cyber security conundrum would stifle innovation, be a hard sell to the international community, and sacrifice the central characteristic of the generative internet. As a result, other treaty regimes should also be considered so as to avoid this drastic scenario.
The Analogy of the Law of the Sea
The law of the sea, like outer space, has many parallels with cyberspace. The process that ultimately resulted in the first United Nations Convention on the Law of the Sea (“UNCLOS”) treaty began in 1945 when President Truman issued a proclamation stating that the natural resources of the seabed and subsoil of the U.S. continental shelf were exclusively U.S. property.139 The practice was followed by nations around the world, 140 giving birth to the customary international law concept of the continental shelf since codified by four Geneva Conventions, beginning with UNCLOS I in 1958.141 However, UNCLOS I did not sufficiently address concerns about the legal status of the deep seabed, among much else. This served as an impetus for UNCLOS III held from 1973 to 1982. Finally 320 Articles were adopted with a roll call of 130 votes to four, with 17 abstentions and 160 nations overall participating.142 UNCLOS III was setup to regulate the use, exploration and exploitation of all living and non-living resources of
139 The continental shelf is defined as the “seabed and subsoil of the submarine areas that extend beyond a coastal state's territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.” Penelope Warn, Arctic Scramble: International Law and the Continental Shelf, Am. Soc. of Int’l L., Oct. 1, 2007.
140 Between 1946 and 1950, Argentina, Chile, Peru and Ecuador all extended their sovereign rights to a 200 nautical mile (370 km) distance. Other nations extended their territorial seas to 12 nautical miles (22 km). By 1967 only 25 nations still used the old 3 nautical mile (6 km) limit, 66 nations had set a 12 nautical mile (22 km) territorial limit, and eight had set a 200 nautical mile (370 km) limit. Id. at 15.
141 In 1956, the United Nations held its first Conference on the Law of the Sea (“UNCLOS I”). UNCLOS I resulted in four treaties: Convention on the Territorial Sea and Contiguous Zone, Convention on the Continental Shelf, Convention on the High Seas, and Convention on Fishing and Conservation of Living Resources of the High Seas.