention On The Law Of The Sea Of 10 December 1982, July 28, 1996, the Division for Ocean Affairs
and the Law of the Sea, Office of Legal Affairs, United Nations, New York. URL:
<http://www.un.org/Depts/los/unclos/closindx.htm>.
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e) Adoption of rules, regulations and procedures necessary for the conduct of
activities in cyberspace as they progress. Such rules, regulations and procedures
shall take into account the terms of this Convention, the prolonged delay in
compliance with promulgated standards and the likely pace of activities in
cyberspace;
f) Adoption of rules, regulations and procedures incorporating applicable standards
for the promotion of the virtual environment;
g) Timely elaboration of rules, regulations and procedures.
5. Upon the entry into force of this Convention, States and entities which have been
applying this Convention provisionally and for which it is not in force may
continue to be members of the ICA on a provisional basis pending its entry into
force for such States and entities, in accordance with the following subparagraphs:
a) If this Convention enters into force, such States and entities shall be entitled to
continue to participate as members of the ICA on a provisional basis upon
notification to the depository of the Convention by such a State or entity of its
intention to participate as a member on a provisional basis. Such membership shall
terminate either on [DATE TO BE SET] or upon the entry into force of this
Convention for such member, whichever is earlier. The Council may, upon the
request of the State or entity concerned, extend such membership beyond the cutoff date for a further period or periods not exceeding a total of two years provided
that the Council is satisfied that the State or entity concerned has been making
efforts in good faith to become a party to the Convention;
b) Such States and entities may request the Council to grant continued membership in
the ICA on a provisional basis for a period or periods not extending beyond two
years. The Council shall grant such membership with effect from the date of the
request if it is satisfied that the State or entity has been making efforts in good faith
to become a party to the Convention;
c) States and entities which are members of the ICA on a provisional basis in
accordance with subparagraph (a) or (b) shall apply the terms of this Convention in
accordance with their national or internal laws, regulations and annual budgetary
appropriations and shall have the same rights and obligations as other members,
including the obligation to contribute to the administrative budget of the ICA in
accordance with the scale of assessed contributions;
d) If such a member has failed to make its assessed contributions or otherwise failed
to comply with its obligations in accordance with this paragraph, its membership
on a provisional basis shall be terminated.
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6. The ICA shall have its own budget. Until the end of the year following the year
during which this Convention enters into force, the administrative expenses of the
ICA shall be met through the budget of the United Nations. Thereafter, the
administrative expenses of the ICA shall be met by assessed contributions of its
members, including any members on a provisional basis, in accordance with articles
171, subparagraph (a), and 173 of this Convention, until the ICA has sufficient
funds from other sources to meet those expenses. The ICA shall not exercise the
power referred to in article 174, paragraph 1, of the Convention to borrow funds
to finance its administrative budget.
7. The ICA shall elaborate and adopt rules, regulations and procedures necessary, in
accordance with the Council that may undertake such elaboration any time it
deems that all or any of such rules, regulations or procedures are required for the
conduct of activities in cyberspace.
8. The draft rules, regulations and procedures and any recommendations relating to
the provisions of Part XI, as contained in the reports and recommendations of the
Preparatory Commission, shall be taken into account by the ICA in the adoption of
rules, regulations and procedures in accordance with Part XI and this Convention.
9. The relevant provisions of Part XI, section 4, of the Convention shall be
interpreted and applied in accordance with this section.
The central creation of this Part XI section is the establishment of an International
Cyberspace Authority (ICA). The ICA is to be the seat of international management of
cyberspace. The ICA, in turn, will be responsible for the establishment of those
organizational bodies that will be required to realize that management. Adapted from the
organizational structure established for the deep seabed, this proposed regime for
cyberspace creates the ICA's Finance Committee, Legal and Technical Commission, and
Economic Planning Commission. These bodies-as well as the detailed specificity
regarding ICA membership, procedures, rights, and responsibilities-underline the
proposal's commitment to the development of cyberspace management policies that are
realistic and effective.
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SECTION 4. THE INTERNATIONAL CYBERSPACE AUTHORITY
Subsection A. General Provisions
Article 156. Establishment of the International Cyberspace Authority
1. There is hereby established the International Cyberspace Authority (ICA), which
shall function in accordance with this Part.
2. All States Parties are ipso facto members of the ICA.
3. The ICA may establish a seat location and such regional centers or offices as it
deems necessary for the exercise of its functions.
Article 157. Nature and Fundamental Principles of the ICA
1. The ICA is the organization through which States Parties to the Convention shall,
in accordance with the regime for cyberspace established by this Convention,
organize and control activities in cyberspace, particularly with a view to
effectuating communication and documentation security in cyberspace. 61
2. The powers and functions of the ICA shall be those expressly conferred upon it by
this Convention. The ICA shall have such incidental powers, consistent with this
Convention, as are implicit in and necessary for the exercise of those powers and
functions with respect to activities in cyberspace.
3. The ICA is based on the principle of the sovereign equality of all its members.
4. All members of the ICA shall fulfill in good faith the obligations assumed by them
in accordance with this Part in order to ensure to all of them the rights and benefits
resulting from membership.
Article 158. Organs of the ICA
1. There are hereby established, as the principal organs of the ICA, an Assembly, a
Council and a Secretariat.
2. Such subsidiary organs as may be found necessary may be established in
accordance with this Part.
61 Id.
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3. Each principal organ of the ICA shall be responsible for exercising those powers
and functions which are conferred upon it. In exercising such powers and
functions each organ shall avoid taking any action which may derogate from or
impede the exercise of specific powers and functions conferred upon another
organ.
Subsection B. The Assembly
Article 159. Composition, Procedure and Voting
1. The Assembly shall consist of all the member States of the ICA. Each member
shall have one representative in the Assembly, who may be accompanied by
alternates and advisers.
2. The Assembly shall meet in regular annual sessions and in such special sessions as
may be decided by the Assembly, or convened by the Secretary-General at the
request of the Council or of a majority of the members of the ICA.
3. Sessions shall take place at the seat of the ICA unless otherwise decided by the
Assembly.
4. The Assembly shall adopt its rules of procedure. At the beginning of each regular
session, it shall elect its President and such other officers as may be required. They
shall hold office until a new President and other officers are elected at the next
regular session.
5. A majority of the members of the Assembly shall constitute a quorum.
6. Each member of the Assembly shall have one vote.
7. Decisions on questions of procedure, including decisions to convene special
sessions of the Assembly, shall be taken by a majority of the members present and
voting.
8. Decisions on questions of substance shall be taken by a two-thirds majority of the
members present and voting, provided that such majority includes a majority of the
members participating in the session. When the issue arises as to whether a
question is one of substance or not, that question shall be treated as one of
substance unless otherwise decided by the Assembly by the majority required for
decisions on questions of substance.
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9. When a question of substance comes up for voting for the first time, the President
may, and shall, if requested by at least one fifth of the members of the Assembly,
defer the issue of taking a vote on that question for a period not exceeding five
calendar days. This rule may be applied only once to any question, and shall not be
applied so as to defer the question beyond the end of the session.
10. Upon a written request addressed to the President and sponsored by at least one
fourth of the members of the ICA for an advisory opinion on the conformity with
this Convention of a proposal before the Assembly on any matter, the Assembly
shall request the Cyberspace Disputes Chamber of the International Tribunal for
the Law of Cyberspace to give an advisory opinion thereon and shall defer voting
on that proposal pending receipt of the advisory opinion by the Chamber. If the
advisory opinion is not received before the final week of the session in which it is
requested, the Assembly shall decide when it will meet to vote upon the deferred
proposal.
Article 160. Powers and Functions
1. The Assembly, as the sole organ of the ICA consisting of all the members, shall be
considered the supreme organ of the ICA to which the other principal organs shall
be accountable as specifically provided for in this Convention. The Assembly shall
have the power to establish general policies in conformity with the relevant
provisions of this Convention on any question or matter within the competence of
the ICA.
2. In addition, the powers and functions of the Assembly shall be:
a) to elect the members of the Council in accordance with article 161;
b) to elect the Secretary-General from among the candidates proposed by the
Council;
c) to establish such subsidiary organs as it finds necessary for the exercise of its
functions in accordance with this Part. In the composition of these subsidiary
organs due account shall be taken of the principle of equitable geographical
distribution and of special interests and the need for members qualified and
competent in the relevant technical questions dealt with by such organs;
d) to assess the contributions of members to the administrative budget of the ICA in
accordance with an agreed scale of assessment based upon the scale used for the
regular budget of the United Nations unless the ICA shall have sufficient income
from other sources to meet its administrative expenses;
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e) to consider and approve the rules, regulations and procedures of the ICA, and any
amendments thereto, provisionally adopted by the Council pursuant to article 162,
paragraph 2 (h). These rules, regulations and procedures shall relate to
communication and documentation management and security in cyberspace and the
financial management and internal administration of the ICA. If the Assembly does
not approve the recommendations of the Council, the Assembly shall return them
to the Council for reconsideration in light of the views expressed by the Assembly;
f) to consider and approve the proposed annual budget of the ICA submitted by the
Council;
g) to examine periodic reports from the Council and special reports requested from
the Council or any other organ of the ICA;
h) to initiate studies and make recommendations for the purpose of promoting
international cooperation concerning activities in cyberspace and encouraging the
progressive development of international law relating thereto and its codification;
i) to consider problems of a general nature in connection with activities in
cyberspace, including those arising for States that are particularly disadvantaged in
connection with activities in cyberspace;
j) to suspend the exercise of rights and privileges of membership pursuant to article
185;
k) to discuss any question or matter within the competence of the ICA and to decide
as to which organ of the ICA shall deal with any such question or matter not
specifically entrusted to a particular organ, consistent with the distribution of
powers and functions among the organs of the ICA.
Article A9. The Finance Committee 62
1. There is hereby established a Finance Committee. The Committee shall be
composed of 15 members with appropriate qualifications relevant to financial
matters. States Parties shall nominate candidates of the highest standards of
competence and integrity.
62 Annex
Section 9, The Agreement Relating To The Implementation Of Part XI Of The United Nations
Convention On The Law Of The Sea Of 10 December 1982, July 28, 1996, the Division for Ocean Affairs
and the Law of the Sea, Office of Legal Affairs, United Nations, New York. URL:
<http://www.un.org/Depts/los/unclos/closindx.htm>.
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2. No two members of the Finance Committee shall be nationals of the same State
Party.
3. Members of the Finance Committee shall be elected by the Assembly and due
account shall be taken of the need for equitable geographical distribution and the
representation of special interests. Each group of States referred to in Article 161,
paragraph 1(a), (b), and (c), of this Convention shall be represented on the
Committee by at least one member. Until the Authority has sufficient funds other
than assessed contributions to meet its administrative expenses, the membership of
the Committee shall include representatives of the five largest financial
contributors to the administrative budget of the Authority. Thereafter, the election
of one member from each group shall be on the basis of nomination by the
members of the respective group, without prejudice to the possibility of further
members being elected from each group.
4. Members of the Finance Committee shall hold office for a term of five years. They
shall be eligible for re-election for a further term.
5. In the event of the death, incapacity or resignation of a member of the Finance
Committee prior to the expiration of the term of office, the Assembly shall elect for
the remainder of the term a member from the same geographical region or group
of States.
6. Members of the Finance Committee shall have no financial interest in any activity
relating to matters upon which the Committee has the responsibility to make
recommendations. They shall not disclose, even after the termination of their
functions, any confidential information coming to their knowledge by reason of
their duties for the Authority.
7. Decisions by the Assembly and the Council on the following issues shall take into
account recommendations of the Finance Committee:
a) Draft financial rules, regulations and procedures of the organs of the Authority and
the financial management and internal financial administration of the Authority;
b) Assessment of contributions of members to the administrative budget of the
Authority in accordance with article 160, paragraph 2(d), of the Convention;
c) All relevant financial matters, including the proposed annual budget prepared by
the Secretary-General of the Authority in accordance with article 172 of the
Convention and the financial aspects of the implementation of the programs of
work of the Secretariat;
d) The administrative budget;
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e) Financial obligations of States Parties arising from the implementation of this
Convention as well as the administrative and budgetary implications of proposals
and recommendations involving expenditure from the funds of the ICA.
8. Decisions in the Finance Committee on questions of procedure shall be taken by a
majority of members present and voting. Decisions on questions of substance shall
be taken by consensus.
9. The requirement of article 162, paragraph 2(p), of the Convention to establish a
subsidiary organ to deal with financial matters shall be deemed to have been
fulfilled by the establishment of the Finance Committee in accordance with this
section.
Subsection C. The Council
Article 161. Composition, Procedure and Voting
1. The Council shall consist of 30 members of the ICA elected by the Assembly in the
following order:
a) Four members from among those States Parties which, during the last five years
for which statistics are available, have contributed more than 2 per cent of total
world activity in cyberspace, either directly or through their nationals, and
provided that the four members shall include one State from the Eastern European
region having the largest economy in that region in terms of gross domestic
product and the State, on the date of entry into force of the Convention, having the
largest economy in terms of gross domestic product, if such States wish to be
represented in this group;
b) Four members from among the eight States Parties which have made the largest
investments in preparation for and in the conduct of activities in cyberspace, either
directly or through their nationals;
c) Four members from among developing States Parties, representing special
interests. The special interests to be represented shall include those of States with
large populations, States which are virtually disadvantaged, and least developed
States;
d) Eighteen members elected according to the principle of ensuring an equitable
geographical distribution of seats in the Council as a whole, provided that each
geographical region shall have at least one member elected under this
subparagraph. For this purpose, the geographical regions shall be Africa, Asia,
----
Eastern Europe, Latin America and the Caribbean and Western Europe and
Others.
2. In electing the members of the Council in accordance with paragraph 1, the
Assembly shall ensure that:
a) disadvantaged States are represented to a degree which is reasonably
proportionate to their representation in the Assembly;
b) major contributor States, especially developing States, which do not qualify under
paragraph 1(a), (b), or (c) are represented to a degree which is reasonably
proportionate to their representation in the Assembly;
c) each group of States Parties to be represented on the Council is represented by
those members, if any, which are nominated by that group.
3. Elections shall take place at regular sessions of the Assembly. Each member of the
Council shall be elected for four years. At the first election, however, the term of
one half of the members of each group referred to in paragraph I shall be two
years.
4. Members of the Council shall be eligible for re-election, but due regard should be
paid to the desirability of rotation of membership.
5. The Council shall function at the seat of the ICA, and shall meet as often as the
business of the ICA may require, but not less than three times a year.
6. A majority of the members of the Council shall constitute a quorum.
7. Each member of the Council shall have one vote.
8.
a) Decisions on questions of procedure shall be taken by a majority of the members
present and voting.
b) Decisions on questions of substance arising under the following provisions shall be
taken by consensus: article 162, paragraph 2(h); adoption of amendments to Part
XI.
c) For the purposes of subparagraphs (b), (d) and (e), "consensus" means the absence
of any formal objection. Within 14 days of the submission of a proposal to the
Council, the President of the Council shall determine whether there would be a
formal objection to the adoption of the proposal. If the President determines that
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there would be such an objection, the President shall establish and convene, within
three days following such determination, a conciliation committee consisting of not
more than nine members of the Council, with the President as chairman, for the
purpose of reconciling the differences and producing a proposal which can be
adopted by consensus. The committee shall work expeditiously and report to the
Council within 14 days following its establishment. If the committee is unable to
recommend a proposal which can be adopted by consensus, it shall set out in its
report the grounds on which the proposal is being opposed.
d) Decisions on questions not listed above which the Council is authorized to take by
the rules, regulations and procedures of the ICA or otherwise shall be taken
pursuant to the subparagraphs of this paragraph specified in the rules, regulations
and procedures or, if not specified therein, then pursuant to the subparagraph
determined by the Council if possible in advance, by consensus.
e) When the issue arises as to whether a question is within subparagraph (a) or (b),
the question shall be treated as being within the subparagraph requiring the higher
or highest majority or consensus as the case may be, unless otherwise decided by
the Council by the said majority or by consensus.
