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The Artemis Accords: Repeating the Mistakes of the Age of Exploration

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“Space is a warfighting domain. . . . It is not enough to have an American presence in space; we must have American dominance in space.”- U.S. Vice-President Mike Pence, 20181

In the spring of 1493, the King and Queen of Spain sent an envoy to the Pope in Rome. Along with Portugal, Spain had just used its advanced sailing and navigation technology to reach “new worlds”, areas of the Earth that had not been previously discovered by Europeans. But they had a problem: they wanted to establish sovereign property rights in the lands they had discovered, but they weren’t sure they could do so under their own authority. So they turned to the only international authority in Europe at that time, the Catholic Church, which held sway over governments from Portugal to Poland, from the Arctic to the Mediterranean. If the Church would establish a legal framework that granted them sovereignty, then those nations would be bound to recognize it.2

This is the first lesson that the current governments of the world can learn from the Age of Exploration & Empire that began five centuries ago. Even then, the most powerful nation in Europe, with the largest army and most advanced technology, realized that it could not unilaterally establish property rights or any other kind of sovereignty without the approval of an international authority. After the Church granted that authority, Spain was able to create one of the greatest empires in history. Spain and Portugal formalized the arrangement with a binding international agreement, the Treaty of Tordesillas, whose purpose was to ensure peaceful cooperation between their nations, primarily by establishing a line of demarcation that separated their areas of activity.3

Unfortunately, the legal framework so established was based on national dominance, not multilateral international cooperation. The grant of sovereignty was exclusive, made only to Spain and Portugal, and it required them to subjugate the “savages” in the lands they discovered by taking along Church missionaries.This exclusivity did not sit well with other nations as they also developed the technologies of exploration; it was one of the reasons many northern European nations joined the Protestant Reformation and rejected the authority of the Pope in Rome. Without a fair and equitable international agreement that honored the interests of emerging states, the Church lost its ability to act as an arbiter between nations.

Even worse, the dominance model set up centuries of conflict among the major powers in Europe. Militant nationalism and economic colonialism became the principles guiding national policy. The result was centuries of war, suffering, and neglect among the major powers and the nations they subjugated. This pattern did not end until the 20th century, when the major powers fought two world wars and finally dismantled their colonial empires, sometimes peacefully, sometimes by force.

By the mid-1960’s, most countries on Earth were independent or on their way to becoming so. But a new conflict had started, one that threatened to repeat the mistakes of five centuries earlier. The great powers were once again using their advanced technology to explore new worlds, and the race was on to plant their flag on the Moon first. Under the ancient traditions, the country that did so would have a claim against all others for possession and use of the territory. The Cold War was about to expand into outer space.

But then something wonderful happened. In 1967, the United Nations proposed, and the world’s space powers accepted, an international agreement known as the Outer Space Treaty.4The Treaty was an intentional effort to avoid the mistakes of the Age of Exploration & Empire. Article I states that “The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.” Article II is even more specific: “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” Because of this Treaty, the United States carried a plaque to the Moon that said, “We came in peace for all mankind”.5 When the Apollo 11 astronauts planted the U.S. flag, they did so out of pride, but did not establish any claim or national priority.

This legal framework worked well initially, but people soon started wondering about what to do when countries and/or private entities wanted to start commercial activity on the Moon, or build settlements. The solution was the Moon Treaty, proposed by the United Nations and adopted by enough nations to come into force in 1984.6 But it has not yet been adopted by any space-faring nation. The United States, by a recent executive order, has specifically renounced the Treaty and stated its intentions to extract materials from the Moon without any international agreement.7

The newly announced Artemis Accords go even further. Although the actual Accords have not been released pending consultation with possible partners, the summary provided by NASA8indicates that the United States will unilaterally interpret the Outer Space Treaty to allow “space resource extraction”, despite the prohibition against appropriation in Article II of the Treaty. There will also be “safety zones” to avoid “harmful interference” with such operations. The effect is to establish exclusive economic zones, especially if “harmful interference” is defined to include economic harm, not just safety. Will the new Space Force be used to protect such economic interests? Will other nations be excluded if they support the Moon Treaty?9Will private actors be required to follow the same rules as states, as recommended in the recently-drafted Moon Village Principles?10This is the slippery slope of using unilateral action to establish economic rights rather than an international agreement.

The Artemis Accords acknowledge many beneficial agreements and policies: The Outer Space Treaty, Rescue Agreement, and Registration Convention (though not the Liability Convention); peace, transparency, interoperability, protecting heritage sites and sharing scientific information. But its unilateral authorization of space mining is a continuation of the Trump Administration’s underlying foreign policy strategy: unilateral dominance over international cooperation. The United States has withdrawn from the Paris Accords, the Iranian nuclear deal, and, in the middle of a pandemic, the World Health Organization. Dominance has even become the theme of the Administration’s domestic policy, with President Trump recently telling governors, “If you don’t dominate, you’re wasting your time. . . . You have to dominate.”11That core philosophy is now being applied to outer space, as Vice-President Mike Pence proudly announced (above). Despite the lessons of history, the United States is going full speed ahead with the “dominance” model of space development rather than working with the nations of the world to develop a “cooperation” model. Outer space, which so far has been preserved for peace and cooperation, is about to be spoiled, perhaps forever.

But if the Moon Treaty is the key to peaceful cooperation in outer space, why haven’t more nations adopted it? The reason appears to be that the Treaty is incomplete, and thus flawed. Article 11 requires an implementation agreement to create the legal framework for private activity. Without that agreement in place, some states fear the worst, that they will lose their sovereignty if they adopt the Treaty, especially since it refers to outer space as the “common heritage of mankind”. Private mining interests are afraid that their profits will be taxed for redistribution to less-developed countries. As one space law scholar put it:

“Some would say the biggest challenge for the implementation of the Moon Agreement are four little words found in Article 11 . . . the “common heritage of [hu]mankind”. . . . At first glance, it appears that to implement the concept of common heritage of humankind, an international body must be created to redistribute wealth and technology among nations.”12

Some even wonder if they will be able to market the materials they extract. As recently explained by an attorney for the mining industry:

Here’s the issue on the security of tenure [the right to extract materials] and the fiscal regime: there’s an Outer Space Treaty that was signed by a lot of countries when the moon exploration was going on, and the treaty includes a provision that says you can’t appropriate celestial bodies, that would include the moon.

