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the commons in the guise of other CHM areas, similar to the United Nations Commission on the Limits of the Continental Shelf (“CLCS”) under UNCLOS.  This body could regulate cyber security like in the ATS and outer space, but through greater private sector partnerships.  Such a theoretical system is reminiscent of John Herz’s notion of ‘neoterritorality’ whereby sovereign states recognize their common interests, i.e. cyber security, through extensive cooperation, while also mutually respecting one another’s independence and the increasingly important role of non-state actors.85  This system of mutual autonomy in the context of international collaboration to dissuade, defend, and punish cyber attackers may fit well with a theoretical basis for regulating against cyber attacks in international law.  Sovereignty then should be conceived as an application of state control but about state authority.86  In the context of cyberspace, this authority should take the form of national and international efforts to regulate the largely privatized information commons, the details of which will be addressed in part V.  As cyberspace has tested traditional conceptions of sovereignty, so too is IW forcing a reinterpretation of the “use of force” and “armed attack” under the U.N. Charter.87


Analogizing Peacetime Responses to Cyber Attack in International Law

85 See generally Fred Dallmayr, Alternative Visions: Paths in the Global Village 64 (1998) (arguing that Frankfurt School philosopher Jurgen Habermas upholds the idealist tradition of Kant, Hegel, and Marx, arguing for a critical theory of modern society that fuses critical philosophy and emancipatory politics.  Postmodernists, influenced by Nietzche and Heidegger, alternatively view the humanist project of reason and progress as fundamentally flawed.  Bunn-Livingstone’s intersubjectivity is one way in which to make constructive progress with diverse groups expressing everything from radical relativism to xenophobia.  There is, according to this view, much more that unites than divides us, a sentiment in keeping with the transition from absolute to popular sovereignty).  A more moderate viewpoint is expounded by Michael Mann, who asserts that nation-states continue to wield some economic, ideological, military and political powers in the world order, albeit at a reduced level.  In this, the dominant view, sovereignty is now universal, having migrated from Europe and become a mainstay of global politics and a central philosophy of the world’s sole remaining superpower.  Hugh Willis, The Doctrine of Sovereignty Under the United States Constitution, 15 No. 5 Virginia L. Rev.  437 (1929).

86 J. Thomson, State Sovereignty in International Relations: Bridging the Gap between Theory and Empirical Research, 39 No.  2 International Studies Quarterly 213, 225 (Jun., 1995).

87 Joyner, supra note 15.

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