9. The Council shall establish a procedure whereby a member of the ICA not
represented on the Council may send a representative to attend a meeting of the
Council when a request is made by such member, or a matter particularly affecting
it is under consideration. Such a representative shall be entitled to participate in the
deliberations but not to vote.
Article A3. Decision-Making 63
1. The general policies of the ICA shall be established by the Assembly in
collaboration with the Council.
2. As a general rule, decision-making in the organs of the ICA should be by
consensus.
3. If all efforts to reach a decision by consensus have been exhausted, decisions by
voting in the Assembly on questions of procedure shall be taken by a majority of
members present and voting, and decisions on questions of substance shall be
63 Annex Section 3, The Agreement Relating To The Implementation Of Part XI Of The United Nations
Convention On The Law Of The Sea Of 10 December 1982, July 28, 1996, the Division for Ocean Affairs
and the Law of the Sea, Office of Legal Affairs, United Nations, New York. URL:
<http://www.un.org/Depts/los/unclos/closindx.htm>.
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taken by a two-thirds majority of members present and voting, as provided for in
article 159, paragraph 8, of the Convention.
4. Decisions of the Assembly on any matter for which the Council also has
competence or on any administrative, budgetary or financial matter shall be based
on the recommendations of the Council. If the Assembly does not accept the
recommendation of the Council on any matter, it shall return the matter to the
Council for further consideration. The Council shall reconsider the matter in the
light of the views expressed by the Assembly.
5. If all efforts to reach a decision by consensus have been exhausted, decisions by
voting in the Council on questions of procedure shall be taken by a majority of
members present and voting, and decisions on questions of substance, except
where the Convention provides for decisions by consensus in the Council, shall be
taken by a two-thirds majority of members present and voting, provided that such
decisions are not opposed by a majority in any one of the chambers referred to in
paragraph 9. In taking decisions the Council shall seek to promote the interests of
all the members of the ICA.
6. The Council may defer the taking of a decision in order to facilitate further
negotiation whenever it appears that all efforts at achieving consensus on a
question have not been exhausted.
7. Decisions by the Assembly or the Council having financial or budgetary
implications shall be based on the recommendations of the Finance Committee.
8.
a) Each group of States elected under article 161, paragraph 1(a) and (b) shall be
treated as a chamber for the purposes of voting in the Council. The developing
States elected under article 161, paragraph 1(c) and (d) shall be treated as a single
chamber for the purposes of voting in the Council.
b) Before electing the members of the Council, the Assembly shall establish lists of
countries fulfilling the criteria for membership in the groups of States in article 161
paragraph 1(a) to (c). If a State fulfills the criteria for membership in more than
one group, it may only be proposed by one group for election to the Council and it
shall represent only that group in voting in the Council.
9. Each group of States in article 161, paragraph 1(a) to (c) shall be represented in
the Council by those members nominated by that group. Each group shall
nominate only as many candidates as the number of seats required to be filled by
that group. When the number of potential candidates in each of the groups
referred to in article 161, paragraph 1(a) to (d) exceeds the number of seats
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available in each of those respective groups, as a general rule, the principle of
rotation shall apply. States members of each of those groups shall determine how
this principle shall apply in those groups.
10. Decisions by voting in the Legal and Technical Commission shall be by a majority
of members present and voting.
11. Part XI, section 4, subsections B and C, of the Convention shall be interpreted and
applied in accordance with this provision.
Article 162. Powers and Functions
1. The Council is the executive organ of the ICA. The Council shall have the power
to establish, in conformity with this Convention and the general policies established
by the Assembly, the specific policies to be pursued by the ICA on any question or
matter within the competence of the ICA.
2. In addition, the Council shall:
a) supervise and coordinate the implementation of the provisions of this Part on all
questions and matters within the competence of the ICA and invite the attention of
the Assembly to cases of non-compliance;
b) propose to the Assembly a list of candidates for the election of the SecretaryGeneral;
c) establish, as appropriate, and with due regard to economy and efficiency, such
subsidiary organs as it finds necessary for the exercise of its functions in
accordance with this Part. In the composition of subsidiary organs, emphasis shall
be placed on the need for members qualified and competent in relevant technical
matters dealt with by those organs provided that due account shall be taken of the
principle of equitable geographical distribution and of special interests;
d) adopt its rules of procedure including the method of selecting its president;
e) exercise control over activities in cyberspace in accordance with the rules,
regulations and procedures of the ICA;
f) enter into agreements with the United Nations or other international organizations
on behalf of the ICA and within its competence, subject to approval by the
Assembly;
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g) present to the Assembly annual reports and such special reports as the Assembly
may request;
h) adopt and apply provisionally, pending approval by the Assembly, the rules,
regulations and procedures of the ICA, and any amendments thereto, taking into
account the recommendations of the Legal and Technical Commission or other
subordinate organ concerned. These rules, regulations and procedures shall relate
to communication and documentation management and security in cyberspace and
the financial management and internal administration of the ICA. All rules,
regulations and procedures shall remain in effect on a provisional basis until
approved by the Assembly or until amended by the Council in the light of any
views expressed by the Assembly;
i) review the collection of all payments to be made by or to the ICA in connection
with operations pursuant to this Part;
j)
submit the proposed annual budget of the ICA to the Assembly for its approval;
k) make recommendations to the Assembly concerning policies on any question or
matter within the competence of the ICA;
1) make recommendations to the Assembly concerning suspension of the exercise of
the rights and privileges of membership pursuant to article 185;
m) institute proceedings on behalf of the ICA before the Cyberspace Disputes
Chamber in cases of non-compliance;
n) notify the Assembly upon a decision by the Cyberspace Disputes Chamber in
proceedings instituted under subparagraph (1), and make any recommendations
which it may find appropriate with respect to measures to be taken;
o) issue emergency orders, which may include orders for the suspension or
adjustment of operations, to prevent serious harm arising out of activities in
cyberspace;
p) establish a subsidiary organ for the elaboration of draft financial rules, regulations
and procedures relating to financial management in accordance with articles 171 to
175;
q) establish appropriate mechanisms for directing and supervising a staff of inspectors
who shall inspect activities in cyberspace to determine whether this Part, the rules,
regulations and procedures of the ICA, and the terms and conditions of any
contract with the ICA are being complied with.
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Article 163. Organs of the Council
1. There are hereby established the following organs of the Council:
a) an Economic Planning Commission;
b) a Legal and Technical Commission.
2. Each Commission shall be composed of 15 members, elected by the Council from
among the candidates nominated by the States Parties. However, if necessary, the
Council may decide to increase the size of either Commission having due regard to
economy and efficiency.
3. Members of a Commission shall have appropriate qualifications in the area of
competence of that Commission. States Parties shall nominate candidates of the
highest standards of competence and integrity with qualifications in relevant fields
so as to ensure the effective exercise of the functions of the Commissions.
4. In the election of members of the Commissions, due account shall be taken of the
need for equitable geographical distribution and the representation of special
interests.
5. No State Party may nominate more than one candidate for the same Commission.
No person shall be elected to serve on more than one Commission.
6. Members of the Commissions shall hold office for a term of five years. They shall
be eligible for re-election for a further term.
7. In the event of the death, incapacity or resignation of a member of a Commission
prior to the expiration of the term of office, the Council shall elect for the
remainder of the term, a member from the same geographical region or area of
interest.
8. Members of Commissions shall have no financial interest in any activity relating to
development in cyberspace. Subject to their responsibilities to the Commissions
upon which they serve, they shall not disclose, even after the termination of their
functions, any industrial secret, proprietary data which are transferred to the ICA
in accordance with Annex III, article 14, or any other confidential information
coming to their knowledge by reason of their duties for the ICA.
9. Each Commission shall exercise its functions in accordance with such guidelines
and directives as the Council may adopt.
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10. Each Commission shall formulate and submit to the Council for approval such
rules and regulations as may be necessary for the efficient conduct of the
Commission's functions.
11. The decision-making procedures of the Commissions shall be established by the
rules, regulations and procedures of the ICA. Recommendations to the Council
shall, where necessary, be accompanied by a summary on the divergencies of
opinion in the Commission.
12. Each Commission shall normally function at the seat of the ICA and shall meet as
often as is required for the efficient exercise of its functions.
13. In the exercise of its functions, each Commission may, where appropriate, consult
another commission, any competent organ of the United Nations or of its
specialized agencies or any international organizations with competence in the
subject-matter of such consultation.
Article 164. The Economic Planning Commission
1. Members of the Economic Planning Commission shall have appropriate
qualifications such as those relevant to cyberspace technology, international trade
or international economics. The Council shall endeavor to ensure that the
membership of the Commission reflects all appropriate qualifications. The
Commission shall include at least two members from developing States.
2. The Commission shall:
a) propose, upon the request of the Council, measures to implement decisions
relating to activities in cyberspace taken in accordance with this Convention;
b) review the trends of and the factors cyberspace development, bearing in mind the
interests of both individual cybernauts and States, and in particular of the
developing States among them;
Article 165. The Legal and Technical Commission
1. Members of the Legal and Technical Commission shall have appropriate
qualifications such as those relevant to technology or economic or legal matters
relating to cyberspace and related fields of expertise. The Council shall endeavor
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to ensure that the membership of the Commission reflects all appropriate
qualifications.
2. The Commission shall:
a) make recommendations with regard to the exercise of the ICA's functions upon the
request of the Council;
b) supervise, upon the request of the Council, activities in cyberspace, where
appropriate, in consultation and collaboration with any entity carrying out such
activities or State or States concerned and report to the Council;
c) prepare assessments of the environmental implications of activities in cyberspace,
taking into account the views of recognized experts in that field;
d) formulate and submit to the Council the rules, regulations and procedures referred
to in article 162, paragraph 2(h), taking into account all relevant factors including
assessments of the environmental implications of activities in cyberspace;
e) keep such rules, regulations and procedures under review and recommend to the
Council from time to time such amendments thereto as it may deem necessary or
desirable;
f) make recommendations to the Council regarding the establishment of a monitoring
program to observe, measure, evaluate and analyze, by recognized scientific
methods, on a regular basis, the security risks or effects of activities in cyberspace,
ensure that existing regulations are adequate and are complied with and coordinate
the implementation of the monitoring program approved by the Council;
g) recommend to the Council that proceedings be instituted on behalf of the ICA
before the Cyberspace Disputes Chamber, in accordance with this Part and the
relevant Annexes taking into account particularly article 187;
h) make recommendations to the Council with respect to measures to be taken, upon
a decision by the Cyberspace Disputes Chamber in proceedings instituted in
accordance with subparagraph (g);
i) make recommendations to the Council to issue emergency orders, which may
include orders for the suspension or adjustment of operations, to prevent serious
harm to the environment arising out of activities in cyberspace. Such
recommendations shall be taken up by the Council on a priority basis;
j)
make recommendations to the Council regarding the direction and supervision of a
staff of inspectors who shall inspect activities in cyberspace to determine whether
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the provisions of this Part, the rules, regulations and procedures of the ICA, and
the terms and conditions of any contract with the ICA are being complied with.
3. The members of the Commission shall, upon request by any State Party or other
party concerned, be accompanied by a representative of such State or other party
concerned when carrying out their function of supervision and inspection.
Subsection D. The Secretariat
Article 166. The Secretariat
1. The Secretariat of the ICA shall comprise a Secretary-General and such staff as the
ICA may require.
2. The Secretary-General shall be elected for four years by the Assembly from among
the candidates proposed by the Council and may be re-elected.
3. The Secretary-General shall be the chief administrative officer of the ICA, and
shall act in that capacity in all meetings of the Assembly, of the Council and of any
subsidiary organ, and shall perform such other administrative functions as are
entrusted to the Secretary-General by these organs.
4. The Secretary-General shall make an annual report to the Assembly on the work of
the ICA.
Article 167. The Staff of the ICA
1. The staff of the ICA shall consist of such qualified scientific and technical and
other personnel as may be required to fulfill the administrative functions of the
ICA.
2. The paramount consideration in the recruitment and employment of the staff and in
the determination of their conditions of service shall be the necessity of securing
the highest standards of efficiency, competence and integrity. Subject to this
consideration, due regard shall be paid to the importance of recruiting the staff on
as wide a geographical basis as possible.
3. The staff shall be appointed by the Secretary-General. The terms and conditions
on which they shall be appointed, remunerated and dismissed shall be in
accordance with the rules, regulations and procedures of the ICA.
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Article 168. International Character of the Secretariat
1. In the performance of their duties the Secretary-General and the staff shall not seek
or receive instructions from any government or from any other source external to
the ICA. They shall refrain from any action which might reflect on their position
as international officials responsible only to the ICA. Each State Party undertakes
to respect the exclusively international character of the responsibilities of the
Secretary-General and the staff and not to seek to influence them in the discharge
of their responsibilities. Any violation of responsibilities by a staff member shall be
submitted to the appropriate administrative tribunal as provided in the rules,
regulations and procedures of the ICA.
2. The Secretary-General and the staff shall have no financial interest in any activity
relating to development in cyberspace. Subject to their responsibilities to the ICA,
they shall not disclose, even after the termination of their functions, any industrial
secret, proprietary data which are transferred to the ICA in accordance with Annex
III, article 14, or any other confidential information coming to their knowledge by
reason of their employment with the ICA.
3. Violations of the obligations of a staff member of the ICA set forth in paragraph 2
shall, on the request of a State Party affected by such violation, or a natural or
juridical person, sponsored by a State Party and affected by such violation, be
submitted by the ICA against the staff member concerned to a tribunal designated
by the rules, regulations and procedures of the ICA. The Party affected shall have
the right to take part in the proceedings. If the tribunal so recommends, the
Secretary-General shall dismiss the staff member concerned.
4. The rules, regulations and procedures of the ICA shall contain such provisions as
are necessary to implement this article.
Article 169. Consultation and Cooperation with International and NonGovernmental Organizations
1. The Secretary-General shall, on matters within the competence of the ICA, make
suitable arrangements, with the approval of the Council, for consultation and
cooperation with international and non-governmental organizations (recognized by
the Economic and Social Council of the United Nations).
2. Any organization with which the Secretary-General has entered into an
arrangement under paragraph 1 may designate representatives to attend meetings
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of the organs of the ICA as observers in accordance with the rules of procedure of
these organs. Procedures shall be established for obtaining the views of such
organizations in appropriate cases.
3. The Secretary-General may distribute to States Parties written reports submitted
by the non-governmental organizations referred to in paragraph I on subjects in
which they have special competence and which are related to the work of the ICA.
Subsection F. Financial Arrangements Of The Authority
Article 171. Funds of the ICA
The funds of the ICA shall include:
a) assessed contributions made by members of the ICA in accordance with article
160, paragraph 2(d);
b) funds borrowed pursuant to article 174; and
c) voluntary contributions made by members or other entities.
Article 172. Annual Budget of the ICA
The Secretary-General shall draft the proposed annual budget of the ICA and
submit it to the Council. The Council shall consider the proposed annual budget
and submit it to the Assembly, together with any recommendations thereon. The
Assembly shall consider and approve the proposed annual budget in accordance
with article 160, paragraph 2(f).
Article 173. Expenses of the ICA
1. The administrative expenses of the ICA shall be a first call upon the funds of the
ICA.
