Innocent Packets? Applying navigational regimes from the Law of the Sea Convention by analogy to the realm of cyberspace
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A sound policy that balances international freedoms in Cyberspace with legitimate concerns about national security may be achieved by applying the navigational regimes of the UNCLOS III to the medium of Cyberspace. Fairly applied, such global Cyberspace policies could, borrowing from the language of the Convention,
- be an important contribution to the maintenance of peace, justice, and progress;
- resolve problems of Cyberspace;
- provide due regard for the sovereignty of all States;
- facilitate international communication;
- promote peaceful uses of Cyberspace and the equitable and efficient
- utilization of its resources;
- aid the study, protection, and preservation of the Cyberspace environment;
- contribute to the realization of a just and equitable economic order which takes into account the interests and needs of mankind as a whole and, in particular, the special interests and needs of developing countries;
- establish international Cyberspace as beyond the limits of national jurisdiction, as a common heritage of mankind, the exploration and exploitation of which shall be carried out for the benefit of mankind as a whole irrespective of the geographical location of States.
From the foregoing it is suggested that if the underlying purposes of the UNCLOS III were applied to the Cyberspace medium, it would have a desirable effect on international development of Cyberspace. A test of the usefulness of this analogy in preserving national sovereignty is how well two important access rights under the UNCLOS III, "innocent passage"4 and "transit passage,"5
might be applied to military operations in Cyberspace.
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When navigating Cyberspace international straits, users behave much like ships and aircraft engaged in transit passage: they proceed without delay, in the normal mode of continuous and expeditious transit, and refrain from any threat or use of force against the national Cyberspace through which their communication is routed. The nature of telecommunications means Cyber Forces transit Cyberspace almost instantaneously and without delay except as limited by system bandwidth during periods of peak demand. The high speed of transmission is valuable to the commander as well as the State through which the Cyber Force is transmitted. The combination of speed and volume of Internet traffic means most States have limited capability to intercept and monitor Cyberspace communications. This limited ability to intercept and monitor traffic through Cyberspace is important to maintaining the neutrality of states that are mere intermediaries in information warfare, as in our opening scenario, because the transited State is unlikely to be aware of the transmission.
In summary, transit passage provides the commander two major advantages over innocent passage: forces may transit in their normal mode of operation42 and bordering States may not suspend the right of transit passage through international straits. When applied to Cyberspace the proscription against suspending transit passage is a strong argument for applying the UNCLOS III by analogy to Cyberspace. While governments, corporations and private organizations may choose to suspend access to their internal Cyberspace for various reasons, as global economies become more dependent on the international telecommunications infrastructure it is unlikely that States could or would entirely close national Cyberspace. Even if a State tried to close national Cyberspace it would have little effect on the ability to transfer CNA packets through international Cyberspace because if intermediate routers are not available the packet will be automatically rerouted. Finally, if a belligerent State, like State A in the opening scenario, were to specifically route a CNA through the Cyberspace of a neutral intermediate state that act alone would be insufficient to violate the neutrality of the transited State if the Cyberspace transit passage analogy is used.