management schemes such as the CLCS under UNCLOS. However, the Stanford Proposal excludes State conduct, addressing only conduct by individuals or groups.262 This underscores the fact that most international cooperation dealing with international information operations law has emphasized the need to cooperate on international criminal efforts to detract cyber terrorists. Little to no effort has been made to determine an appropriate legal framework for state-sponsored cyber attacks. Such a framework would have to be well-defined in an accord, as would an effective and mandatory enforcement mechanism such as binding international arbitration.
An international treaty on state-sponsored cyber attacks should make use of the effects principle as a mechanism for bypassing concerns over regulating cyberspace, and provide for an international committee to preserve the commons and promote international cooperation and innovation. Each area of the international commons has lessons on how, and how not, to regulate cyberspace to better deter attacks. Cyberspace is not a classic CHM area, like the deep seabed, but given that so many characteristics are shared the CHM analogy is useful. All commons regulated by the CHM share the need for international management of the commons territory, and the prohibition of weapons or military installations on that territory. The goal of this regulation is to preserve the commons, i.e., in this case the generative internet, for future generations. Yet cyber weapons cannot be outlawed, as they face the same concerns that the ICJ grappled with
262 Article 3 describes the conduct it covers, including: “interfering with the function of a cyber system, cyber trespass, tampering with authentication systems, interfering with data, trafficking in illegal cyber tools, using cyber systems to further offenses specified in certain other treaties and targeting critical infrastructures. States Parties would agree to punish all the forms of conduct specified. Article 3 was drafted with the goal of securing speedy agreement among nations to adopt uniform definitions of offenses and commitments, despite having different network capabilities and political interests. Offenses related to more controversial issues, including protection of intellectual property and regulation of political, ethical or religious content, are therefore omitted. Implementation of treaty offenses will be effected in domestic law of signatories in accordance with Article 2.” Stanford Treaty Proposal, supra note 29.