2.
The contributions referred to in article 171, subparagraph (a), shall be paid into a
special account to meet the administrative expenses of the ICA unless the ICA has
sufficient funds from other sources to meet those expenses.
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Article 174. Borrowing Power of the ICA
1. The ICA shall have the power to borrow funds.
2. The Assembly shall prescribe the limits on the borrowing power of the ICA in the
financial regulations adopted pursuant to article 160, paragraph 2(e).
3. The Council shall exercise the borrowing power of the ICA.
4. States Parties shall not be liable for the debts of the ICA.
Article 175. Annual Audit
The records, books and accounts of the ICA, including its annual financial
statements, shall be audited annually by an independent auditor appointed by the
Assembly.
Subsection G. Legal Status, Privileges And Immunities
Article 176. Legal Status
The ICA shall have international legal personality and such legal capacity as may
be necessary for the exercise of its functions and the fulfillment of its purposes.
Article 177. Privileges and Immunities
To enable the ICA to exercise its functions, it shall enjoy in the territory of each
State Party the privileges and immunities set forth in this subsection.
Article 178. Immunity from Legal Process
The ICA, its property and assets, shall enjoy immunity from legal process except to
the extent that the ICA expressly waives this immunity in a particular case.
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Article 179. Immunity from Search and Any Form of Seizure
The property and assets of the ICA, wherever located and by whomsoever held,
shall be immune from search, requisition, confiscation, expropriation or any other
form of seizure by executive or legislative action.
Article 180. Exemption from Restrictions, Regulations, Controls and Moratoria
The property and assets of the ICA shall be exempt from restrictions, regulations,
controls and moratoria of any nature.
Article 181.
Archives and Official Communications of the ICA
1. The archives of the ICA, wherever located, shall be inviolable.
2. Proprietary data, industrial secrets or similar information and personnel records
shall not be placed in archives which are open to public inspection.
3. With regard to its official communications, the ICA shall be accorded by each
State Party treatment no less favorable than that accorded by that State to other
international organizations.
Article 182. Privileges and Immunities of Certain Persons Connected with the
ICA
Representatives of States Parties attending meetings of the Assembly, the Council
or organs of the Assembly or the Council, and the Secretary-General and staff of
the ICA, shall enjoy in the territory of each State Party:
a) immunity from legal process with respect to acts performed by them in the exercise
of their functions, except to the extent that the State which they represent or the
ICA, as appropriate, expressly waives this immunity in a particular case;
b) if they are not nationals of that State Party, the same exemptions from immigration
restrictions, alien registration requirements and national service obligations, the
same facilities as regards exchange restrictions and the same treatment in respect
of traveling facilities as are accorded by that State to the representatives, officials
and employees of comparable rank of other States Parties.
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Article 183. Exemption from Taxes and Customs Duties
1. Within the scope of its official activities, the ICA, its assets and property, its
income, and its operations and transactions, authorized by this Convention, shall be
exempt from all direct taxation and goods imported or exported for its official use
shall be exempt from all customs duties. The ICA shall not claim exemption from
taxes which are no more than charges for services rendered.
2. When purchases of goods or services of substantial value necessary for the official
activities of the ICA are made by or on behalf of the ICA, and when the price of
such goods or services includes taxes or duties, appropriate measures shall, to the
extent practicable, be taken by States Parties to grant exemption from such taxes
or duties or provide for their reimbursement. Goods imported or purchased under
an exemption provided for in this article shall not be sold or otherwise disposed of
in the territory of the State Party which granted the exemption, except under
conditions agreed with that State Party.
3. No tax shall be levied by States Parties on or in respect of salaries and emoluments
paid or any other form of payment made by the ICA to the Secretary-General and
staff of the ICA, as well as experts performing missions for the ICA, who are not
their nationals.
Subsection H. Suspension of the Exercise of Rights and Privileges of
Members
Article 184. Suspension of the Exercise of Voting Rights
A State Party which is in arrears in the payment of its financial contributions to the
ICA shall have no vote if the amount of its arrears equals or exceeds the amount of
the contributions due from it for the preceding two full years. The Assembly may,
nevertheless, permit such a member to vote if it is satisfied that the failure to pay is
due to conditions beyond the control of the member.
Article 185. Suspension of Exercise of Rights and Privileges of Membership
1. A State Party which has grossly and persistently violated the provisions of this Part
may be suspended from the exercise of the rights and privileges of membership by
the Assembly upon the recommendation of the Council.
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2. No action may be taken under paragraph 1 until the Cyberspace Disputes Chamber
has found that a State Party has grossly and persistently violated the provisions of
this Part.
The above provisions establish a system based on international cooperation and
empowered to adopt policies to create accountability in cyberspace. Enforcement of these
policies is a necessary complement for this proposed regime to be effective. As with
Bolero's electronic bills of lading Rule Book, enforcement requires a legally binding
regime empowered to resolve claims. As indicated in the next Section V, the LOS
accomplishes enforcement on the high seas in part by establishing standard avenues to
resolve disputes.
SECTION 5. SETTLEMENT OF DISPUTES AND ADVISORY OPINIONS
Article 186. Cyberspace Disputes Chamber of the International Tribunal for the
Law of Cyberspace
The establishment of the Cyberspace Disputes Chamber (CDC) of the International
Tribunal for the Law of Cyberspace and the manner in which it shall exercise its
jurisdiction shall be governed by the provisions of this section, of Part XV and of
Annex VI.
Article 187. Jurisdiction of the CDC of the International Tribunal for the
Law of Cyberspace
The CDC shall have jurisdiction under this Part and the Annexes relating thereto in
disputes with respect to activities in cyberspace falling within the following
categories:
a) disputes between States Parties concerning the interpretation or application of this
Part and the Annexes relating thereto;
b) disputes between a State Party and the ICA:
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acts or omissions of the ICA or of a State Party alleged to be in violation of
this Part or the Annexes relating thereto or of rules, regulations and procedures
of the ICA adopted in accordance therewith; or
ii) acts of the ICA alleged to be in excess ofjurisdiction or a misuse of power;
c) disputes between parties to a virtual contract, being States Parties, the ICA, state
enterprises and natural or juridical persons concerning acts or omissions of a party
to the contract relating to activities in cyberspace and directed to the other or
directly affecting its legitimate interests;
d) any other disputes for which the jurisdiction of the Chamber is specifically
provided in this Convention.
Article 188. Submission of Disputes to a Special Chamber of the International
Tribunal for the Law of Cyberspace or an Ad Hoc Chamber of
the CDC or to Binding Commercial Arbitration
1. Disputes between States Parties referred to in article 187, subparagraph (a), may
be submitted:
a) at the request of the parties to the dispute, to a special chamber of the International
Tribunal for the Law of Cyberspace to be formed in accordance with Annex VI,
articles 15 and 17; or
b) at the request of any party to the dispute, to an ad hoc chamber of the CDC to be
formed in accordance with Annex VI, article 36.
2.
a) A commercial arbitral tribunal to which the dispute is submitted shall have no
jurisdiction to decide any question of interpretation of this Convention. Such
question shall be referred to the CDC for a ruling.
b) If, at the commencement of or in the course of such arbitration, the arbitral tribunal
determines, either at the request of any party to the dispute or proprio motu, that
its decision depends upon a ruling of the CDC, the arbitral tribunal shall refer such
question to the CDC for such ruling. The arbitral tribunal shall then proceed to
render its award in conformity with the ruling of the CDC.
c) In the absence of a provision in a contract on the arbitration procedure to be
applied in a dispute, the arbitration shall be conducted in accordance with the
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UNCITRAL Arbitration Rules or such other arbitration rules as may be prescribed
in the rules, regulations and procedures of the ICA, unless the parties to the
dispute otherwise agree.
Article 189. Limitation on Jurisdiction with Regard to Decisions of the ICA
The CDC shall have no jurisdiction with regard to the exercise by the ICA of its
discretionary powers in accordance with this Part; in no case shall the CDC
substitute its discretion for that of the ICA. Without prejudice to article 191, in
exercising its jurisdiction pursuant to article 187, the CDC shall not pronounce
itself on the question of whether any rules, regulations and procedures of the ICA
are in conformity with this Convention, nor declare invalid any such rules,
regulations and procedures. Its jurisdiction in this regard shall be confined to
deciding claims that the application of any rules, regulations and procedures of the
ICA in individual cases would be in conflict with the contractual obligations of the
parties to the dispute or their obligations under this Convention, claims concerning
excess of jurisdiction or misuse of power, and to claims for damages to be paid or
other remedy to be given to the party concerned for the failure of the other party
to comply with its contractual obligations or its obligations under this Convention.
Article 190. Participation and Appearance of Sponsoring States Parties in
Proceedings
1. If a natural or juridical person is a party to a dispute referred to in article 187, the
sponsoring State shall be given notice thereof and shall have the right to participate
in the proceedings by submitting written or oral statements.
2. If an action is brought against a State Party by a natural or juridical person
sponsored by another State Party in a dispute referred to in article 187,
subparagraph (c), the respondent State may request the State sponsoring that
person to appear in the proceedings on behalf of that person. Failing such
appearance, the respondent State may arrange to be represented by a juridical
person of its nationality.
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Advisory Opinions
The CDC shall give advisory opinions at the request of the Assembly or the
Council on legal questions arising within the scope of their activities. Such
opinions shall be given as a matter of urgency.
Part XV (Settlement of Disputes) and Annexes V (Conciliation), VI (Statute of the
International Tribunal for the Law of the Sea), VII (Arbitration), and VIII (Special
Arbitration) of the LOS offer detailed specifications for dispute resolution. These sections
may be used almost in their entirety to accomplish the same goals for the cyberspace
regime proposed here. We present here a minor tailoring of these provisions for
cyberspace and leave to the Appendices the remaining provisions of these sections that
require no such modification. 64 Thus any provisions of these sections not presented or
identified here may be directly applied in their original form to the proposed cyberspace
regime.
Part XV establishes rules for the Settlement of Disputes. Generally, all references
to the International Tribunal for the Law of the Sea should be changed to refer to the
International Tribunal for Cyberspace. All references to the Seabed Dispute Chamber
should be changed to refer to the Cyberspace Dispute Chamber. References to vessels
should refer to virtual sites and references to crew should refer to personnel. Specifically:
PART XV. SETTLEMENT OF DISPUTES
Article 287. Choice of procedure
* paragraph 1(a) should be changed to read:
1. When signing, ratifying or acceding to this Convention or at any time thereafter, a
State shall be free to choose, by means of a written declaration, one or more of the
64 Inthe
Appendices, we present Parts XV and XVI and Annexes V, VI, VII, and VIII in their entirety,
including, in their original form, the provisions modified here.
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following means for the settlement of disputes concerning the interpretation or
application of this Convention:
(a) the International Tribunal for the Law of Cyberspace established in accordance
with Annex VI;
* paragraph 2 should be changed to read:
2. A declaration made under paragraph 1 shall not affect or be affected by the
obligation of a State Party to accept the jurisdiction of the Cyberspace Disputes
Chamber of the International Tribunal for the Law of Cyberspace to the extent and
in the manner provided for in Part XI, section 5.
Article 288. Jurisdiction
* paragraph 3 should read:
3. The Cyberspace Disputes Chamber of the International Tribunal for the Law of the
Sea established in accordance with Annex VI, and any other chamber or arbitral
tribunal referred to in Part XI, section 5, shall have jurisdiction in any matter which
is submitted to it in accordance therewith.
Article 290. Provisional measures
* paragraph 5 should read:
5. Pending the constitution of an arbitral tribunal to which a dispute is being
submitted under this section, any court or tribunal agreed upon by the parties or,
failing such agreement within two weeks from the date of the request for
provisional measures, the International Tribunal for the Law of Cyberspace or the
Cyberspace Disputes Chamber, may prescribe, modify or revoke provisional
measures in accordance with this article if it considers that primafacie the tribunal
which is to be constituted would have jurisdiction and that the urgency of the
situation so requires. Once constituted, the tribunal to which the dispute has been
submitted may modify, revoke or affirm those provisional measures, acting in
conformity with paragraphs 1 to 4.
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* Article 292 should be adapted as follows:
Article 292. Prompt release of virtual sites and personnel
1. Where the authorities of a State Party have detained a virtual site flying the flag of
another State Party and it is alleged that the detaining State has not complied with
the provisions of this Convention for the prompt release of the virtual site or its
personnel upon the posting of a reasonable bond or other financial security, the
question of release from detention may be submitted to any court or tribunal
agreed upon by the parties or, failing such agreement within 10 days from the time
of detention, to a court or tribunal accepted by the detaining State under article
287 or to the International Tribunal for the Law of Cyberspace, unless the parties
otherwise agree.
2. The application for release may be made only by or on behalf of the flag State of
the virtual site.
3. The court or tribunal shall deal without delay with the application for release and
shall deal only with the question of release, without prejudice to the merits of any
case before the appropriate domestic forum against the virtual site, its owner or its
personnel. The authorities of the detaining State remain competent to release the
virtual site or its personnel at any time.
4. Upon the posting of the bond or other financial security determined by the court or
tribunal, the authorities of the detaining State shall comply promptly with the
decision of the court or tribunal concerning the release of the virtual site or its
personnel.
* Article 297 should be re-examined entirely. Some modifications are considered here:
Article 297. Limitations on applicability of section 2
1. Disputes concerning the interpretation or application of this Convention with
regard to the exercise by a State of its sovereign rights or jurisdiction provided for
in this Convention shall be subject to the procedures provided for in section 2 in
the following cases:
(a) when it is alleged that a State has acted in contravention of the provisions of this
Convention in regard to the freedoms and rights of virtual navigation, the
establishment of virtual sites, or in regard to other internationally lawful uses of
cyberspace;
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(b) when it is alleged that a State in exercising the aforementioned freedoms, rights or
uses has acted in contravention of this Convention or of laws or regulations
adopted by another State in conformity with this Convention and other rules of
international law not incompatible with this Convention; or
(c) when it is alleged that a State has acted in contravention of specified international
rules and standards for the protection and preservation of the virtual environment
which are applicable to the State and which have been established by this
Convention or through a competent international organization or diplomatic
conference in accordance with this Convention.
2. (a) Disputes concerning the interpretation or application of the provisions of this
Convention with regard to scientific research shall be settled in accordance with
section 2.
3. (a) Where no settlement has been reached by recourse to section 1 of this Part, a
dispute shall be submitted to conciliation under Annex V, section 2, at the
request of any party to the dispute, when it is alleged that:
(i) a State has manifestly failed to comply with its obligations to ensure
through proper conservation and management measures that the
maintenance of the resources is not seriously endangered.
(b) In no case shall the conciliation commission substitute its discretion for that of the
State.
(c) The report of the conciliation commission shall be communicated to the
appropriate international organizations.
(d) In negotiating agreements, States Parties, unless they otherwise agree, shall include
a clause on measures which they shall take in order to minimize the possibility of a
disagreement concerning the interpretation or application of the agreement, and on
how they should proceed if a disagreement nevertheless arises.
[Please refer to Appendix A for the original and remaining provisions of this Part.]
The Part XVI provisions require two modifications for cyberspace: Article 301
should be re-titled "Peaceful uses of cyberspace"; Article 303 should be eliminated. The
Part XVI provisions are presented in Appendix B.
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Annex V describing Conciliation rules may be directly and entirely applied. It is
presented in Appendix C.
Annex VI of the LOS establishes the International Tribunal for the Law of the Sea.