The question is — what happens if I go to the moon? I set up shop, and I extract ice and rocks and start making things, do I own the rocks that I’ve extracted? I’m not saying that I own the moon, but if I put in the effort, do I own the resources? Same thing with asteroids,if I send a robot to the asteroid, it sets up shop and starts extracting things and using them, do you own the extracted mineral? And that’s the legal issue, that’s the unsettled question.13

Until the rule of law is extended to the Moon by such an international agreement, there will be great uncertainty as to the viability of commercial activities. It is an axiom of economics that businesses and investors hate uncertainty, as it makes it impossible to analyze risk and estimate the return on investment.

The solution is to create an implementation agreement that addresses these concerns and can be adopted along with the Moon Treaty. To that end, a Model Implementation Agreement has been drafted by The Space Treaty Project. It was first distributed for comment in 2018 and made its public debut at the 2019 Shanghai Advanced Space Technology conference. It has recently undergone peer review and was published in the Journal of Advances in Astronautics Science and Technology.14

The Model Implementation Agreement has only 10 paragraphs and is based on four organizational principles:

1) The Agreement must be comprehensive and support all private activity;

2) The Grand Bargain: Trade private property rights for public policy obligations;

3) Defer issues currently at impasse (e.g., monetary sharing of benefits) by creating a governance process for making future decisions;

4) Integrate and build upon current institutions and processes.

The Model Agreement supports all private activity by defining the “use of resources” to include the use of any location on the Moon for any purpose, much the same way that real estate and property rights are considered resources on Earth. Any use would be supported if the private activity is authorized/supervised by a country that has adopted the Moon Treaty and the implementation agreement, because any country that has done so has agreed to the public policy obligations therein and to require that their nationals abide by them.

What are the obligations of the Moon Treaty that the countries and their nationals must accept? They are summarized in paragraph 4 of the Model Agreement:

4. Public Policy Obligations

The States Parties agree that the public policy obligations of the Treaty and this Agreement include the following:

1. Use outer space exclusively for peaceful purposes (Article 3.1);

2. Provide co-operation and mutual assistance (4.2); 

3. Honor the Registration Convention and inform the public of:

– Activities (5.1)

– Scientific discoveries (5.1)

– Any phenomena which could endanger human life or health (5.3)

– Any indication of organic life (5.3)

– The discovery of resources (11.6)

– Any change of status, harmful impacts of activities, use of nuclear power, and links to websites for specific objects/activities [COPUOS recommendations]

4. Protect the environment and preserve areas of “special scientific interest” such as historic landing sites (7.1-7.3);

5. Allow free access to all areas by other parties (9.2);

6. Honor the Rescue Treaty (10.1)

7. Share technology as part of sharing the benefits of outer space with less technologically advanced countries (4.1-4.2)

The full Agreement [follows this article] or [is available at http://spacetreaty.org/modelimplementationagreement.pdf]:

Most of these obligations are already established in other widely adopted treaties, i.e., the Outer Space Treaty, the Rescue Agreement, the Registration Convention, and the Liability Convention. Even the Artemis Accords acknowledge many of them (see above).But there are some that are not acknowledged, such as sharing the discovery of resources, protecting the natural environment, and sharing technology. The Accords are also silent as to whether its obligations will apply to private parties.

Sharing technology is not specified in the Moon Treaty, but some view it as included in Article 4:“The exploration and use of the moon shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development.”The “Building Blocks” of The Hague Spaces Resources International Working Group call for sharing technology on a “mutually-accepted basis”.15The Working Group members were “stakeholders of space resource activities and represent consortium partners, industry, States, international organizations, academia and NGOs.”16It is significant that stakeholders from the private sector are willing to consider the sharing of technology. If a “mutually-accepted basis” for sharing cannot be found, the Model Agreement would require the licensing of technology at fair market value.

Accepting the obligations of the Moon Treaty is the trade-off for private property rights, the “Grand Bargain” in the organizational principles. They are no more onerous or burdensome than the obligations that property owners must accept on Earth. Here, property owners must always consider what effect activity on their own property will have on others. Property on Earth is subject to regulation (e.g., zoning, permits, safety) and can be taken (with compensation) for public policy reasons. It is unreasonable to expect that the use of property on the Moon will not be subject to similar regulation.

The Model Agreement contains other provisions, such as controlling law, dispute resolution, and future governance for substantive decisions. It also protects the rights of individuals and those wanting to establish private settlements: “Nothing in this Agreement or in the Treaty shall be interpreted as denying or limiting the rights guaranteed to individuals by the Universal Declaration of Human Rights, or the right of settlements to seek autonomy and/or recognition as sovereign nations.” (Paragraph 10). By providing legal support for all private activity, protecting individual rights, and maintaining essential public policies, the Model Implementation Agreement satisfies all concerns about the Moon Treaty and creates a practical, cooperative alternative to the unilateral and exclusive dominance model being proposed by the United States.

The current Model Agreement is the product of consultation with many individuals and organizations over the past three years. It now being presented for consideration as a reasonable alternative to the Artemis Accords. If adopted, the Agreement will have a significant advantage over the Accords in that, like all treaties, it will be an enforceable international agreement that is binding on the States Parties, not just a unilateral action by one country with a few activity partners. It will also be comprehensive, supporting all private activity, not just materials extraction like the Accords. And it will include an overall framework for international cooperation, including controlling law and dispute resolution, none of which are included in the Accords.

We have become familiar with the Overview Effect, that fundamental change in attitude that comes from viewing the Earth from space, as with the picture of Earthrise taken from the Moon in 1968. We must now take an overview through time. Humanity is on the verge of leaving the home planet. It is the greatest adventure and opportunity in our history, but it will be an opportunity lost if we repeat the mistakes of the last Age of Exploration. We can continue to preserve outer space for peaceful cooperation, or we can extend the pattern of domination and conflict that for too long has controlled our destiny on Earth.

At this most pivotal moment in history, the choice is ours.

Many thanks to Vidvuds Beldavs and the International Lunar Decade (https://ildwg.wordpress.com/) for assistance in researching this article.

