over which nations can and should exercise sovereignty through the effects doctrine. Second, the international community could determine that cyberspace is an information commons over which no state may claim jurisdiction.68 The former interpretation provides a firm legal grounding on which an international regime could be built. The latter understanding is inimical to the concept of the commons itself, but a compromise position may be found by examining the common heritage of mankind principle.
Option 1: Regulating Cyberspace through the Effects Principle
The general principle of sovereignty is fundamental to international law and relations, but not as directly to information technology.69 As a practical matter though, concerns over sovereignty should not forestall international action on cyber attacks. It is well-established in international law that the effects principle permits the regulation of activities that impact upon a state’s territory. This principle is defined in the American Restatement (Third) of Foreign Relations Law in that “[i]nternational law recognizes that a nation has the ability to provide for rules of law with respect to conduct outside its territory that has or is intended to have substantial effect within its territory.”70
68 See e.g., James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 Law & Contemp. Probs. 33 (2003); Lawrence Lessig, The Architecture of Innovation, 51 Duke L.J. 1783 (2002); Eben Moglen, Freeing the Mind: Free Software and the Death of Proprietary Culture, 56 Me. L. Rev. 1 (2004).
69 Since Aristotelian antiquity, the term “sovereignty” has denoted a multitude of meanings dependent upon context, one’s perspective and objectives. W. Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 No. 4 AJIL 866 (Oct. 1990). First codified with the 1648 Treaty of Westphalia that ended the Thirty Years War, sovereignty became vested in the absolute monarch whose authority rested on divine mandate and history, but not the will of the people. S. Korff, The Problem of Sovereignty, 17 No. 3 The Am. Pol. Science Rev. 404 (Aug., 1923). The 128 clauses of Westphalia that gave birth to this concept include, among much else, the principle of the sovereign states’ monopoly on coercive force as well as the principles of nonintervention in internal affairs, consent as the basis of obligation to comply with international laws, and diplomatic immunity. Id. Taken together, these nascent international law provisions gave birth to the modern notion of territoriality. As the decades multiplied into centuries, sovereignty transitioned from an absolute right of monarchs to the supreme authority of states, eventually becoming established as “Westphalian sovereignty” that has to a large part since defined international relations. J. Jackson, Sovereignty-Modern: A New Approach to an Outdated Concept, 97 No.4 AJIL 782, 785 (Oct., 2003).
70 See 35 Sec. 301(9) cf. with Restatement, supra note 16, para. 402(1)(c).