This should be re-fashioned to establish the International Tribunal for the Law of
Cyberspace. All references to the Seabed Dispute Chamber should be changed to refer to
the Cyberspace Dispute Chamber, specifically Section 4, and in particular Articles 35 and
36. Accordingly:
Article 14. Cyberspace Disputes Chamber
A Cyberspace Disputes Chamber shall be established in accordance with the
provisions of section 4 of this Annex. Its jurisdiction, powers and functions shall
be as provided for in Part XI, section 5.
Article 19. Expenses of the Tribunal
1. The expenses of the Tribunal shall be borne by the States Parties and by the
International Cyberspace Authority (ICA) on such terms and in such a manner as
shall be decided at meetings of the States Parties.
2. When an entity other than a State Party or the ICA is a party to a case submitted
to it, the Tribunal shall fix the amount which that party is to contribute towards the
expenses of the Tribunal.
Article 25. Provisional measures
1. In accordance with article 290, the Tribunal and its Cyberspace Disputes Chamber
shall have the power to prescribe provisional measures.
[Please refer to Appendix D for the original and remaining provisions of this Annex.]
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Annex VII addresses Arbitration and requires only one reference change: the two
references to the International Tribunal for the Law of the Sea should be changed to refer
to the International Tribunal for the Law of Cyberspace in paragraph 3(e). The original
text is shown in Appendix E.
Annex VIII requires the following modifications for cyberspace:
ANNEX VIII. SPECIAL ARBITRATION
Article 1. Institution of proceedings
Subject to Part XV, any party to a dispute concerning the interpretation or
application of the articles of this Convention relating to (1) resources, (2)
protection and preservation of the virtual environment, (3) scientific research, or
(4) virtual navigation, may submit the dispute to the special arbitral procedure
provided for in this Annex by written notification addressed to the other party or
parties to the dispute. The notification shall be accompanied by a statement of the
claim and the grounds on which it is based.
Article 2. Lists of experts
1. A list of experts shall be established and maintained with respect to (1) cyberspace
resources, (2) protection and preservation of the virtual environment, (3) scientific
research, and (4) virtual navigation.
paragraph 2 should be eliminated.
Article 5. Fact finding
1. The parties to a dispute concerning the interpretation or application of the
provisions of this Convention relating to (1)virtual resources, (2) protection and
preservation of the virtual environment, (3) scientific research, or (4) virtual
navigation, may at any time agree to request a special arbitral tribunal constituted
in accordance with article 3 of this Annex to carry out an inquiry and establish the
facts giving rise to the dispute.
[Please refer to Appendix F for the original and remaining provisions of Annex VIII.]
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V.
The Proposed Legal Regime
The legal regime described in the previous Part is designed to create an
intergovernmental system that supports greater security in cyberspace. As described, the
proposed regime creates a virtual nationality system whereby States retain jurisdiction
over its registered cybernauts and virtual sites. In international law, a citizen under foreign
jurisdiction may request that her national State become involved in any exercise of that
foreign jurisdiction; however, a national State is not obligated to intercede on its citizen's
behalf and may choose not to act, especially when interests in international comity and
respect for the foreign State's sovereignty outweigh that particular citizen's individual
interests. While a cybernaut may never physically leave its physical nationality State,
under the proposed regime, his virtual actions are not free from foreign jurisdiction if
physical consequences result in a foreign State. Of course, established laws and
international custom in physical matters-such as the extradition of a person to another
country's court-will come into play when the exercise or enforcement of virtual laws
naturally transcends from the virtual to the physical realm.
With respect to nonphysical conflicts, like information corruption and intellectual
property violation claims, the virtual national State is obligated to act to investigate and
remedy such occurrences. If no virtual nationality exists, no State has formal jurisdiction
to act but, likewise, no State has formal jurisdiction to oppose any action taken. A
cybernaut's physical nationality State always retains at least concurrent jurisdiction over
its citizen as physical persons; that State is obligated to cooperate to remedy any virtual
incidents. Again, it may prove most effective if physical and virtual nationality are of the
same State.
In the United States, cyberspace cases have raised jurisdiction questions between
states. A forum state's particular long-arm statute establishes personal jurisdiction over a
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non-resident defendant if that defendant has sufficient contact with the forum state.
General jurisdiction exists when a defendant's activities in the forum state are "substantial"
or "continuous and systematic. "65 Specific jurisdiction is determined often by the use of
the following three-part test:
66
1. whether the defendant "purposefully availed" herself of the privilege of acting in the
forum state or causing a consequence in the forum state, thereby invoking the benefits
and protections of its laws;
2. whether the plaintiff' s cause of action arises from the defendant's forum state-related
activities;
3. whether the acts of the defendant or consequences caused by the defendant have a
substantial enough connection with the forum state to make the exercise ofjurisdiction
over the defendant reasonable.
Though this would seem straightforward in principle, its application has not been
consistent.
In Bensusan Restaurant Corporation v. Richard B. King,67 the court held that New
York state law does not allow jurisdiction for a trademark dilution claim in a case where
plaintiff held a trademark for the name of its New York City jazz club, "Blue Note," and
defendant maintained a web page advertising his own Blue Note club in Missouri, even if,
as a result, plaintiff suffered injury in New York. Similarly, in Hornell Brewing Co. v.
Seth Big Crow, the U.S. court of appeals held that conduct a brewery's conduct outside
the Rosebud Sioux Reservation does not fall within the Tribe's inherent sovereign
65 Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-416 (1984).
66 Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 270(9th Cir. 1995); CompuServe,
Incorporated v. Richard S. Patterson, individually, and Flashpoint Development, 96a0228p.06, 1996 FED
App. 0228P (6th Cir.), July 22, 1996, URL:
<http://caselaw.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/6th/960228p.html>.
67 Bensusan Restaurant Corporation v. Richard B. King, URL:
<http://laws.findlaw.com/2nd/969344.html>, September 10, 1997.
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The brewery used the name "Crazy Horse" Tribal courts lacked jurisdiction in
a suit challenging the brewery's use of the name "Crazy Horse" in the manufacture, sale,
and distribution of an alcoholic beverage called "The Original Crazy Horse Malt Liquor,"
and alleging defamation, violation of right of publicity, and negligent and intentional
infliction of emotional distress. The court held that "[t]he Internet is analogous to the use
of the airwaves for national broadcasts over which the Tribe can claim no proprietary
interest ...."68
Advertisement alone appears to be insufficient for personal jurisdiction in another
state; there must be "something more" that "indicate[s] that the defendant purposefully
(albeit electronically) directed his activity in a substantial way to the forum state." 69 In
CompuServe, Incorporated v. Richard S. Patterson, individually, and Flashpoint
Development, 70 the appellate court held that Patterson was subject to Ohio jurisdiction for
marketing and distributing his software through Ohio-based CompuServe. In fact,
Patterson had signed a contract acknowledging Ohio state law jurisdiction over any issue
arising from his contracted use of CompusServe's computer system. Similarly, in
Panavision International v. Toeppen, 71 the defendant, in Illinois, had registered domain
names on the Internet, some of which were Panavision trademarks, and then demanded
$13,000 from Panavision to release those domain names. Because Toeppen's virtual acts
were "aimed at Panavision in California, and caused it to suffer injury there," 72 the court
held that Toeppen was subject to personal jurisdiction in California.
68 Id.
69 Panavision
International v. Toeppen, URL: <http://laws.findlaw.conm/9th/9755467.html>, April 17,
1998, citing the Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997), holding that Arizona
courts could not exercise personal jurisdiction over a Florida corporation with the same name as an
Arizona corporation that held the registered trademark over that name, because the Florida corporation
had no contact with Arizona except for a web page on the Internet accessible to anyone.
70 CompuServe, Incorporated v. Richard S.Patterson, individually, and Flashpoint Development,
96a0228p.06, 1996 FED App. 0228P (6th Cir.), July 22, 1996, URL:
<http://caselaw.findlaw.com/scripts/getcase.pl?navby-search&case=/data2/circs/6th/960228p.htm
71 URL: <http://laws.findlaw.com/9th/9755467.html>, April 17, 1998.
72 Id.
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These cases are troubling because they seek to apply physical laws to cyberspace.
The courts recognize that virtual activity alone is not enough to justify personal
jurisdiction but "something more" 73 is hardly adequate to promote consistent legal
practice. The Internet is at once likened to broadcasting through air and then grounded
within a state's boundaries by motive or intent of the offending party. Three of the four
cases above involve the allegedly misappropriation of a name. Taking into account the
particulars of the three cases, the potential damages incurred by each infringed party
would seem to be relatively comparable: loss of revenue, value dilution of the name or
associated image.
These problems of vagueness and inconsistency are ameliorated within the
proposed regime for cyberspace by maintaining cyberspace activity as strictly virtual.
Jurisdiction is extended to a non-virtual nationality State when there is a direct physical
consequence of the virtual activity within that non-virtual nationality State's jurisdiction.
Otherwise the virtual nationality State has jurisdiction. This virtual jurisdiction is
exclusive with respect to virtual sites and potentially concurrent in the case of cybernauts
only with the physical nationality state of a cybernaut. While the proposed regime is
limited to nation States, it can be extrapolated further for use within the United States and
other countries with internal state or province governments, such as Canada.
If the above cases involved different nation States under the proposed regime, in
each of the cases the virtual nationality State would have jurisdiction and an obligation to
rectify the matter. While proximate cause may become an issue, "direct" physical
consequence should be interpreted as clearly direct and clearly physical, such as computer
tampering resulting in an explosion at an automated factory or in the failure of burglar
alarms at a bank, and not the spoiling of perishables at a wholesale outlet because of an
erroneous and malicious virtual report of contamination.
73 Id.
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While software tampering may be traced working backwards from the results of
such actions, two major difficulties continue to confound us regarding software
depredation. The first is distinguishing information depredation from allowed copying of
information. The almost instantaneous copying and disseminating of information is, after
all, one of the key attributes of cyberspace. The second difficulty is in detecting
depredation of information amidst an environment that is entirely composed of information
transfers. To protect programs on the Internet from depredation, programmers are
advised to watermark their programs by including hidden or buried code in the programs
to identify their original programmers. Other common advisories to programmers include
making only older versions of programs freely available to cybernauts, releasing programs
of limited quality for use in cyberspace to make their copying for illegal distribution
unworthwhile, and limiting product support only to those who have paid for the software.
Essentially, these tactics are efforts to devalue the programs available online relative to
those that must be purchased. 74
Preventive measures such as these appear to be our only current responses to
software depredation until our technology advances to allow for adequate policing of
cyberspace, and until different national policies regarding piracy become less disparate. At
present, different countries have very different levels of intellectual property protection,
complicating the technical barriers to piracy prohibition; in fact, some countries grant
programs little or no proprietary protection, allowing software to be freely copied and
distributed. Virtual-based intellectual property concerns would seem to be rooted in an
extreme case scenario where because of loss in revenue, software development becomes
too costly an enterprise to continue. One brighter note is the fact that, at least currently,
only a very educated minority have the skills to pirate programs in cyberspace; in fact, it
takes a relatively high degree of 'cyber-skill' to even locate programs illegally made
available to copy, much less than to steal into protected computer systems to copy
74 See Samuelson, Pamela, Raandall Davis, Mitchell D.Kapor, J. H. Reichman, A Brief Manifesto on the
Legal Protection of Computer Programs.
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programs. In other words, the average web page-reading cybernaut is not be able to take
advantage of pirated programs, and fewer still are able to pirate programs. Still, piracy
remains a significantly perplexing problem and one that requires the cooperation of
different States to be managed, as mandated by the proposed Article 117/118.
Security in cyberspace is at issue in another of the proposed regime's functions: to
promote the development of electronic commerce. The proposed ICA, however, does not
create a commission to promote electronic commerce, nor a registry as suggested by the
Bolero system. For that matter, nor does the regime create any commission to work
towards intellectual property standards and protection. Because the means to reach these
cyberspace goals will depend on technological developments as well as international
cooperation, the regime leaves the ICA free to work towards these goals by the most
effective means possible at any given time. At the same time, it is expected that examples
that are suggested by other, related developments, like Bolero, would be given full
consideration as possible means of realizing the goals of the ICA, and of this proposed
regime. Part XVI creates a general "good faith" obligation on the international
community, to cooperate, conform, and carry out the provisions of this proposed
cyberspace regime. By this principles- or goal-driven construction, it is hoped that the
proposed regime would promote the progress of cyberspace regulation without
discouraging international participation.
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CONCLUSION
As the Internet continues to grow dramatically both in its size and in its presence in
everyday life, cyberspace law seems mired in the breach between the physical and virtual
world. The Telecommunications Act of 1996, the Communications Decency Act of 1996
(CDA) prohibits Internet transmission of "obscene or indecent" communications. 75 As in
the cases discussed earlier, jurisdiction is problematical in United States v. Thomas where
the defendant was found guilty of violating the CDA and was subsequently punished under
Tennessee law even though he and his telephone-computer system were in California. 76
By United States law, jurisdiction in pornography prosecution extends to any physical
district into which the offending material is sent. 77 The result of this case, in and of itself,
may be desired, as the presence or availability of pornography on the Internet is extensive
and offensive to many people. The way that this result has been accomplished, however,
is less than optimal.
Enacting a domestic law like the CDA to rout pornography trade from cyberspace
is ill-conceived, except perhaps as a starting point from which to build cyberspace law. By
the CDA, any offender anywhere in the world may be tried in Tennessee but the CDA's
reach as a domestic law cannot be enforced outside of the nation; a law that cannot be
enforced is weakened and compromises the credibility of the judicial system that put it in
force. The goal of the CDA in cyberspace would be better accomplished by pursuing a
ban by international agreement. Useful prototypes for such a ban may be the prohibitions
on the high seas of slave trading and of illicit traffic in narcotic drugs/psychotropic
75 Title V, Section 502, Communications Decency Act of 1996, The Telecommunications Act of 1996.
URL: <http://www.technologylaw.com/techlaw/act.html>.
76 United States v. Thomas, 1996 FED App. 0032P (6th Cir.), URL:
<http://caselaw.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/6th/960032p.html>.
77 Id. (quoting United States v. Bagnell, 679 F.2d 826, 830 (11th Cir. 1982), cert. denied, 460 U.S. 1047
(1983); United States v. Peraino, 645 F.2d 548, 551 (6th Cir. 1981)).
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substances, as formalized by LOS Articles 99/110(1)(b) and 108 respectively.78 The
consequences of pornographic activity in cyberspace would be prosecutable then in any
State Party's jurisdiction. By international agreement, foreign States could be better relied
upon to cooperate towards the shared goal of suppressing pornography. This approach is
the fundamental principle for the LOS-based cyberspace legal regime proposed by this
paper.
Another "hot," and difficult, legal controversy in cyberspace is the issue of privacy
or information security in general. At present, cyberspace does not exist without
hardware borders to the physical world; cybernauts cannot fully escape their physical
reality for the virtual one. Also, most cybernauts, while traversing the virtual world, do
not, or cannot, abandon their physical world expectations, say, for privacy or security. At
the same time, they lack the skills to protect those interests in cyberspace. As a result, the
"tenet" of individual autonomy that has been a mainstay of cyberspace pioneers is
becoming a competing goal with the growing desire for individual privacy secured by
public regulation. Some virtual enthusiasts would respond that the cry for regulation is a
physical world reaction and inappropriate for cyberspace. Notwithstanding that nor the
78 Articles 99, 110(1)(b), 108, United Nations Convention on the Law of the Sea, The Law of the
Sea, United Nations, New York, 1983, p. 33, 35.
Article 99. Prohibition of the transport of slaves
Every State shall take effective measures to prevent and punish the transport of slaves in ships
authorized to fly its flag and to prevent the unlawful use of its flag for that purpose. Any slave
taking refuge on board any ship, whatever its flag, shall ipso facto be free.