References

1. Washington Post, videos of U.S. Vice-President Mike Pence: “Space is a warfighting domain”, October 23, 2018. https://www.youtube.com/watch?v=0LtLNp4nde0“We must have American dominance in space”, August 9, 2018. https://www.youtube.com/watch?v=9xEkyT7XrxQ

2. Bulls of Donation (1493), Wikipedia (Three papal “Bulls of Donation”- Inter Caetera,Eximiae Devotionis,and Inter Caetera (2)- were issued May 3-4, 1493, and a fourth – Dudum Siquidem– on September 26, defining the terms of the “donation” of lands to each country). https://en.wikipedia.org/wiki/Bulls_of_Donation#cite_note-verzijl-1

3. The Treaty of Tordesillas (1494), Wikipedia.https://en.wikipedia.org/wiki/Treaty_of_Tordesillas

4. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (The Outer Space Treaty, 1967), United Nations Office of Outer Space Activities (UNOOSA).http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html

5. Lunar Plaque, Wikipedia.https://en.wikipedia.org/wiki/Lunar_plaque#cite_note-Moon_Flag-1

6. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (The Moon Treaty, 1984), UNOOSA.http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/intromoon-agreement.html

7. Executive Order on Encouraging International Support for the Recovery and Use of Space Resources, The White House, April 6, 2020.

https://www.whitehouse.gov/presidential-actions/executive-order-encouraging-international-support-recovery-use-space-resources/

8.NASA, The Artemis Accords (2020).https://www.nasa.gov/specials/artemis-accords/index.html

9. “Australia would be obliged to withdraw from the Moon Treaty if it accepts an offer to join the Accords.” Mark Whittington, How the United States plans to make space exploration pay, The Hill, April 26, 2020.https://thehill.com/opinion/technology/494730-how-the-united-states-plans-to-make-space-exploration-pay?fbclid=IwAR3lwrIV43fPX6T7lMDFC9tilnzZiBdidgUEAVLzNsTl6FLBnGtInT1xWMI

10. “States shall authorize and continually supervise all lunar activities of their nationals in order to ensure compliance with international law.” Moon Village Association,Moon Village Principles Issue 2 (draft), March 5, 2020. https://moonvillageassociation.org/moon-village-principles-mvp-issue-2-draft-public-consultation-opens/

11. David Choi, ‘Exactly what President Trump wants’: Democratic governors are shunning Trump’s calls to ‘dominate’ protests using military forces, Business Insider, June 1, 2020. https://www.businessinsider.com/state-leaders-shun-trumps-calls-to-dominate-protests-using-military-2020-6

12. Michelle Hanlon, What is the Moon Treaty and is it still useful?,Filling Space, May 14, 2020.https://filling-space.com/2020/01/17/what-is-the-moon-treaty-and-is-it-still-useful/?fbclid=IwAR2HHd5x6hPQQf7AsuLuVoy5JpY98LxsWEbYofRCjiRwTIqKn8gkMP5tDGc

13. Stutt, Amanda, How Earth-bound Mining Lawyers Think About Space Mining (interview with Scot Anderson, attorney and Global Head of Energy & Natural Resources with the law firm Hogan Lovells in Denver, Colorado),Mining.Com, Jan. 3, 2020.https://www.mining.com/how-earth-bound-mining-lawyers-think-about-space-mining/?fbclid=IwAR0pbCwO20c9W_uEd1Rve0ME_6Aw5Z4XMcqr_MdTSrYr-L-VkB_TkKD5JrI

14. O’Brien, D. Legal Support for the Private Sector: An Implementation Agreement for the Moon Treaty. Adv. Astronaut. Sci. Technol. (2020). https://doi.org/10.1007/s42423-020-00059-w

15. The Hague International Space Resources Governance Working Group, Building Blocks For The Development Of An International Framework On Space Resource Activities (13. Sharing of benefits arising out of the utilization of space resources),November 2019.https://www.universiteitleiden.nl/binaries/content/assets/rechtsgeleerdheid/instituut-voor-publiekrecht/lucht–en-ruimterecht/space-resources/bb-thissrwg–cover.pdf

16.The Hague International Space Resources Governance Working Group, International Institute of Air and Space Law, Leiden University (2019)https://www.universiteitleiden.nl/en/law/institute-of-public-law/institute-of-air-space-law/the-hague-space-resources-governance-working-group

Model Implementation Agreementfor the Moon Treaty (May 2020)

Preface

The provisions of this Agreement and the underlying Treaty shall be interpreted and applied together as a single instrument. In the event of any inconsistency between the Agreement and the Treaty, the provisions of the Agreement shall prevail. After the adoption of the Agreement, any instrument of ratification or formal confirmation of or accession to the Treaty shall also represent consent to be bound by theAgreement. No State or entity may establish its consent to be bound by the Agreement unless it has previously established or establishes at the same time its consent to be bound by the Treaty.

1. Administration; Creation of Agency

The States Parties agree to create as soon as is practicable an agency (“Agency”) to administer the provisions of the Agreement Governing The Activities Of States On The Moon And Other Celestial Bodies (“Treaty”) and this Implementation Agreement (“Agreement”).

2. Licenses for Private Activity; Exploitation of Resources

The States Parties agree to authorize the Agency to issue licenses to non-governmental entities (“NGE”) for the priority exploitation of resources. Exploitation of resources shall include but is not limited to: (a) the extraction of materials, (b) the use of a location for any other commercial activity [e.g., tourism], and (c) the use of a location for non commercial private activity [e.g., science, settlements]. Licenses shall describe the extent, duration, and nature of the activity and shall maximize free access for all in accordance with Article I of the Treaty On Principles Governing The Activities Of States In The Exploration And Use Of Outer Space, Including The Moon And Other Celestial Bodies [the Outer Space Treaty]. Activity by governments is authorized under Treaty Articles 8 and 9.

3. Requirements for License; Adoption of Obligations

The States Parties agree that the Agency shall issue a license for any NGE activity that is authorized and supervised by a State Party to this agreement. The States Parties further agree to require that their nationals (a) accept the public policy obligations of the Treaty as mandated by Treaty Article 14, and (b) share technology as described in Paragraph 5 of this Agreement. The license shall be revoked if, at any time, a licensed NGE fails to comply with its obligations.

