71 In the international commons, all of humanity is the sovereign under the Common Heritage of Mankind (“CHM”) principle.72 To the extent that cyberspace is a commons, though, it is one facing unique challenges and thus requiring exceptional regulatory solutions.73
Option 2: Regulating the Information Commons through the Common Heritage of Mankind
From the Greek cyber, meaning “governor”, ‘cyberspace’ “couples the idea of communication and control with space, a domain previously unknown and unoccupied, where “territory” can be claimed, controlled, and exploited.”74 However, unlike the
71 Although criticized, Westphalian territorial sovereignty remains central to both international relations and law, and as such it has a role to play in finding international solutions to cyber attacks. The state’s power is linked to the people and resources found within a set of boundaries, though not necessarily geographic ones. As U.S. Ambassador Richard Haass has said, “At the beginning of the twenty-first century, sovereignty remains an essential foundation for peace, democracy, and prosperity.” J. Jackson, Sovereignty-Modern: A New Approach to an Outdated Concept, 97 No.4 AJIL 782, 789 (Oct., 2003). From kings to citizens, to nations, the Communist Party, dictators, juntas, and theocracies, all have claimed to enjoy the benefit of sovereignty. The modern polity is known as the state, and the fundamental characteristic of authority within it is still sovereignty. Id. at 780.
72 Although no universally agreed upon definition of the CHM principle has been reached by legal scholars or policymakers, a working definition would likely comprise five elements. First, there can be no private or public appropriation; no one legally owns common heritage spaces. J. Frakes, Notes and Comments: The Common Heritage of Mankind Principle and the Deep Seabed, Outer Space, and Antarctica, 21 Wis. Int’l L.J. 409, 410 (2003). Second, representatives from all nations must manage resources since a commons area is considered to belong to everyone. The role of governments then is relegated to being a representative of the people. As popular management is practically unfeasible, a special agency to coordinate shared management must administer commons spaces in the name of all mankind. Id at 410. Third, all nations must actively share with each other the benefits acquired from exploitation of the resources from the commons heritage region. Private entities seeking profits would have to perform a service that benefited all of mankind. Equitable distribution is intrinsic to the principle, but the application is ambiguous necessitating a balance between economic benefit-sharing and environmental protection. Fourth, there can be no weaponry or military installations established in commons areas. Armed conflict is unlawful since every nation has a stake in maintaining the peace. Finally, the commons should be preserved for the benefit of future generations, and to avoid a “Tragedy of the Commons” scenario. G. Hardin, The Tragedy of the Commons, 162 Science 1243-1248 (1968).
73 Anupam Chander & Madhavi Sunder, The Romance of the Public Domain, 92 Calif. L. Rev. 1331 (2004) (“With the rise of the Information Age, the flashpoint debates about property have moved from land to information. The public domain is now the cause célèbre among progressive intellectual property and cyberlaw scholars, who extol the public domain as necessary for sustaining innovation…This is the romance of the commons - the belief that because a resource is open to all by force of law, it will indeed be equally exploited by all.”)
74 Stephen J. Lukasik, Protecting the global information commons, 24(6) Telecommunications Policy 519-31 (2000) (arguing that if internet-based information infrastructures are to continue to provide important services, and if they are not to be limited by their misuse, the protection of the information commons must become a central issue for its users).