Article 110. Right of visit
1. Except where acts of interference derive from powers conferred by treaty, a warship which
encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in
accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable
ground for suspecting that:
(b)the ship is engaged in the slave trade;
Article 108. Illicit traffic in narcotic drugs or psychotropic substances
1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic
substances engaged in by ships on the high seas contrary to international conventions.
2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in
illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other
States to suppress such traffic.
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virtual barriers to monitoring, a "security regulation vs. autonomy" balance of some sort
appears to be needed.
In the United States, a 1998 poll by Business Week/Harris found that most
Americans feel that Congress should pass laws regarding the ways that personal
information is collected and used on the Internet, such data protections have met strong
opposition from lobbyists. 79 Meanwhile, and perhaps a reason for some of the strong
lobbying efforts, according to the Federal Trade Commission in its Online Privacy: A
Report to Congress:
the vast majority of online businesses have yet to adopt even the most
fundamental fair information practice.
...Moreover, ...trade
association guidelines submitted to the Commission do not reflect industry
acceptance of... basic fair information practice principles. In addition, the
guidelines, with limited exception, contain none of the enforcement
mechanisms needed for an effective self-regulatory regime." 81
At present the Commission has little ability to require businesses to exercise fair
information practices. 82
The challenge seems to have been accepted by the European Union (EU). In
October 1998, the EU's Directive on Data Protection (DDP) is scheduled to take effect,
after which the transfer of personally identifiable information outside the EU will be
prohibited, absent clear consent of the individual, for countries without "adequate"
79
"LEAVING INDUSTRY TO "REGULATE" ITSELF WILL WORSEN PRIVACY INVASIONS,
EXPERTS SAY," Washington, DC, June 22, 1998. URL:
<http://www.junkbusters.com/ht/en/nrl0.html>.
80 Federal Trade Commission, "Conclusions," Online Privacy: A Report to Congress, June 1998. URL:
<http://www.ftc.gov/reports/privacy3/conclu.htm> (specifically, there is a lack of consumer notice or even
awareness regarding information practices).
81 Id.
82 Id.
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protections for individual privacy. 83 The objective of the DDP is to "protect the
fundamental rights and freedoms of natural persons, and in particular their right to privacy
with respect to the processing of personal data."84 The potential number of data transfers
that may become forbidden or disruptive by the DDP is large.8 5 The ways and means that
the EU will enforce the DDP are not clear. Still, if the DDP's impact is severe, and if
other States adopt similar initiatives, the regulation-autonomy debate in cyberspace may
become moot.
Controversy in the United States over the DDP is a product of the regulationautonomy debate. The US approach to data regulation has been selective and topical,
restricted to specific circumstances, such as information disclosure by credit reports,
government agencies, cable TV suppliers and video rental stores.8 6 Otherwise, public
regulation has maintained a "hands-off," small government "respect" for private
autonomy. The EU, meanwhile, has no such philosophy adopting a more uniform and
comprehensive view to act to insure individual privacy over autonomy.
This kind philosophical conflict is commonplace in international relations. Critics
of "unilateral" actions in international arenas, like the DDP, believe such actions are
disrespectful, sometimes even abusive, of the diverse international community. With the
passing of the Oil Pollution Act of 1990 (OPA), the United States mandated the use of
double-hulled oil tankers for entry into United States ports.87 The international shipping
community balked at what they perceived to be American arbitrariness in requiring an
exclusive tanker design rather than, say, a vessel safety performance-level. At the same
83
Swire, Peter P., "Some Effects of the Data Protection Directive On U.S. Industry," July 23, 1997. URL:
<http://www.osu.edu/units/law/swire.htm>.
84 "Object of the Directive," Article 1(1), Chapter I, General Provisions, 1995 European Community
Directive on Data Protection (95/46/EC). URL: <http://www.osu.edu/units/law/swire.htm>.
85 Swire, Peter P. and Robert E. Litan, "Avoiding a Showdown over EU Privacy Laws," Brookings
Policy
Brief Series, February 28, 1998, The Brookings Project on the European Privacy Directive, URL:
<http://www.osu.edu/units/law/swire.htm>.
86 Id., referring to Fred Cate, Privacy in the Information Age, Brookings Institution Press,
1997.
87 Tank vessel construction standards, Oil Pollution Act of 1990, 46 U.S.C. § 3703 (a) (1996),
URL:
<http://www.law.cornell.edu/uscode/46/3703a.shtml>, <http://www.law.cornell.edu/cgi-bin/fx>.
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time, some admitted that, however imperfect the US action was, in the end, it still elevated
the overall safety threshold for oil shipping to the US, and thus for oil shipping in general.
Similarly, one might argue that , no matter how imperfect, initiatives like the CDA and the
DDP may promote the development of cyberspace law.
While this is almost certainly true to some extent, information can be tailored for
different requirements with little additional cost that may not outweigh other agendas. In
other words, if the European Union mandates certain requirements for information
transactions, an affected party may not wish to make those requirements standard and may
be able to configure her information to fulfill the EU's requirements only when transacting
information with the EU. By contrast, the US OPA requirements are becoming industry
standards because oil tankers cannot change from a double hull construction when visiting
non-US ports.
Also, while competing approaches to the same problem may be very educational,
at some point, the overlap in intellectual effort would seem to be an unnecessary
utilization of valuable resources that may be directed more productively. Consider for
example electronic commerce and digital signature legislation efforts that include, as of
August 11, 1998: the United Nations Commission on International Trade Law's Model
Law on Electronic, The US' National Conference of Commissioners on Uniform State
Laws' Uniform Electronic Treansactions Act, and separate initiatives by fifty of the United
States, the US Congress, the US Treasury Department, the US Federal Reserve Board,
the US Food and Drug Administration, the American Bar Association, the International
Chamber of Commerce, the European Union, the Organisation for Economic Cooperation and Development, Argentina, Australia, Canada, Denmark, Columbia, France
Germany, Italy, Japan, Malaysia, the Netherlands, Russia, Singapore, Sweden, and the
United Kingdom. 8 8
88
"Summary Of Electronic Commerce And Digital Signature Legislation," McBride Baker & Coles,
August 11, 1998, URL: <http://www.mbc.com/ds_sum.html>.
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At some point, cultural clashes in political philosophies regarding information
transactions and conflicting or simply separate approaches to the management of those
transactions, should be reconciled if cyberspace activity is to develop efficiently.
Technologically, this has already been recognized to prevent the proliferation of different
data standards and operating system configurations that do not recognize and cannot
communicate other data standards and operating system configurations. As a monument
to concerted, diplomatic, international negotiation and successful effort, the LOS is an
important prototype for cyberspace that must be examined and carefully considered, once
a legal regime to effectively regulate cyberspace is a recognized as a common goal.
The history of the LOS makes clear that such international cooperation need not
be absolute. Even if certain countries resist recognizing developing cyberspace laws, such
protest can become nullified if such law become recognized as customary by the general
international community. The ease of the modification of the LOS for cyberspace, as
described in this paper, may be understandable given some of the issues addressed, like
dispute resolution; nevertheless, that same ease lends credibility to the 'LOS as an
analogue' premise underlying the cyberspace regime proposed here. As given by the
obligation created by Article 117/118, the different States of the physical world must
cooperate and act towards an improved management of cyberspace if the potential of
cyberspace is to be effectively realized.
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Appendix A
United Nations Convention on the Law of the Sea - Part XV8
9
PART XV
SETTLEMENT OF DISPUTES
SECTION 1. GENERAL PROVISIONS
Article 279
Obligation to settle disputes by peaceful means
States Parties shall settle any dispute between them concerning
the interpretation or application of this Convention by peaceful
means in accordance with Article 2, paragraph 3, of the Charter of
the United Nations 9 0 and, to this end, shall seek a solution by
the means indicated in Article 33, paragraph 1, of the Charter. 9 1
Article 280
Settlement of disputes by any peaceful means chosen by the parties
Nothing in this Part impairs the right of any States Parties to
agree at any time to settle a dispute between them concerning the
interpretation or application of this Convention by any peaceful
means of their own choice.
89 Part XV, United Nations Convention on the Law of the Sea, The
Law of the Sea, United Nations, New York, 1983, p. 97-104.
90 "All Members shall settle their international disputes by
peaceful means in such a manner that international peace and
security, and justice, are not endangered." Article 2, paragraph
3, Chapter I, "Purposes and Principles," Charter of the United
Nations, URL: <http://member.aol.com/Dhinds2000/chapterl.html>.
91 "The parties to any dispute, the continuance of which is likely
to endanger the maintenance of international peace and security,
shall, first of all, seek a solution by negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort
to regional agencies or arrangements, or other peaceful means of
their own choice." Article 33, paragraph 1, Chapter VI, "Pacific
Settlement of Disputes," Charter of the United Nations, URL:
<http://member.aol.com/Dhinds2000/chapter6.html>.
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Article 281
Procedure where no settlement has been reached by the parties
1. If the States Parties which are parties to a dispute concerning
the interpretation or application of this Convention have agreed
to seek settlement of the dispute by a peaceful means of their own
choice, the procedures provided for in this Part apply only where
no settlement has been reached by recourse to such means and the
agreement between the parties does not exclude any further
procedure.
2. If the parties have also agreed on a time-limit, paragraph 1
applies only upon the expiration of that time-limit.
Article 282
Obligations under general, regional or bilateral agreements
If the States Parties which are parties to a dispute concerning
the interpretation or application of this Convention have agreed,
through a general, regional or bilateral agreement or otherwise,
that such dispute shall, at the request of any party to the
dispute, be submitted to a procedure that entails a binding
decision, that procedure shall apply in lieu of the procedures
provided for in this Part, unless the parties to the dispute
otherwise agree.
Article 283
Obligation to exchange views
1. When a dispute arises between States Parties concerning the
interpretation or application of this Convention, the parties to
the dispute shall proceed expeditiously to an exchange of views
regarding its settlement by negotiation or other peaceful means.
2. The parties shall also proceed expeditiously to an exchange of
views where a procedure for the settlement of such a dispute has
been terminated without a settlement or where a settlement has
been reached and the circumstances require consultation regarding
the manner of implementing the settlement.
Article 284
Conciliation
1. A State Party which is a party to a dispute concerning the
interpretation or application of this Convention may invite the
other party or parties to submit the dispute to conciliation in
accordance with the procedure under Annex V, section 1, or another
conciliation procedure.
2. If the invitation is accepted and if the parties agree upon the
conciliation procedure to be applied, any party may submit the
dispute to that procedure.
3. If the invitation is not accepted or the parties do not agree
upon the procedure, the conciliation proceedings shall be deemed
to be terminated.
~_ _I_
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_
4. Unless the parties otherwise agree, when a dispute has been
submitted to conciliation, the proceedings may be terminated only
in accordance with the agreed conciliation procedure.
Article 285
Application of this section to disputes submitted pursuant to Part
XI
This section applies to any dispute which pursuant to Part XI,
section 5, is to be settled in accordance with procedures provided
for in this Part. If an entity other than a State Party is a party
to such a dispute, this section applies mutatis mutandis.
SECTION 2. COMPULSORY PROCEDURES ENTAILING BINDING DECISIONS
Article 286
Application of procedures under this section
Subject to section 3, any dispute concerning the interpretation or
application of this Convention shall, where no settlement has been
reached by recourse to section 1, be submitted at the request of
any party to the dispute to the court or tribunal having
jurisdiction under this section.
Article 287
Choice of procedure
1. When signing, ratifying or acceding to this Convention or at
any time thereafter, a State shall be free to choose, by means of
a written declaration, one or more of the following means for the
settlement of disputes concerning the interpretation or
application of this Convention:
(a) the International Tribunal for the Law of the Sea
established in accordance with Annex VI;
(b) the International Court of Justice;
(c) an arbitral tribunal constituted in accordance with
Annex VII;
(d) a special arbitral tribunal constituted in accordance
with Annex VIII for one or more of the categories of
disputes specified therein.
2. A declaration made under paragraph 1 shall not affect or be
affected by the obligation of a State Party to accept the
jurisdiction of the Seabed Disputes Chamber of the International
Tribunal for the Law of the Sea to the extent and in the manner
provided for in Part XI, section 5.
3. A State Party, which is a party to a dispute not covered by a
declaration in force, shall be deemed to have accepted arbitration
in accordance with Annex VII.
_
___
_I
4. If the parties to a dispute have accepted the same procedure
for the settlement of the dispute, it may be submitted only to
that procedure, unless the parties otherwise agree.
5. If the parties to a dispute have not accepted the same
procedure for the settlement of the dispute, it may be submitted
only to arbitration in accordance with Annex VII, unless the
parties otherwise agree.
6. A declaration made under paragraph 1 shall remain in force
until three months after notice of revocation has been deposited
with the Secretary-General of the United Nations.
7. A new declaration, a notice of revocation or the expiry of a
declaration does not in any way affect proceedings pending before
a court or tribunal having jurisdiction under this article, unless
the parties otherwise agree.
8. Declarations and notices referred to in this article shall be
deposited with the Secretary-General of the United Nations, who
shall transmit copies thereof to the States Parties.
Article 288
Jurisdiction
1. A court or tribunal referred to in article 287 shall have
jurisdiction over any dispute concerning the interpretation or
application of this Convention which is submitted to it in
accordance with this Part.
2. A court or tribunal referred to in article 287 shall also have
jurisdiction over any dispute concerning the interpretation or
application of an international agreement related to the purposes
of this Convention, which is submitted to it in accordance with
the agreement.
3. The Seabed Disputes Chamber of the International Tribunal for
the Law of the Sea established in accordance with Annex VI, and
any other chamber or arbitral tribunal referred to in Part XI,
section 5, shall have jurisdiction in any matter which is
submitted to it in accordance therewith.
4. In the event of a dispute as to whether a court or tribunal has
jurisdiction, the matter shall be settled by decision of that
court or tribunal.
Article 289
Experts
In any dispute involving scientific or technical matters, a court
or tribunal exercising jurisdiction under this section may, at the
request of a party or proprio motu, select in consultation with
the parties no fewer than two scientific or technical experts
chosen preferably from the relevant list prepared in accordance
with Annex VIII, article 2, to sit with the court or tribunal but
without the right to vote.
^__~____
_
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Article 290
Provisional measures
1. If a dispute has been duly submitted to a court or tribunal
which considers that prima facie it has jurisdiction under this
Part or Part XI, section 5, the court or tribunal may prescribe
any provisional measures which it considers appropriate under the
circumstances to preserve the respective rights of the parties to
the dispute or to prevent serious harm to the marine environment,
pending the final decision.
2. Provisional measures may be modified or revoked as soon as the
circumstances justifying them have changed or ceased to exist.
3. Provisional measures may be prescribed, modified or revoked
under this article only at the request of a party to the dispute
and after the parties have been given an opportunity to be heard.
4. The court or tribunal shall forthwith give notice to the
parties to the dispute, and to such other States Parties as it
considers appropriate, of the prescription, modification or
revocation of provisional measures.
5. Pending the constitution of an arbitral tribunal to which a
dispute is being submitted under this section, any court or
tribunal agreed upon by the parties or, failing such agreement
within two weeks from the date of the request for provisional
measures, the International Tribunal for the Law of the Sea or,
with respect to activities in the Area, the Seabed Disputes
Chamber, may prescribe, modify or revoke provisional measures in
accordance with this article if it considers that prima facie the
tribunal which is to be constituted would have jurisdiction and
that the urgency of the situation so requires. Once constituted,
the tribunal to which the dispute has been submitted may modify,
revoke or affirm those provisional measures, acting in conformity
with paragraphs 1 to 4.