4. Public Policy Obligations

The States Parties agree that the public policy obligations of the Treaty and this Agreement include the following:

1. Use outer space exclusively for peaceful purposes (Treaty Article 3.1);

2. Provide co-operation and mutual assistance (4.2); 

3. Honor the Convention On Registration Of Objects Launched Into Outer Space (“Registration Convention”) and inform the public of:

– Activities (5.1)

– Scientific discoveries (5.1)

– Any phenomena which could endanger human life or health (5.3)

– Any indication of organic life (5.3)

– The discovery of resources (11.6)

– Any change of status, harmful impacts of activities, use of nuclear power, and links to websites for specific objects/activities [COPUOS recommendations]

4. Protect the environment and preserve areas of “special scientific interest” such as historic landing sites (7.1-7.3);

5. Allow free access to all areas by other parties (9.2);

6. Honor the Agreement On The Rescue Of Astronauts, The Return Of Astronauts And The Return Of Objects Launched Into Outer Space(“Rescue Treaty”) (10.1)

7. Share technology as part of sharing the benefits of outer space with less technologically advanced countries (4.1-4.2)

5. Sharing Technology; Exclusions

In accordance with Treaty Article 4, the States Parties agree to develop a process for sharing technology on a mutually acceptable basis. Until or in the absence of such a process, the States Parties agree to require their nationals to license technology at no more than fair market value. Technology that is subject to export controls shall be excluded from these requirements.

6. Standards and Recommended Practices; Registry

The States Parties, in consultation with non-governmental entities, agree to develop technology standards and recommended practices for the safe use and development of space resources. Such standards or practices shall not require technology that is subject to export controls. The Agency and/or other designated entities shall maintain the registry of such information and any information relevant to activities on the Moon that is not included in the registry for the Registration Convention that is maintained by the United Nations.

7. Protected Sites; Designation

The States Parties agree to prohibit the use or disturbance of any location on the Moon or other celestial body that is the site of a historical mission that occurred more than 20 years prior to the authorization of new activity pending a final determination of the site’s status as a Cultural Heritage Site. This prohibition applies to the location of any equipment and any evidence of presence (e.g., footprints, tracks). The States Parties agree to develop standards and recommended practices for determining what historical, cultural, or scientific sites should be protected or to designate another entity/process for making such determinations that will be binding on the States Parties.

8. Governance; Fees

The States Parties agree to create a process of governance for making substantive decisions as authorized under Articles 11 and 18 of the Treaty. The States Parties are financially responsible for the Agency, which shall be operated in a cost-effective manner. The collection and use of fees for administration or any other purpose is a substantive decision to be made by the governance process.

9. Dispute Resolution

The States Parties agree that any dispute concerning this Agreement or the Treaty shall be addressed using the consultation process detailed in Treaty Article 15. As an alternative, the States Parties hereby authorize the voluntary use of binding arbitration in accordance with the 2011 Permanent Court of Arbitration Optional Rules for Arbitration of Disputes Relating to Outer Space Activities. The results of such arbitration shall be enforceable underThe Convention on the Recognition and Enforcement of Foreign Arbitral Awards(“New York Convention”).  The Agency shall facilitate and inform the arbitration.

10. Controlling Law; Rights of Individuals, Settlements

In accordance with Treaty Article 12, the States Parties agree that the controlling law at any location shall be the law of the country that authorized/supervises the activity at that location, subject to this Agreement and Treaty. Relations between locations of different nationalities will be governed by current international law, including theConvention On International Liability For Damage Caused By Space Objects(“Liability Convention”), until such time as new substantive rules are created under the governance process in Agreement Paragraph 8, as authorized by Treaty Article 18. Nothing in this Agreement or in the Treaty shall be interpreted as denying or limiting the rights guaranteed to individuals by the Universal Declaration of Human Rights, or the right of settlements to seek autonomy and/or recognition as sovereign nations.

Dennis O’Brien is a member of the International Institute of Space Law and founder of The Space Treaty Project (www.spacetreaty.org). The Project is a member of the Moon Village Association; Mr. O’Brien sits on their Coordination & Cooperation workgroup

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International Law

Submarine Cables: The Global Data Infrastructure and International Law of the Sea

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Image source: indiatoday.in

As a lay person, it is a common perception that data and communication signals travel through multiple satellite systems orbiting around the earth. However, this is a grave misconception. As one writer puts it, “but that the communication signals themselves are then broken into bits of data, which then ply the ocean depths at the speed of light via unseen cables, is hard to imagine.”[1] The reality is that 99% of the world’s communication data is currently moving through hidden undersea cables. These are now befittingly called as the “Out-of-Sight Arteries of Globalization”.[2] These submarine cables are functioning as a global infrastructure for the movement of inter alia big data, communication signals, phone traffic and even financial capital around the world. During the past decade, the weaknesses and gaps in the protection of these underwater fiber-optic cables under International law has come to the fore. This article is aimed at critically analyzing the vulnerability in International law to protect these global underwater data highways.

History & Background

In the year 1858, the first transatlantic subsea cable was laid down between Ireland and Newfoundland which snapped 26 days later.[3] In the year 1864, another transatlantic cable was placed between the same territories and this time it proved to be successful. Following this success, there was no looking back and submarine cables were placed between various territories along the seabed of the Pacific Ocean.[4] Interestingly, the transmission speeds for these first telegraph cables were 12 words per minute which increased exponentially to 200 words per minute by the 1920’s. The invention of the telephone expanded the reliance on these transcontinental cables. From the beginning of the 1950’s until  the late 1960’s underwater coaxial cables dominated intercontinental voice communications.[5]

It was the invention of satellite systems during the 1970’s which greatly reduced the reliance on subsea cables for use in communication technologies. Although the satellite systems dominated the telecommunications world for more than a decade, they were soon replaced by the invention of fiber-optic cables. Fiber-optic cables were more capacious in carrying vast amounts of data and signals as compared to coaxial cables of the bygone days.[6] The first fiber-optic cable was laid down in the year 1986. As of 2019, there are 241 active and distinct fiber-optic subsea cables which are mapping a length of 1.1 million kilometers (km) of the seabed.[7] One writer points out the dominance of undersea cables over satellites by the fact that if they were to stop transmitting then “only 7% of the total United States data traffic volume could be carried by satellite”.[8]

Global Significance & Issue of “Materiality”

Subsea cables are a crucial part of the digital economy, making flows and exchanges of data possible. Astonishingly, they are considered to be intangible, immaterial and un-territorial under the international legal framework.[9] It is understandable that an average person using the internet is unaware about the physical aspect of data transmission. However, International law and its supremacy is founded upon physical objects and materiality. International law experts are now increasingly engaging in such a method of analysis as compared to archetypical theoretical frameworks. Hohmann and Joyce explain that “in revealing the deep entanglements of international law and the material things around us, we can begin to understand how international law structures and disciplines its subjects—and sets the contours for the possibilities and limits of our lives—through objects.”[10]

It is absolutely imperative that International law recognizes the physicality of undersea cables which are now deeply intertwined with the social, economic, legal and technological orders of a digital age. International law and its dominance is moulded by the physical infrastructures which are an important factor in the growth of modern digital economies. Undersea cables are now the subject of competition and struggle between both state and non-state actors (e.g developers and corporations). These struggles include title, control, access and territorial sovereignty.[11] All these fall within the ambit of International law, and efforts must be made to enable a fair regulation.