6. The parties to the dispute shall comply promptly with any
provisional measures prescribed under this article.
Article 291
Access
1. All the dispute settlement procedures specified in this Part
shall be open to States Parties.
2. The dispute settlement procedures specified in this Part shall
be open to entities other than States Parties only as specifically
provided for in this Convention.
Article 292
Prompt release of vessels and crews
1. Where the authorities of a State Party have detained a vessel
flying the flag of another State Party and it is alleged that the
detaining State has not complied with the provisions of this
Convention for the prompt release of the vessel or its crew upon
the posting of a reasonable bond or other financial security, the
question of release from detention may be submitted to any court
__
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I
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or tribunal agreed upon by the parties or, failing such agreement
within 10 days from the time of detention, to a court or tribunal
accepted by the detaining State under article 287 or to the
International Tribunal for the Law of the Sea, unless the parties
otherwise agree.
2. The application for release may be made only by or on behalf of
the flag State of the vessel.
3. The court or tribunal shall deal without delay with the
application for release and shall deal only with the question of
release, without prejudice to the merits of any case before the
appropriate domestic forum against the vessel, its owner or its
crew. The authorities of the detaining State remain competent to
release the vessel or its crew at any time.
4. Upon the posting of the bond or other financial security
determined by the court or tribunal, the authorities of the
detaining State shall comply promptly with the decision of the
court or tribunal concerning the release of the vessel or its
crew.
Article 293
Applicable law
1. A court or tribunal having jurisdiction under this section
shall apply this Convention and other rules of international law
not incompatible with this Convention.
2. Paragraph 1 does not prejudice the power of the court or
tribunal having jurisdiction under this section to decide a case
ex aequo et bono, if the parties so agree.
Article 294
Preliminary proceedings
1. A court or tribunal provided for in article 287 to which an
application is made in respect of a dispute referred to in article
297 shall determine at the request of a party, or may determine
proprio motu, whether the claim constitutes an abuse of legal
process or whether prima facie it is well founded. If the court or
tribunal determines that the claim constitutes an abuse of legal
process or is prima facie unfounded, it shall take no further
action in the case.
2. Upon receipt of the application, the court or tribunal shall
immediately notify the other party or parties of the application,
and shall fix a reasonable time-limit within which they may
request it to make a determination in accordance with paragraph 1.
3. Nothing in this article affects the right of any party to a
dispute to make preliminary objections in accordance with the
applicable rules of procedure.
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Article 295
Exhaustion of local remedies
Any dispute between States Parties concerning the interpretation
or application of this Convention may be submitted to the
procedures provided for in this section only after local remedies
have been exhausted where this is required by international law.
Article 296
Finality and binding force of decisions
1. Any decision rendered by a court or tribunal having
jurisdiction under this section shall be final and shall be
complied with by all the parties to the dispute.
2. Any such decision shall have no binding force except between
the parties and in respect of that particular dispute.
SECTION 3. LIMITATIONS AND EXCEPTIONS
TO APPLICABILITY OF SECTION 2
Article 297
Limitations on applicability of section 2
1. Disputes concerning the interpretation or application of this
Convention with regard to the exercise by a coastal State of its
sovereign rights or jurisdiction provided for in this Convention
shall be subject to the procedures provided for in section 2 in
the following cases:
(a) when it is alleged that a coastal State has acted in
contravention of the provisions of this Convention in
regard to the freedoms and rights of navigation,
overflight or the laying of submarine cables and
pipelines, or in regard to other internationally lawful
uses of the sea specified in article 58;
(b) when it is alleged that a State in exercising the
aforementioned freedoms, rights or uses has acted in
contravention of this Convention or of laws or
regulations adopted by the coastal State in conformity
with this Convention and other rules of international law
not incompatible with this Convention; or
(c) when it is alleged that a coastal State has acted in
contravention of specified international rules and
standards for the protection and preservation of the
marine environment which are applicable to the coastal
State and which have been established by this Convention
or through a competent international organization or
diplomatic conference in accordance with this Convention.
2. (a) Disputes concerning the interpretation or
application of the provisions of this Convention with
regard to marine scientific research shall be settled in
accordance with section 2, except that the coastal State
""'
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shall not be obliged to accept the submission to such
settlement of any dispute arising out of:
(i) the exercise by the coastal State of a right or
discretion in accordance with article 246; or
(ii) a decision by the coastal State to order
suspension or cessation of a research project in
accordance with article 253.
(b) A dispute arising from an allegation by the
researching State that with respect to a specific project
the coastal State is not exercising its rights under
articles 246 and 253 in a manner compatible with this
Convention shall be submitted, at the request of either
party, to conciliation under Annex V, section 2, provided
that the conciliation commission shall not call in
question the exercise by the coastal State of its
discretion to designate specific areas as referred to in
article 246, paragraph 6, or of its discretion to
withhold consent in accordance with article 246,
paragraph 5.
3. (a) Disputes concerning the interpretation or
application of the provisions of this Convention with
regard to fisheries shall be settled in accordance with
section 2, except that the coastal State shall not be
obliged to accept the submission to such settlement of
any dispute relating to its sovereign rights with respect
to the living resources in the exclusive economic zone or
their exercise, including its discretionary powers for
determining the allowable catch, its harvesting capacity,
the allocation of surpluses to other States and the terms
and conditions established in its conservation and
management laws and regulations.
(b) Where no settlement has been reached by recourse to
section 1 of this Part, a dispute shall be submitted to
conciliation under Annex V, section 2, at the request of
any party to the dispute, when it is alleged that:
(i) a coastal State has manifestly failed to comply
with its obligations to ensure through proper
conservation and management measures that the
maintenance of the living resources in the exclusive
economic zone is not seriously endangered;
(ii) a coastal State has arbitrarily refused to
determine, at the request of another State, the
allowable catch and its capacity to harvest living
resources with respect to stocks which that other
State is interested in fishing; or
(iii) a coastal State has arbitrarily refused to
allocate to any State, under articles 62, 69 and 70
and under the terms and conditions established by the
coastal State consistent with this Convention, the
whole or part of the surplus it has declared to exist.
(c) In no case shall the conciliation commission
substitute its discretion for that of the coastal State.
(d) The report of the conciliation commission shall be
communicated to the appropriate international
organizations.
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(e) In negotiating agreements pursuant to articles 69 and
70, States Parties, unless they otherwise agree, shall
include a clause on measures which they shall take in
order to minimize the possibility of a disagreement
concerning the interpretation or application of the
agreement, and on how they should proceed if a
disagreement nevertheless arises.
Article 298
Optional exceptions to applicability of section 2
1. When signing, ratifying or acceding to this Convention or at
any time thereafter, a State may, without prejudice to the
obligations arising under section 1, declare in writing that it
does not accept any one or more of the procedures provided for in
section 2 with respect to one or more of the following categories
of disputes:
(a) (i) disputes concerning the interpretation or
application of articles 15, 74 and 83 relating to sea
boundary delimitations, or those involving historic
bays or titles, provided that a State having made such
a declaration shall, when such a dispute arises
subsequent to the entry into force of this Convention
and where no agreement within a reasonable period of
time is reached in negotiations between the parties,
at the request of any party to the dispute, accept
submission of the matter to conciliation under Annex
V, section 2; and provided further that any dispute
that necessarily involves the concurrent consideration
of any unsettled dispute concerning sovereignty or
other rights over continental or insular land
territory shall be excluded from such submission;
(ii) after the conciliation commission has presented
its report, which shall state the reasons on which it
is based, the parties shall negotiate an agreement on
the basis of that report; if these negotiations do not
result in an agreement, the parties shall, by mutual
consent, submit the question to one of the procedures
provided for in section 2, unless the parties
otherwise agree;
(iii) this subparagraph does not apply to any sea
boundary dispute finally settled by an arrangement
between the parties, or to any such dispute which is
to be settled in accordance with a bilateral or
multilateral agreement binding upon those parties;
(b) disputes concerning military activities, including
military activities by government vessels and aircraft
engaged in non-commercial service, and disputes
concerning law enforcement activities in regard to the
exercise of sovereign rights or jurisdiction excluded
from the jurisdiction of a court or tribunal under
article 297, paragraph 2 or 3;
(c) disputes in respect of which the Security Council of
the United Nations is exercising the functions assigned
to it by the Charter of the United Nations, unless the
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Security Council decides to remove the matter from its
agenda or calls upon the parties to settle it by the
means provided for in this Convention.
2. A State Party which has made a declaration under paragraph 1
may at any time withdraw it, or agree to submit a dispute excluded
by such declaration to any procedure specified in this Convention.
3. A State Party which has made a declaration under paragraph 1
shall not be entitled to submit any dispute falling within the
excepted category of disputes to any procedure in this Convention
as against another State Party, without the consent of that party.
4. If one of the States Parties has made a declaration under
paragraph l(a), any other State Party may submit any dispute
falling within an excepted category against the declarant party to
the procedure specified in such declaration.
5. A new declaration, or the withdrawal of a declaration, does not
in any way affect proceedings pending before a court or tribunal
in accordance with this article, unless the parties otherwise
agree.
6. Declarations and notices of withdrawal of declarations under
this article shall be deposited with the Secretary-General of the
United Nations, who shall transmit copies thereof to the States
Parties.
Article 299
Right of the parties to agree upon a procedure
1. A dispute excluded under article 297 or excepted by a
declaration made under article 298 from the dispute settlement
procedures provided for in section 2 may be submitted to such
procedures only by agreement of the parties to the dispute.
2. Nothing in this section impairs the right of the parties to the
dispute to agree to some other procedure for the settlement of
such dispute or to reach an amicable settlement.
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Appendix B
United Nations Convention on the Law of the Sea - Part XV19 2
PART XVI
GENERAL PROVISIONS
Article300
Good faith and abuse of rights
States Parties shall fulfil in good faith the obligations assumed
under this Convention and shall exercise the rights, jurisdiction
and freedoms recognized in this Convention in a manner which would
not constitute an abuse of right.
Article301
Peaceful uses of the seas
In exercising their rights and performing their duties under this
Convention, States Parties shall refrain from any threat or use of
force against the territorial integrity or political independence
of any State, or in any other manner inconsistent with the
principles of international law embodied in the Charter of the
United Nations.
Article302
Disclosure of information
Without prejudice to the right of a State Party to resort
procedures for the settlement of disputes provided for in
Convention, nothing in this Convention shall be deemed to
a State Party, in the fulfilment of its obligations under
Convention, to supply information the disclosure of which
contrary to the essential interests of its security.
to the
this
require
this
is
Article303
Archaeological and historical objects found at sea
1. States have the duty to protect objects of an archaeological
and historical nature found at sea and shall cooperate for this
purpose.
2. In order to control traffic in such objects, the coastal State
may, in applying article 33, presume that their removal from the
seabed in the zone referred to in that article without its
92 Part XVI, United Nations Convention on the Law of the Sea, The
Law of
the Sea, United Nations, New York, 1983, p. 104-105.
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_
approval would result in an infringement within its territory or
territorial sea of the laws and regulations referred to in that
article.
3. Nothing in this article affects the rights of identifiable
owners, the law of salvage or other rules of admiralty, or laws
and practices with respect to cultural exchanges.
4. This article is without prejudice to other international
agreements and rules of international law regarding the protection
of objects of an archaeological and historical nature.
Article304
Responsibility and liability for damage
The provisions of this Convention regarding responsibility and
liability for damage are without prejudice to the application of
existing rules and the development of further rules regarding
responsibility and liability under international law.
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Appendix C
United Nations Convention on the Law of the Sea - Annex V 9 3
ANNEX V. CONCILIATION
SECTION 1. CONCILIATION PROCEDURE PURSUANT TO
SECTION 1 OF PART XV
Article 1
Institution of proceedings
If the parties to a dispute have agreed, in accordance with
article 284, to submit it to conciliation under this section, any
such party may institute the proceedings by written notification
addressed to the other party or parties to the dispute.
Article 2
List of conciliators
A list of conciliators shall be drawn up and maintained by the
Secretary-General of the United Nations. Every State Party shall
be entitled to nominate four conciliators, each of whom shall be a
person enjoying the highest reputation for fairness, competence
and integrity. The names of the persons so nominated shall
constitute the list. If at any time the conciliators nominated by
a State Party in the list so constituted shall be fewer than four,
that State Party shall be entitled to make further nominations as
necessary. The name of a conciliator shall remain on the list
until withdrawn by the State Party which made the nomination,
provided that such conciliator shall continue to serve on any
conciliation commission to which that
conciliator has been
appointed until the completion of the proceedings before that
commission.
Article 3
Constitution of conciliation commission
The conciliation commission shall, unless the parties otherwise
agree, be constituted as follows:
(a) Subject to subparagraph (g), the conciliation commission
shall consist of five members.
(b) The party instituting the proceedings shall appoint two
conciliators to be chosen preferably from the list referred
93 Annex V, United Nations Convention on the Law of the Sea, The Law of
the Sea, United Nations, New York, 1983, p. 137-140.
^,
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I
to in article 2 of this Annex, one of whom may be its
national,
unless
the
parties
otherwise
agree.
Such
appointments shall be included in the notification referred
to in article 1 of this Annex.
(c) The other party to the dispute shall appoint two
conciliators in the manner set forth in subparagraph (b)
within 21 days of receipt of the notification referred to in
article 1 of this Annex. If the appointments are not made
within that period, the party instituting the proceedings
may, within one week of the expiration of that period,
either terminate the proceedings by notification addressed
to the other party or request the Secretary-General of the
United Nations to make the appointments in accordance with
subparagraph (e).
(d) Within 30 days after all four conciliators have been
appointed, they shall appoint a fifth conciliator chosen
from the list referred to in article 2 of this Annex, who
shall be chairman. If the appointment is not made within
that period, either party may, within one week of the
expiration of that period, request the Secretary-General of
the United Nations to make the appointment in accordance
with subparagraph (e).
(e) Within 30 days of the receipt of a request under
subparagraph (c) or (d), the Secretary-General of the United
Nations shall make the necessary appointments from the list
referred to in article 2 of this Annex in consultation with
the parties to the dispute.
(f) Any vacancy shall be filled in the manner prescribed for
the initial appointment.
(g) Two or more parties which determine by agreement that
they are in the same interest shall appoint two conciliators
jointly. Where two or more parties have separate interests
or there is a disagreement as to whether they are of the
same interest, they shall appoint conciliators separately.
(h) In disputes involving more than two parties having
separate interests, or where there is disagreement as to
whether they are of the same interest, the parties shall
apply subparagraphs (a) to (f) in so far as possible.
Article 4
Procedure
The conciliation commission shall, unless the parties otherwise
agree, determine its own procedure. The commission may, with the
consent of the parties to the dispute, invite any State Party to
submit to it its views orally or in writing. Decisions of the
commission
regarding
procedural
matters,
the
report
and
recommendations shall be made by a majority vote of its members.
-
Article 5
Amicable settlement
The commission may draw the attention of the parties
measures which might facilitate an amicable settlement
dispute.
to
of
any
the
Article 6
Functions of the commission
The commission shall hear the parties, examine their claims and
objections, and make proposals to the parties with a view to
reaching an amicable settlement.
Article 7
Report
1. The
commission
shall report within
12
months
of its
constitution. Its report shall record any agreements reached and,
failing agreement, its conclusions on all questions of fact or law
relevant to the matter in dispute and such recommendations as the
commission may deem appropriate for an amicable settlement. The
report shall be deposited with the Secretary-General of the United
Nations and shall immediately be transmitted by him to the parties
to the dispute.