International Legal Framework and Challenges

The protection and security of subsea cables has been the subject matter of at least seven different international conventions between late 19th century and the beginning of 20th century. It all started with “The Convention for the Protection of Submarine Telegraph Cables (1884)” which was inked in Paris. The 1884 convention was applicable in the territorial waters of the signatory states, making the damage of such cables a punishable offense.[12] The primary purpose of this treaty was to encourage the stakeholder States to promulgate domestic legislation protecting these cables.

The World moved on from the Telegraph to the Telephone, but these undersea cables remained of cardinal importance in communication technology. These cables were an agenda topic in the United Nations International Law Commission (ILC) on the law of the sea. In the International Law Conference of the Sea (1958), three articles relevant to the protection of subsea cables were incorporated into the Geneva Convention of the Law of the Sea (1958).[13] It was also agreed that the provisions of the 1958 conventions will not affect any previous treaties (which included the 1884 convention).[14]

In the year 1973, the UN held a third conference to debate upon the law of the seas and this subsequently resulted in the “United Nations Convention on the Law of the Sea, 1982 (UNCLOS)”. This time again, three provisions (Articles 113 to 115) specifically addressed the protection of undersea cables. Unfortunately, neither the 1982 UNCLOS nor its predecessor treaties could correctly envisage the importance of submarine cables to a digital age.

Pursuant to Art. 21 and 113 of the UNCLOS, littoral states have the authority to enact domestic legislation to protect the subsea cables or any other conduit that lay beneath their territorial waters. States are under no obligation to enact such legislation, and for this reason, most of the littoral states have abstained from doing so. Many studies and reviews have found that there exists little or no domestic legislation which criminalizes any damage caused to such cables.[15]

In addition to this, there does not exist a legal regime which could potentially prosecute offenders who damage undersea cables which are located in the high seas. The UNCLOS limits the jurisdictional protection to flag-bearer vessels.[16] This implies that littoral states could prosecute foreign vessels for damaging fiber-optic cables within its territorial waters, but not otherwise. As a result, there exist significant lacunae in the prosecutions of intentional or negligent damage of such important infrastructure. It is clear that the undersea cables are more prone to nefarious designs to disrupt communications by the foreign vessels of adversary states in the high seas. In terms of technological advancements, the data transmission network has moved forward by leaps and bounds. Legally, the International framework has failed to keep up.

Conclusion

In a modern digital world, these hidden subsea cables are a site of politics, power, communication and most importantly contestation. These cables may prima facie be an invisibility. But the real importance of an invisibility lies in the phenomenon it enshrouds. It is about time that International law recognizes that global digital economies are functioning and prospering through a hidden network of key infrastructure which needs better and impenetrable protection.


[1] Douglas R. Burnett & Lionel Carter, International Submarine Cables and Biodiversity of Areas Beyond National Jurisdiction: The Cloud Beneath the Sea, BRILL RESEARCH PERSPECTIVES IN THE LAW OF THE SEA, 3 (2017).

[2] Surabhi Ranganathan, The Out-of-Sight Arteries of Globalization, Visualizing Climate and Loss, http://histecon.fas.harvard.edu/climate-loss/lawofthesea/arteries.html

[3] Lionel Carter & Douglas R. Burnett, Subsea Telecommunications, in ROUTLEDGE HANDBOOK OF OCEAN RESOURCES AND MANAGEMENT, 349, 350 (Hance D. Smith, et al. eds., 2015)

[4] Stewart Ash, The Development of Submarine Cables, in SUBMARINE CABLES: THE HANDBOOK OF LAW AND POLICY

[5] Lionel Carter & Douglas R. Burnett, Subsea Telecommunications, in ROUTLEDGE HANDBOOK OF OCEAN RESOURCES AND MANAGEMENT, 349, 350 (Hance D. Smith, et al. eds., 2015)

[6] Ibid

[7] Working Group 8 Submarine Cable Routing & Landing, Final Report – Protection of Submarine Cables Through Spatial Separation, THE COMMUNICATIONS SECURITY, RELIABILITY & INTEROPERABILITY COUNCIL IV, 1

[8] Stephen C. Drew & Alan G. Hopper, Fishing and Submarine Cables: Working Together, International Cable Protection Committee (February 23, 2009) at 8, available at https://www.iscpc.org/publications/

[9] Territoriality and Intangibility: Transborder Data Flows and National Sovereignty, in Beyond National Sovereignty: International Communication in the 1990s 259 (Kaarle Noerdenstreng & Herbert I. Schiller eds., 1993)

[10] International Law’s Objects, 2 (Jessie Hohmann & Daniel Joyce eds., 2019).

[11] Jeremy Page, Kate O’Keeffe & Rob Taylor, America’s Undersea Battle With China for Control of the Global Internet Grid, Wall Street J. (Mar. 12, 2019)

[12] George Grafton Wilson, The Law of Territorial Waters, 23 AM. J. INT’L. L. 2, 241-380 (Apr 1929)

[13] Eric Wagner, Submarine cables and protections provided by the law of the sea, 19 MARINE POLICY 2, 127, 135 (Mar. 1995)

[14] Convention of the High Sea, Apr. 29 1958, 450 U.N.T.S. 11 (codifying this provision at Article 30, excerpted here: “The provisions of this Convention shall not affect conventions or other international agreements already in force, as between States Parties to them.”)

[15] Robert Beckman, Protecting Submarine Cables from Intentional Damage, in SUBMARINE CABLES: THE

HANDBOOK OF LAW AND POLICY

[16] UNCLOS (1982), Art. 27

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International Law

Locating Sustainable Migration Framework in a Globalized World beyond the UNCSR

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Photo Credit: © UNHCR/Ivor Prickett

The traditional understanding of refugee protection and safeguards enshrined in the 1951 UN Convention relating to the Status of Refugees (UNCSR) with its 1967 Additional Protocol has come to a tipping point. The current scenarios of mixed human migration have given a new term that defines the “new refugee” as “migrant” due to the imprecise distinction between refugee and migrant in the wake of enlarging protections and expanded challenges to the refugee interpretation under UNCSR. Today, mixed human migration has become the determinant factor to critically appreciate the experiences, familiar routes, and intentions of refugees and migrants and threats to the protection system in the wake of emerging populist radicalism in the Global North and Global South with equal intensity. Such radical trends are generally backed by the majoritarian political discourse in constitutional democracies. But such revanchist patterns could only be contained by the re-mainstreaming of liberalism in our geopolitical identities.

New Categories in a Globalized World

Thus, the mixed human migration has necessitated the creation of new categories beyond the traditional understanding provided in UNCSR. Historically, the remarkable distinction between “refugee” and “migrant” is based on the institutional recognition of the notion that the refugee enjoys an elevated status in the framework of international law. However, the nation-states and inter-governmental mechanisms attend refugees based on the thresholds of gravity of refugee situations on a particular occasion. Consequently, such arrangements recognize the “refugees” and derecognize the “economic migrant.” However, in reality, it has now become a well-established understanding that such divisions between these categories are difficult to make in a globalized world. Alexander Betts has written about people who flee hostile circumstances and called such flight “survival migration,” especially from unstable nation-states, situations of socioeconomic violations, and climate change-driven displacement that have not yet been recognized as refugees under UNCSR. Unfortunately, there is no political understanding among the UN member states to broaden the limits of the UNCSR definition of a refugee by creating the new protection categories. Therefore, it is imperative in the present scenario to defend the existing “refugee” category, and nation-states strive to extend protection under international human rights treaties to other groups of vulnerable migrants fleeing persecution beyond UNCSR.

Global Compacts on Refugees & Migration

The origin of the Global Compact on Refugees (GCR) and Global Compact on Migration (GCM) is knotty as a global political project. Primarily, in late 2015, the strategy was to conclude and adopt a comprehensive plan of action for Syrian refugees and Mediterranean routes of refugees who have created a refugee crisis in Europe. Therefore, global institutional politics and other multiple reasons paved the way to adopt such a plan of action in January 2016 for organizing an international conference in New York in September 2016 with the mandate to have GCR. Simultaneously, other world institutions also hard-pressed for a similar arrangement called GCM to create equilibrium for proportionate protection. Such segregation was required due to the organizational distribution of business within the UN system. Therefore, the UNHCR (UN High Commissioner for Refugees) was mandated to act upon and implement GCR.

In contrast, Switzerland and Mexico have co-supervised the parallel GCM programme and its modalities for implementation. Though these Global Compacts have common characteristics, gaps, and intersections mainly, there is small space for internally displaced persons (IDPs) and transnational displacement that has not been recognized in the refugee definition. But UNHCR has proposed specific plans for implementing GCM that incorporate significant steps for migrants in vulnerable conditions. As a result, these Global Compacts have been playing relatively different roles as GCR attempts to address the gaps in the UNCSR by ensuring fundamental principles of humanity and international solidarity and strives to implement the principles of burden-and-responsibility-sharing (BARS) for refugee protection, assisting the refugees and supporting the refugee-hosting countries and communities. On the other hand, GCM provides a nascent global migration governance system as a first step. GCM is an intergovernmental agreement brokered by the UN that addresses all dimensions of global migration holistically and comprehensively and confronts the challenges relating to the worldwide movement by strengthening the contribution and engagement of migrants to sustainable development.

The Role of UNHCR & Shifting Global Debate

The position of UNHCR has become challenging as it confronts a multitude of constraints such as cuts in the humanitarian budget by the US, widespread non-compliance with the UNCSR and its Additional Protocol, and the emergence of institutional rivalry with the entry of IOM in the UN system. However, UNHCR has taken a restrained approach and deliberately excluded many parts from the current global debate on GCR, particularly Lego-institutional reforms. The GCR’s Comprehensive Refugee Response Framework (CRRF), Global Refugee Forum (GRF), and a string of Solitary Platforms provide the foundation for the philosophy of change and emplace global arrangement for international cooperation and addressing particular refugee crises. These institutional arrangements in the GCR framework, like CRRF and GRF, stipulate a new development-based and market-driven model of operation with a lot of pragmatism. GCR is an itinerary of actions and actors entrusted to implement the BARS and the entire ambit of modes of contribution on the part of stakeholders. The GCR is a remarkable achievement in its normative and substantive significance and commitments, provided it is executed on the ground. The CRRF has been showing positive results in Ethiopia and Kenya. However, it is the political leadership that has to determine new commitments and promises.

In the present scenario, international institutions require the exceptional and unprecedented capacity to lead collective action based on moral yet pragmatic parleys and diplomacies. World history is a testimony that non-binding intangible and universal commitments of the nation-states incommensurate with the international refugee regime do not serve a significant purpose. At least five to eight years must be demarcated to assess the impact of the Global Compacts on the ground. To do an impact assessment of GCR and GCM along with durable solutions, there are numerous refugee situations like Rohingya refugees in Bangladesh and India, Afghan refugees in Pakistan and Iran, Syrian refugees in Europe, Lebanon and Jordan, Mexican refugees in the US, Somali refugees, Venezuelan refugees in Colombia and Brazil, Afro-Asian refugees in Canada and Tibetan refugees in India. Though the GCM stipulates principles only, it has to evolve its intellectual contours in its initial stages to establish a global migration governance system, and its institutionalization will consume years ahead. However, the GCM is a remarkable achievement that has made migration a head-on agenda item for the UN system.

Global Refugee System: A Critique

Off late, UNHCR has not been innovative and inventive for an expansion of alternatives for refugee protection. It has adopted a guarded approach under which several issues have been put on hold. For long, UNHCR has been avoiding institutional reforms and keeping the refugee definition out of its re-consideration and re-formulation in tune with the current objections by the Global South countries. UNCSR refugee definition is the most significant contention of the Global South countries. It is a Eurocentric formulation and does not cater to the needs of the refugee people from the Global South nation-states. As a whole, the UNCSR regime is regarded as a Global North project imposed on Global South countries. Presently, many UNHCR personnel acquiesce in institutional politics, and the threat has been looming upon them that might jeopardize refugee protection. In such a pessimistic atmosphere, the GCR and CRRF provide a ray of hope for refugee protection. But there would be numerous geostrategic and geopolitical challenges such as the metamorphosis in the thresholds of global world order in terms of the recalibration and transformation of goal-posts of international power politics, the impact of socioeconomic praxis, the emergence of the artificial intelligence in RSD, and immigration procedures, and resurgence of far-right and nihilistic nationalism for minorities, and LGBTQI groups worldwide. Therefore, UNHCR has to continue to adapt to the changing circumstances, particularly by developing and re-crafting its capability for political leadership along with the existing humanitarian leadership in the context of global restrictionism.