2. The report of the commission, including its conclusions or
recommendations, shall not be binding upon the parties.
Article 8
Termination
The conciliation proceedings are terminated when a settlement has
been reached, when the parties have accepted or one party has
rejected the recommendations of the report by written notification
addressed to the Secretary-General of the United Nations, or when
a period of three months has expired from the date of transmission
of the report to the parties.
Article 9
Fees and expenses
The fees and expenses of the
parties to the dispute.
commission shall be borne by
the
Article 10
Right of parties to modify procedure
The parties to the dispute may by agreement applicable solely to
that dispute modify any provision of this Annex.
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100
SECTION 2. COMPULSORY SUBMISSION TO
CONCILIATION PROCEDURE PURSUANT TO
SECTION 3 OF PART XV
Article 11
Institution of proceedings
1. Any party to a dispute which, in accordance with Part XV,
section 3, may be submitted to conciliation under this section,
may institute the proceedings by written notification addressed to
the other party or parties to the dispute.
2. Any party to the dispute, notified under paragraph 1, shall be
obliged to submit to such proceedings.
Article 12
Failure to reply or to submit to conciliation
The failure of a party or parties to the dispute to reply to
notification of institution of proceedings or to submit to such
proceedings shall not constitute a bar to the proceedings.
Article 13
Competence
A disagreement as to whether a conciliation commission acting
under this section has competence shall be decided by the
commission.
Article 14
Application of section 1
Articles 2 to 10 of section 1 of this Annex apply subject to this
section.
L
101
Appendix D
United Nations Convention on the Law of the Sea - Annex V1 9 4
ANNEX VI. STATUTE OF THE INTERNATIONAL TRIBUNAL
FOR THE LAW OF THE SEA
Article 1
General provisions
1. The International Tribunal
for the Law of the Sea is
constituted and shall function in accordance with the provisions
of this Convention and this Statute.
2. The seat of the Tribunal shall be in the Free and Hanseatic
City of Hamburg in the Federal Republic of Germany.
3. The Tribunal may sit and exercise its functions elsewhere
whenever it considers this desirable.
4. A reference of a dispute to the Tribunal shall be governed by
the provisions of Parts XI and XV.
SECTION 1. ORGANIZATION OF THE TRIBUNAL
Article 2
Composition
1. The Tribunal shall be composed of a body of 21 independent
members,
elected
from among persons
enjoying
the
highest
reputation for fairness and integrity and of recognized competence
in the field of the law of the sea.
2. In the Tribunal as a whole the representation of the principal
legal systems of the world and equitable geographical distribution
shall be assured.
Article 3
Membership
1. No two members of the Tribunal may be nationals of the same
State. A person who for the purposes of membership in the Tribunal
could be regarded as a national of more than one State shall be
deemed to be a national of the one in which he ordinarily
exercises civil and political rights.
94 Annex VI, United Nations Convention on the Law of the Sea, The Law of
the Sea, United Nations, New York, 1983, p. 140-149.
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102
2. There shall be no fewer than three members from each
geographical group as established by the General Assembly of the
United Nations.
Article 4
Nominations and elections
1. Each State Party may nominate not more than two persons having
the qualifications prescribed in article 2 of this Annex. The
members of the Tribunal shall be elected from the list of persons
thus nominated.
2. At least three months before the date of the election, the
Secretary-General of the United Nations in the case of the first
election and the Registrar of the Tribunal in the case of
subsequent elections shall address a written invitation to the
States Parties to submit their nominations for members of the
Tribunal within two months. He
shall prepare a
list
in
alphabetical order of all the persons thus nominated, with an
indication of the States Parties which have nominated them, and
shall submit it to the States Parties before the seventh day of
the last month before the date of each election.
3. The first election shall be held within six months of the date
of entry into force of this Convention.
4. The members of the Tribunal shall be elected by secret ballot.
Elections shall be held at a meeting of the States Parties
convened by the Secretary-General of the United Nations in the
case of the first election and by a procedure agreed to by the
States Parties in the case of subsequent elections. Two thirds of
the States Parties shall constitute a quorum at that meeting. The
persons elected to the Tribunal shall be those nominees who obtain
the largest number of votes and a two-thirds majority of the
States Parties present and voting, provided that such majority
includes a majority of the States Parties.
Article 5
Term of office
1. The members of the Tribunal shall be elected for nine years and
may be re-elected; provided, however, that of the members elected
at the first election, the terms of seven members shall expire at
the end of three years and the terms of seven more members shall
expire at the end of six years.
2. The members of the Tribunal whose terms are to expire at the
end of the above-mentioned initial periods of three and six years
shall be chosen by lot to be drawn by the Secretary-General of the
United Nations immediately after the first election.
3. The members of the Tribunal shall continue to discharge their
duties until their places have been filled. Though replaced, they
shall finish any proceedings which they may have begun before the
date of their replacement.
4. In the case of the resignation of a member of the Tribunal, the
letter of resignation shall be addressed to the President of the
Tribunal. The place becomes vacant on the receipt of that letter.
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Article 6
Vacancies
1. Vacancies shall be filled by the same method as that laid down
for the first election, subject to the following provision: the
Registrar shall, within one month of the occurrence of the
vacancy, proceed to issue the invitations provided for in article
4 of this Annex, and the date of the election shall be fixed by
the President of the Tribunal after consultation with the States
Parties.
2. A member of the Tribunal elected to replace a member whose term
of office has not expired shall hold office for the remainder of
his predecessor's term.
Article 7
Incompatible activities
1. No member of the Tribunal may exercise any political or
administrative function,
or
associate actively with or be
financially interested in any of the operations of any enterprise
concerned with the exploration for or exploitation of the
resources of the sea or the seabed or other commercial use of the
sea or the seabed.
2. No member of the Tribunal may act as agent, counsel or advocate
in any case.
3. Any doubt on these points shall be resolved by decision of the
majority of the other members of the Tribunal present.
Article 8
Conditions relating to participation of members in a particular
case
1. No member of the Tribunal may participate in the decision of
any case in which he has previously taken part as agent, counsel
or advocate for one of the parties, or as a member of a national
or international court or tribunal, or in any other capacity.
2. If, for some special reason, a member of the Tribunal considers
that he should not take part in the decision of a particular case,
he shall so inform the President of the Tribunal.
3. If the President considers that for some special reason one of
the members of the Tribunal should not sit in a particular case,
he shall give him notice accordingly.
4. Any doubt on these points shall be resolved by decision of the
majority of the other members of the Tribunal present.
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Article 9
Consequence of ceasing to fulfil required conditions
If, in the unanimous opinion of the other members of the Tribunal,
a member has ceased to fulfil the required conditions, the
President of the Tribunal shall declare the seat vacant.
Article 10
Privileges and immunities
The members of the Tribunal, when engaged on the business of the
Tribunal, shall enjoy diplomatic privileges and immunities.
Article 11
Solemn declaration by members
Every member of the Tribunal shall, before taking up his duties,
make a solemn declaration in open session that he will exercise
his powers impartially and conscientiously.
Article 12
President, Vice-President and Registrar
1. The Tribunal shall elect its President and Vice-President for
three years; they may be re-elected.
2. The Tribunal shall appoint its Registrar and may provide for
the appointment of such other officers as may be necessary.
3. The President and the Registrar shall reside at the seat of the
Tribunal.
Article 13
Quorum
1. All available members of the Tribunal shall sit; a quorum of 11
elected members shall be required to constitute the Tribunal.
2. Subject to article 17 of this Annex, the Tribunal shall
determine which members are available to constitute the Tribunal
for the consideration of a particular dispute, having regard to
the effective functioning of the chambers as provided for in
articles 14 and 15 of this Annex.
3. All disputes and applications submitted to the Tribunal shall
be heard and determined by the Tribunal, unless article 14 of this
Annex applies, or the parties request that it shall be dealt with
in accordance with article 15 of this Annex.
Article 14
Seabed Disputes Chamber
A Seabed Disputes Chamber shall be established in accordance with
the provisions of section 4 of this Annex. Its jurisdiction,
WIN
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powers and functions shall be as provided for in Part XI, section
5.
Article 15
Special chambers
1. The Tribunal may form such chambers, composed of three or more
of its elected members, as it considers necessary for dealing with
particular categories of disputes.
2. The Tribunal shall form a chamber for dealing with a particular
dispute submitted to it if the parties so request. The composition
of such a chamber shall be determined by the Tribunal with the
approval of the parties.
3. With a view to the speedy dispatch of business, the Tribunal
shall form annually a chamber composed of five of its elected
members
which may hear and determine disputes
by summary
procedure. Two alternative members shall be selected for the
purpose of replacing members who are unable to participate in a
particular proceeding.
4. Disputes shall be heard and determined by the chambers provided
for in this article if the parties so request.
5. A judgment given by any of the chambers provided for in this
article and in article 14 of this Annex shall be considered as
rendered by the Tribunal.
Article 16
Rules of the Tribunal
The Tribunal shall frame rules for carrying out its functions. In
particular it shall lay down rules of procedure.
Article 17
Nationality of members
1. Members of the Tribunal of the nationality of any of the
parties to a dispute shall retain their right to participate as
members of the Tribunal.
2. If the Tribunal, when hearing a dispute, includes upon the
bench a member of the nationality of one of the parties, any other
party may choose a person to participate as a member of the
Tribunal.
3. If the Tribunal, when hearing a dispute, does not include upon
the bench a member of the nationality of the parties, each of
those parties may choose a person to participate as a member of
the Tribunal.
4. This article applies to the chambers referred to in articles 14
and 15 of this Annex. In such cases,
the President, in
consultation with the parties, shall request specified members of
the Tribunal forming the chamber, as many as necessary, to give
place to the members of the Tribunal of the nationality of the
parties concerned, and, failing such, or if they are unable to be
present, to the members specially chosen by the parties.
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5. Should there be several parties in the same interest, they
shall, for the purpose of the preceding provisions, be considered
as one party only. Any doubt on this point shall be settled by the
decision of the Tribunal.
6. Members chosen in accordance with paragraphs 2, 3 and 4 shall
fulfil the conditions required by articles 2, 8 and 11 of this
Annex. They shall participate in the decision on terms of complete
equality with their colleagues.
Article 18
Remuneration of members
1. Each elected member of the Tribunal shall receive an annual
allowance and, for each day on which he exercises his functions, a
special allowance, provided that in any year the total sum payable
to any member as special allowance shall not exceed the amount of
the annual allowance.
2. The President shall receive a special annual allowance.
3. The Vice-President shall receive a special allowance for each
day on which he acts as President.
4. The members chosen under article 17 of this Annex, other than
elected members of the Tribunal, shall receive compensation for
each day on which they exercise their functions.
5. The salaries, allowances and compensation shall be determined
from time to time at meetings of the States Parties, taking into
account the workload of the Tribunal. They may not be decreased
during the term of office.
6. The salary of the Registrar shall be determined at meetings of
the States Parties, on the proposal of the Tribunal.
7. Regulations adopted at meetings of the States Parties shall
determine the conditions under which retirement pensions may be
given to members of the Tribunal and to the Registrar, and the
conditions under which members of the Tribunal and Registrar shall
have their travelling expenses refunded.
8. The salaries, allowances, and compensation shall be free of all
taxation.
Article 19
Expenses of the Tribunal
1. The expenses of the Tribunal shall be borne by the States
Parties and by the Authority on such terms and in such a manner as
shall be decided at meetings of the States Parties.
2. When an entity other than a State Party or the Authority is a
party to a case submitted to it, the Tribunal shall fix the amount
which that party is to contribute towards the expenses of the
Tribunal.
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SECTION 2. COMPETENCE
Article 20
Access to the Tribunal
1. The Tribunal shall be open to States Parties.
2. The Tribunal shall be open to entities other than States
Parties in any case expressly provided for in Part XI or in any
case submitted pursuant to any other agreement
conferring
jurisdiction on the Tribunal which is accepted by all the parties
to that case.
Article 21
Jurisdiction
The jurisdiction of the Tribunal comprises all disputes and all
applications submitted to it in accordance with this Convention
and all matters specifically provided for in any other agreement
which confers jurisdiction on the Tribunal.
Article 22
Reference of disputes subject to other agreements
If all the parties to a treaty or convention already in force and
concerning the subject-matter covered by this Convention so agree,
any disputes concerning the interpretation or application of such
treaty or convention may, in accordance with such agreement, be
submitted to the Tribunal.
Article 23
Applicable law
The Tribunal shall decide
accordance with article 293.
all
disputes
and
applications
in
SECTION 3. PROCEDURE
Article 24
Institution of proceedings
1. Disputes are submitted to the Tribunal, as the case may be,
either by notification of a special agreement or by written
application, addressed to the Registrar. In either case, the
subject of the dispute and the parties shall be indicated.
2. The Registrar shall forthwith notify the special agreement or
the application to all concerned.
3. The Registrar shall also notify all States Parties.
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Article 25
Provisional measures
1. In accordance with article 290, the Tribunal and its Seabed
Disputes Chamber shall have the power to prescribe provisional
measures.
2. If the Tribunal is not in session or a sufficient number of
members is not available to constitute a quorum, the provisional
measures shall be prescribed by the chamber of summary procedure
formed
under
article
15,
paragraph
3,
of
this
Annex.
Notwithstanding article 15, paragraph 4, of this Annex, such
provisional measures may be adopted at the request of any party to
the dispute. They shall be subject to review and revision by the
Tribunal.
Article 26
Hearing
1. The hearing shall be under the control of the President or, if
he is unable to preside, of the Vice-President. If neither is able
to preside, the senior judge present of the Tribunal shall
preside.
2. The hearing shall be public, unless the Tribunal decides
otherwise or unless the parties demand that the public be not
admitted.
Article 27
Conduct of case
The Tribunal shall make orders for the conduct of the case, decide
the form and time in which each party must conclude its arguments,
and make all arrangements connected with the taking of evidence.
Article 28
Default
When one of the parties does not appear before the Tribunal or
fails to defend its case, the other party may request the Tribunal
to continue the proceedings and make its decision. Absence of a
party or failure of a party to defend its case shall not
constitute a bar to the proceedings. Before making its decision,
the Tribunal must satisfy itself not only that it has jurisdiction
over the dispute, but also that the claim is well founded in fact
and law.
Article 29
Majority for decision
1. All questions shall be decided by a majority of the members of
the Tribunal who are present.
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2. In the event of an equality of votes, the President or the
member of the Tribunal who acts in his place shall have a casting
vote.
Article 30
Judgment
1. The judgment shall state the reasons on which it is based.
2. It shall contain the names of the members of the Tribunal who
have taken part in the decision.
3. If the judgment does not represent in whole or in part the
unanimous opinion of the members of the Tribunal, any member shall
be entitled to deliver a separate opinion.
4. The judgment shall be signed by the President and by the
Registrar. It shall be read in open court, due notice having been
given to the parties to the dispute.
Article 31
Request to intervene
1. Should a State Party consider that it has an interest of a
legal nature which may be affected by the decision in any dispute,
it may submit a request to the Tribunal to be permitted to
intervene.
2. It shall be for the Tribunal to decide upon this request.
3. If a request to intervene is granted, the decision of the
Tribunal in respect of the dispute shall be binding upon the
intervening State Party in so far as it relates to matters in
respect of which that State Party intervened.
Article 32
Right to intervene in cases of interpretation or application
1. Whenever the interpretation or application of this Convention
is in question, the Registrar shall notify all States Parties
forthwith.
2. Whenever pursuant to article 21 or 22 of this Annex the
interpretation or application of an international agreement is in
question, the Registrar shall notify all the parties to the
agreement.