Mixed Migration: A Divide between Principles and Pragmatics

The normative understanding of refugee protection and their human rights must not be sandwiched between principles and pragmatics of the regulatory approach. It is the cause of refugee protection that must alone prevail in global institutional priorities, intergovernmental primacies, and political urgencies in any given situation. But the divide between principles and pragmatics of refugee protection has been increasingly widening at an unprecedented scale that has made the UNCSR partially irrelevant, and several governments do not feel embarrassed with their public apathy towards refugees. Even though, immigration has squarely benefited and enriched the host countries of the Global North by building societies based on multiculturalism, pluralism, and cosmopolitanism. However, the political advocacy of right-wing nationalism in Australia, Canada, Europe, the US, South Asia, South-East Asia, and elsewhere conveys that the Global North has been incriminating immigration in the name of pragmatism by undermining the principles of migration.

The far-right nationalism breeds backlash and xenophobia. There is a need to repulse the anti-immigration surge. Global migration is, prima facie, not an immigration narrative alone; instead, it is, predominantly, impregnated with refugee dimensions that have to be dealt with under UNCSR and GCR instead of restrictive immigration laws. Because when immigration law stops, refugee law begins. Immigration law is based on nationalism, and refugee law is based on globalism. The global principles of the rule of law must comport with secular democracy, inclusive human rights, and liberal pluralism. These principles must get the support of the electorates in all geopolitical entities across the world. Such steps will guard these principles from far-right-wing politicians who are hell-bent on eroding universal liberal values. Therefore, the international community must reconcile the idea of liberal internationalism with the notion of secular democracy; otherwise, humanity would not be able to defeat the resurgent Frankenstein of international politics.

Global Public Perception & Sustainable Migration Framework

The global public perception suffers from the fear and impact of the increasing population of refugees and migrants, and Global North countries are reluctant to host them. There are 84 million displaced people worldwide, and out of them, 26.6 million are refugees (as of mid-2021). However, the challenge is greater geographical concentration as 85% of refugees live in low and middle-income countries, and 60% are present in just ten countries. Meanwhile, global migration trends have been mostly steady in terms of proportion to the global population since the 1970s, although the statistics of the people have increased from 70 million to 240 million. However, the refugee crisis has never been a crisis of statistical data; rather, it is the crisis of international politics and trust deficit among the comity of nations. The people of Global North countries are skeptical and fearful of socio-cultural transformation due to the triggering of structural changes with the arrival of refugees. Such changes cause the loss of low-skilled manufacturing jobs, starting of the politics of austerity, and politics-driven campaigns by the far-right-wing politicians in the host countries. In such a situation, the global community must develop a sustainable migration framework based on migrants-oriented policies that address both host and transit countries in equal measures.

One of the biggest challenges in the current world order is reconciling democracy with globalization in the wake of anti-migrant populism in Global North and Global South countries with equal far-right ferocity? It is, indeed, a significant challenge to preserve the optimism in the present world where electoral choices are expressed with technology, and sovereign citizens demand the re- endorsement and re-statement of national sovereignty in all its manifestations. Therefore, such integration of democracy and globalization needs a substantial amount of creativity that includes a new perception about normal human mobility and forced migration. Such optimism needs farsighted global governance supported by institutions and subsidiary organizations of the UNO, regional and other inter-governmental organizations. However, such a possibility right now is absent due to the international orders increasingly becoming more and more obstructive and deterring human mobility. There is a need to have collective measures to address the problem of the exodus of hybrid migration resulting in a backlash in the destination countries. It further jeopardizes the lives of people taking strenuous and frantic travels in search of safer refuge. Such reckless journeys become the cause of mushrooming of criminal syndicates indulging in human trafficking and criminalizing migration networks that mount a massive burden upon the capabilities of refugee-hosting countries while chipping away the thresholds of refugee safety.

Way Forward

On the basis of our cumulative experiences, there is a need to re-imagine the innovative and inventive refugee protection proscenium to respond to grisly human migration in all continents and countries. But it must not be devoid of the principles of Global Human Rights Constitutionalism, and it must discard the discourse of popular nationalism that is anarchist, narcissist, nihilist, and exclusionary in its treatment of RAMS (refugees, asylum-seekers, migrants, stateless). The current Globalized World needs the re-validation and re-assertion of diversity, dignity, multiculturalism and liberal values of the yore. It is an age requiring arrangements for integrating the contesting and opposing interests across the political spectrum in all geopolitical enties. Such measures demand audacious actions, quixotic visions and re-embracing of human rights liberalism beyond the rubrics of UNCSR.

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International Law

UNCTAD Report: Revisiting Old Issues in Managing Cross-Border Data Flows

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Today, information space has become a field of confrontation involving major digital platforms, governments, societies and individual users. Stories featuring latest cyberattacks or state-sponsored attempts to limit the influence of social networks and regulate the digital sphere, where there is no governance at the international level, are those that grab the headlines of many online media outlets.

Given the current climate, it is then no surprise that the United Nations is paying close attention to the issues related to the digital domain. On September 29, United Nations Conference on Trade and Development released its Digital Economy Report 2021, which focuses on the issue of managing cross-border data flows. The piece is rather comprehensive in terms of the issues covered, seeking to analyze the inhibiting factors that prevent us from working out an exhaustive definition of what “data” is, while exploring the specific approaches of states to regulating cross-border data flows. The report’s authors pay particular attention to the digital divide that has emerged between developed and developing nations. That said, we would argue that the report is more of a descriptive paper rather than a real step towards erecting a system of global governance.

The first section of the report addresses the lack of clarity on the definition of “data”, whether in research or among practitioners. With no unified terminology, communication between stakeholders appears to be complicated, much as the process of designing public policy as regards the digital sphere. A generally accepted and unified terminology would no doubt make it easier to foster closer cooperation, although this is certainly not a defining prerequisite. International efforts to fight against terrorism can be a case in point here, as there is no conventional definition of “terrorism,” while this does not hinder inter-state cooperation, both regionally and globally. While this cooperation may not always proceed smoothly, any problems encountered tend to be the upshot of political squabbles rather than the implications of the fact that no single definition of “terrorism” is to be found.

The UNCTAD report brings up another underlying premise, which is that data should be treated as a global public good. This will allow citizens, acting as “producers” of raw data, to claim the benefits of it being used by digital platforms. This issue has already been discussed at the EU, with the approach tested in a number of cities. Transferring some control over the flow of data from corporations to users is an important step towards ensuring that human rights are upheld in the digital environment.

The UNCTAD report also explores the technological and digital divide, whose dimensions span developed and developing countries as well as urban and rural areas within a particular country. This problem is nothing new: it was only last year when UN Secretary-General António Guterres referred to the need to bridge the gap, arguing that it was instead widening amid the COVID-19 pandemic. At the same time, he proposed a Roadmap for Digital Cooperation.

Besides, the report notes the massive impact of digital platforms. These, the authors believe, “are no longer just digital platforms” but “global digital corporations” that have the necessary capabilities for processing information, which puts them in a privileged position. Further, digital platforms are able to influence policymaking through lobbying their interests. In terms of spending, Facebook and Amazon are the most active lobbyists in the United States, while Google, Facebook and Microsoft are the biggest spenders in Europe. The report suggests that the privileged position of digital corporations—such as their ability to process massive bulks of data and derive profit from raw information—leads to something of an imbalance between the private and the public sectors when it comes to recruiting talent. Accordingly, the gap is widening, which means that the tech giants are moving even further out in front.

Finally, fragmentation of the digital space into competing models of managing cross-border data flows is another challenge to the digital domain and its prospects. Should such fragmentation occur, this may create new obstacles to communication and economic development, as the existing models (those of the U.S., the EU, Russia, China and India) offer different regulatory practices that have their own flaws and inefficiencies. The report identifies the broad shortcomings of these practices, making note of poor coordination between government agencies; ambiguous formulations deliberately used to denote key concepts (such as “critical infrastructure” or “digital sovereignty”); and setting unrealistically high technical requirements, including the requirement to store personal data locally—something that entails greater costs for smaller businesses and is detrimental to end consumers of digital products and services.

The Digital Economy Report implies the solution lies in establishing a new institutional framework to meet the challenge of global governance in the digital domain. This new institution should contain the “appropriate mix of multilateral, multi-stakeholder and multidisciplinary engagement.” At the same time, the report argues for ad hoc interaction between stakeholders given the inherent complexity of the framework. The new organization should become a coordinating body for digital governance with a sound mandate.

Indeed, the main stumbling block for global governance to emerge in the digital sphere has to do with the model of interaction to be chosen. The epitome of the intergovernmental approach is the International Telecommunications Union (ITU), while the Internet Corporation for Assigned Names and Numbers (ICANN) is illustrative of the multi-stakeholder approach.

Since neither is perfect, this naturally leads us to the conclusion that a combined approach is what is needed. This approach can possibly provide states with a much-needed platform for broader involvement in issues of digital governance, while ensuring that non-state actors and expert community retain their positions. The UNCTAD report refers to the United Nations Economic and Social Council (ECOSOC) as a perfect example of such a “hybrid” international organization. At ECOSOC, interaction with NGOs takes place through the Conference of Non-Governmental Organizations in Consultative Relationship with the United Nations. Expert bodies made up of representatives of individual countries as well as of independent experts also operate within the framework of ECOSOC.

Indeed, ECOSOC is a good example of how international institutions can interact with NGOs. However, it will not do to simply copy its mechanism, and it is so for several reasons. First, final recommendations within ECOSOC are adopted by representatives of member states. This harms its usefulness as a model to be replicated, since there will always be the risk that issues are politicized—this will be the case even if the new institution is designed with the combined approach in mind. Besides, should this body take on the role of the principal coordinator in the digital space, issues will become more politicized and disagreements will be more heated, thus slowing down decision-making. Second, the question remains as to how the new institution will interact with the existing organizations, namely the Internet Architecture Board and the Internet Engineering Task Force. The ad hoc mechanism to engage NGOs in other areas, which works perfectly fine for ECOSOC, may not be enough when it comes to technical standards that need to be constantly updated. Third, the General Assembly elects ECOSOC members every three years. However, this would not be feasible for the new coordinating body as the digital domain has its own leaders, and leaving them overboard would be incredibly detrimental to its effectiveness. In such a case, there remains the above-mentioned risk of discussions between the U.S./EU and Russia/China becoming politicized.

Moreover, the choice of decision-making mechanism presents certain difficulties given the dominant position of the four, both on the international stage and in terms of data processing. Operating on the basis of consensus may hinder negotiations or become an instrument to block unwanted decisions, while a simple majority will likely result in these nations establishing ad hoc coalitions to try and swing votes in their favour. Therefore, it seems prudent to design a complex voting mechanism based on qualified majority, possibly drawing on the system used in the Council of the European Union. Still, this mechanism will not rule out struggles unfolding behind the scenes.

Finally, the fact that the two sides have fundamental disagreements as to the concept of sovereignty in the digital space should be accounted for, as this could put an end to the new coordinating institution before it has even been established. The only way to move forward with a truly effective platform for cooperation in the digital space is to temporarily improve, if not to normalize, the relations between the leading states in this area.

No global governance in the digital domain is better than a poorly regulated system spinning its wheels. Our modern world is too dependent on technological advances that ensure that all regions and facets of life are complementary. Any failure of the mechanism can be extremely costly. However, increasing fragmentation of the digital space may be even more costly—for developing and developed countries alike. One possible way forward amid the international environment mired in uncertainty is to search for common ground on the most basic of issues. While the differences in national regulations persist, there are a number of issues that are common to all: these include cyberterrorism, cybercrime, illegal access to data or threats to critical infrastructure.

Multilateral agreements that do not address the fundamental differences in the stances taken by states may lay the foundation for global governance to emerge in the future. It is in this context that the joint U.S.–Russia draft resolution on the responsible behaviour of states in cyberspace, if legally unbinding, bears utter significance for cooperation between nations who espouse two different models as well as for overcoming the negative background of broader political disagreements.

From our partner RIAC

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