3. Every party referred to in paragraphs 1 and 2 has the right to
intervene in the proceedings;
if it uses this right, the
interpretation given by the judgment will be equally binding upon
it.
Article 33
Finality and binding force of decisions
1. The decision of the Tribunal is final and shall be complied
with by all the parties to the dispute.
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2. The decision shall have no binding force except between the
parties in respect of that particular dispute.
3. In the event of dispute as to the meaning or scope of the
decision, the Tribunal shall construe it upon the request of any
party.
Article 34
Costs
Unless otherwise decided by the Tribunal, each party shall bear
its own costs.
SECTION 4. SEABED DISPUTES CHAMBER
Article 35
Composition
1. The Seabed Disputes Chamber referred to in article 14 of this
Annex shall be composed of 11 members, selected by a majority of
the elected members of the Tribunal from among them.
2. In the
selection of
the members of the Chamber, the
representation of the principal legal systems of the world and
equitable geographical distribution shall be assured. The Assembly
of the Authority may adopt recommendations of a general nature
relating to such representation and distribution.
3. The members of the Chamber shall be selected every three years
and may be selected for a second term.
4. The Chamber shall elect its President from among its members,
who shall serve for the term for which the Chamber has been
selected.
5. If any proceedings are still pending at the end of any threeyear period for which the Chamber has been selected, the Chamber
shall complete the proceedings in its original composition.
6. If a vacancy occurs in the Chamber, the Tribunal shall select a
successor from among its elected members, who shall hold office
for the remainder of his predecessor's term.
7. A quorum of seven of the members selected by the Tribunal shall
be required to constitute the Chamber.
Article 36
Ad hoc chambers
1. The Seabed Disputes Chamber shall form an ad hoc chamber,
composed of three of its members, for dealing with a particular
dispute submitted to it in accordance with article 188, paragraph
l(b). The composition of such a chamber shall be determined by the
Seabed Disputes Chamber with the approval of the parties.
2. If the parties do not agree on the composition of an ad hoc
chamber, each party to the dispute shall appoint one member, and
the third member shall be appointed by them in agreement. If they
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disagree, or if
President of the
appointment
or
consultation with
3. Members of the
nationals of, any
any party fails to make an appointment, the
Seabed Disputes Chamber shall promptly make the
appointments
from among its members,
after
the parties.
ad hoc chamber must not be in the service of, or
of the parties to the dispute.
Article 37
Access
The Chamber shall be open to the States Parties, the Authority and
the other entities referred to in Part XI, section 5.
Article 38
Applicable law
In addition to the provisions of article 293, the Chamber shall
apply:
(a) the rules, regulations and procedures of the Authority
adopted in accordance with this Convention; and
(b) the terms of contracts concerning activities in the Area
in matters relating to those contracts.
Article 39
Enforcement of decisions of the Chamber
The decisions of the Chamber shall be enforceable in the
territories of the States Parties in the same manner as judgments
or orders of the highest court of the State Party in whose
territory the enforcement is sought.
Article 40
Applicability of other sections of this Annex
1. The other sections of this Annex which are not incompatible
with this section apply to the Chamber.
2. In the exercise of its functions relating to advisory opinions,
the Chamber shall be guided by the provisions of this Annex
relating to procedure before the Tribunal to the extent to which
it recognizes them to be applicable.
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SECTION 5. AMENDMENTS
Article 41
Amendments
1. Amendments to this Annex, other than amendments to section 4,
may be adopted only in accordance with article 313 or by consensus
at a conference convened in accordance with this Convention.
2. Amendments to section 4 may be adopted only in accordance with
article 314.
3. The Tribunal may propose such amendments to this Statute as it
may consider necessary, by written communications to the States
Parties for their consideration in conformity with paragraphs 1
and 2.
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Appendix E
United Nations Convention on the Law of the Sea - Annex VII
95
ANNEX VII. ARBITRATION
Article 1
Institution of proceedings
Subject to the provisions of Part XV, any party to a dispute may
submit the dispute to the arbitral procedure provided for in this
Annex by written notification addressed to the other party or
parties to the dispute. The notification shall be accompanied by a
statement of the claim and the grounds on which it is based.
Article 2
List of arbitrators
1. A list of arbitrators shall be drawn up and maintained by the
Secretary-General of the United Nations. Every State Party shall
be entitled to nominate four arbitrators, each of whom shall be a
person experienced in maritime affairs and enjoying the highest
reputation for fairness, competence and integrity. The names of
the persons so nominated shall constitute the list.
2. If at any time the arbitrators nominated by a State Party in
the list so constituted shall be fewer than four, that State Party
shall be entitled to make further nominations as necessary.
3. The name of an arbitrator shall remain on the list until
withdrawn by the State Party which made the nomination, provided
that such arbitrator shall continue to serve on any arbitral
tribunal to which that arbitrator has been appointed until the
completion of the proceedings before that arbitral tribunal.
Article 3
Constitution of arbitral tribunal
For the purpose of proceedings under this Annex, the arbitral
tribunal shall, unless the parties otherwise agree, be constituted
as follows:
(a) Subject to subparagraph (g), the arbitral tribunal shall
consist of five members.
(b) The party instituting the proceedings shall appoint one
member to be chosen preferably from the list referred to in
article 2 of this Annex, who may be its national. The
95 Annex VII, United Nations Convention on the Law of the Sea, The Law
of the Sea, United Nations, New York, 1983, p. 149-152.
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appointment shall be included in the notification referred
to in article 1 of this Annex.
(c) The other party to the dispute shall, within 30 days of
receipt of the notification referred to in article 1 of this
Annex, appoint one member to be chosen preferably from the
list, who may be its national. If the appointment is not
the
instituting
party
the
period,
that
made within
proceedings may, within two weeks of the expiration of that
period, request that the appointment be made in accordance
with subparagraph (e).
(d) The other three members shall be appointed by agreement
between the parties. They shall be chosen preferably from
the list and shall be nationals of third States unless the
parties otherwise agree. The parties to the dispute shall
appoint the President of the arbitral tribunal from among
those three members. If, within 60 days of receipt of the
notification referred to in article 1 of this Annex, the
parties are unable to reach agreement on the appointment of
one or more of the members of the tribunal to be appointed
by agreement, or on the appointment of the President, the
remaining appointment or appointments shall be made in
accordance with subparagraph (e), at the request of a party
to the dispute. Such request shall be made within two weeks
of the expiration of the aforementioned 60-day period.
(e) Unless the parties agree that any appointment under
subparagraphs (c) and (d) be made by a person or a third
the
of
the
President
the parties,
chosen by
State
International Tribunal for the Law of the Sea shall make the
necessary appointments. If the President is unable to act
under this subparagraph or is a national of one of the
parties to the dispute, the appointment shall be made by the
next senior member of the International Tribunal for the Law
of the Sea who is available and is not a national of one of
in
this
to
referred
appointments
The
parties.
the
subparagraph shall be made from the list referred to in
article 2 of this Annex within a period of 30 days of the
receipt of the request and in consultation with the parties.
The members so appointed shall be of different nationalities
and may not be in the service of, ordinarily resident in the
territory of, or nationals of, any of the parties to the
dispute.
(f) Any vacancy shall be filled in the manner prescribed for
the initial appointment.
(g) Parties in the same interest shall appoint one member of
the tribunal jointly by agreement. Where there are several
is
interests or where there
parties having separate
disagreement as to whether they are of the same interest,
each of them shall appoint one member of the tribunal. The
number of members of the tribunal appointed separately by
the parties shall always be smaller by one than the number
of members of the tribunal to be appointed jointly by the
parties.
(h) In disputes involving more than two parties, the
provisions of subparagraphs (a) to (f) shall apply to the
maximum extent possible.
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Article 4
Functions of arbitral tribunal
An arbitral tribunal constituted under article 3 of this Annex
shall function in accordance with this Annex and the other
provisions of this Convention.
Article 5
Procedure
Unless the parties to the dispute otherwise agree, the arbitral
tribunal shall determine its own procedure, assuring to each party
a full opportunity to be heard and to present its case.
Article 6
Duties of parties to a dispute
The parties to the dispute shall facilitate the work of the
arbitral tribunal and, in particular, in accordance with their law
and using all means at their disposal, shall:
(a) provide it with all relevant documents, facilities and
information; and
(b) enable it when necessary to call witnesses or experts
and receive their evidence and to visit the localities to
which the case relates.
Article 7
Expenses
Unless the arbitral tribunal decides otherwise because of the
particular circumstances of the case, the expenses of the
tribunal, including the remuneration of its members, shall be
borne by the parties to the dispute in equal shares.
Article 8
Required majority for decisions
Decisions of the arbitral tribunal shall be taken by a majority
vote of its members. The absence or abstention of less than half
of the members shall not constitute a bar to the tribunal reaching
a decision. In the event of an equality of votes, the President
shall have a casting vote.
Article 9
Default of appearance
If one of the parties to the dispute does not appear before the
arbitral tribunal or fails to defend its case, the other party may
request the tribunal to continue the proceedings and to make its
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award. Absence of a party or failure of a party to defend its case
shall not constitute a bar to the proceedings. Before making its
award, the arbitral tribunal must satisfy itself not only that it
has jurisdiction over the dispute but also that the claim is well
founded in fact and law.
Article 10
Award
The award of the arbitral tribunal shall be confined to the
subject-matter of the dispute and state the reasons on which it is
based. It shall contain the names of the members who have
participated and the date of the award. Any member of the tribunal
may attach a separate or dissenting opinion to the award.
Article 11
Finality of award
The award shall be final and without appeal, unless the parties to
the dispute have agreed in advance to an appellate procedure. It
shall be complied with by the parties to the dispute.
Article 12
Interpretation or implementation of award
1. Any controversy which may arise between the parties to the
dispute as regards the interpretation or manner of implementation
of the award may be submitted by either party for decision to the
arbitral tribunal which made the award. For this purpose, any
vacancy in the tribunal shall be filled in the manner provided for
in the original appointments of the members of the tribunal.
2. Any such controversy may be submitted to another court or
tribunal under article 287 by agreement of all the parties to the
dispute.
Article 13
Application to entities other than States Parties
The provisions of this Annex shall apply mutatis mutandis to any
dispute involving entities other than States Parties.
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Appendix F
United Nations Convention on the Law of the Sea - Annex VIII
96
ANNEX VIII. SPECIAL ARBITRATION
Article 1
Institution of proceedings
Subject to Part XV, any party to a dispute concerning the
interpretation or application of the articles of this Convention
relating to (1) fisheries, (2) protection and preservation of the
marine environment,
(3) marine scientific research, or
(4)
navigation, including pollution from vessels and by dumping, may
submit the dispute to the special arbitral procedure provided for
in this Annex by written notification addressed to the other party
or parties to the dispute. The notification shall be accompanied
by a statement of the claim and the grounds on which it is based.
Article 2
Lists of experts
1. A list of experts shall be established and maintained in
respect of each of the fields of (1) fisheries, (2) protection and
preservation of the marine environment, (3) marine scientific
research, and (4) navigation, including pollution from vessels and
by dumping.
2. The lists of experts shall be drawn up and maintained, in the
field of fisheries by the Food and Agriculture Organization of the
United Nations, in the field of protection and preservation of the
marine environment by the United Nations Environment Programme, in
the field of marine scientific research by the Intergovernmental
Oceanographic Commission, in the field of navigation, including
pollution from vessels and by dumping, by the International
Maritime Organization, or in each case by the appropriate
subsidiary body concerned to which such organization, programme or
commission has delegated this function.
3. Every State Party shall be entitled to nominate two experts in
each field whose competence in the legal, scientific or technical
aspects of such field is established and generally recognized and
who enjoy the highest reputation for fairness and integrity. The
names of the persons so nominated in each field shall constitute
the appropriate list.
4. If at any time the experts nominated by a State Party in the
list so constituted shall be fewer than two, that State Party
shall be entitled to make further nominations as necessary.
96 Annex VIII, United Nations Convention on the Law of the Sea, The Law
of the Sea, United Nations, New York, 1983, p. 152-154.
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5. The name of an expert shall remain on the list until withdrawn
by the State Party which made the nomination, provided that such
expert shall continue to serve on any special arbitral tribunal to
which that expert has been appointed until the completion of the
proceedings before that special arbitral tribunal.
Article 3
Constitution of special arbitral tribunal
For the purpose of proceedings under this Annex, the special
arbitral tribunal shall, unless the parties otherwise agree, be
constituted as follows:
(a) Subject to subparagraph (g),
the special arbitral
tribunal shall consist of five members.
(b) The party instituting the proceedings shall appoint two
members to be chosen preferably from the appropriate list or
lists referred to in article 2 of this Annex relating to the
matters in dispute, one of whom may be its national. The
appointments shall be included in the notification referred
to in article 1 of this Annex.
(c) The other party to the dispute shall, within 30 days of
receipt of the notification referred to in article 1 of this
Annex, appoint two members to be chosen preferably from the
appropriate list or lists relating to the matters in
dispute, one
of
whom may be its
national.
If
the
appointments are not made within that period, the party
instituting the proceedings may, within two weeks of the
expiration of that period, request that the appointments be
made in accordance with subparagraph (e).
(d) The parties to the dispute shall by agreement appoint
the President of the special arbitral tribunal, chosen
preferably from the appropriate list, who shall be a
national of a third State, unless the parties otherwise
agree. If, within 30 days of receipt of the notification
referred to in article 1 of this Annex, the parties are
unable to reach agreement on the appointment of the
President, the appointment shall be made in accordance with
subparagraph (e), at the request of a party to the dispute.
Such request shall be made within two weeks of the
expiration of the aforementioned 30-day period.
(e) Unless the parties agree that the appointment be made by
a person or a third State chosen by the parties, the
Secretary-General of the United Nations shall make the
necessary appointments within 30 days of receipt of a
request under subparagraphs (c) and (d). The appointments
referred to in this subparagraph shall be made from the
appropriate list or lists of experts referred to in article
2 of this Annex and in consultation with the parties to the
dispute and the appropriate international organization. The
members so appointed shall be of different nationalities and
may not be in the service of, ordinarily resident in the
territory of, or nationals of, any of the parties to the
dispute.
(f) Any vacancy shall be filled in the manner prescribed for
the initial appointment.
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(g) Parties in the same interest shall appoint two members
of the tribunal jointly by agreement. Where there are
several parties having separate interests or where there is
disagreement as to whether they are of the same interest,
each of them shall appoint one member of the tribunal.
(h) In disputes involving more than two parties, the
provisions of subparagraphs (a) to (f) shall apply to the
maximum extent possible.
Article 4
General provisions
Annex VII, articles 4 to 13, apply mutatis mutandis to the special
arbitration proceedings in accordance with this Annex.
Article 5
Fact finding
1. The parties to a dispute concerning the interpretation or
application of the provisions of this Convention relating to (1)
fisheries,
(2) protection
and preservation
of
the
marine
environment, (3) marine scientific research, or (4) navigation,
including pollution from vessels and by dumping, may at any time
agree to request a special arbitral tribunal constituted in
accordance with article 3 of this Annex to carry out an inquiry
and establish the facts giving rise to the dispute.
2. Unless the parties otherwise agree, the findings of fact of the
special arbitral tribunal acting in accordance with paragraph 1,
shall be considered as conclusive as between the parties.
3. If all the parties to the dispute so request, the special
arbitral tribunal may formulate recommendations which, without
having the force of a decision, shall only constitute the basis
for a review by the parties of the questions giving rise to the
dispute.
4. Subject to paragraph 2, the special arbitral tribunal shall act
in accordance with the provisions of this Annex, unless the
parties otherwise agree.