A Practical Guide to Applying the Law of the Sea into the Internet: Where the Internet Root Zone and the High Seas Find Each Other

In today’s world there is no treaty that regulates the Internet. Although the multi-stakeholder model has been successful in keeping the Internet free of one stakeholder group’s dominance, there are still nation-states who advocate for a government-based-model (Moyer, 2016; Schaller, 2014). There are various reasons for championing a treaty based Internet governance model. Some nation-states intend to assert sovereignty over the Internet and some do not want the laws of one nation apply to what they assume to be their Internet territory, for example to their country code top level domain names. Marrying the concept of a multistakeholder governance system with sovereigntists’ ideas is not our intention. However, looking at possible international laws that can be applied to the Internet governance has been the focus of scholars and professionals work. Being this the case, in this paper we will explore whether or how international laws can be applicable over the Internet infrastructure considering the multi stakeholder dimension of its governance. Our focus is mainly on the comparison of the Law of the Sea and the governance of the Internet. Some scholars argue that the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) can be used as a model law to have an international agreement between nation-states on how to govern the Internet (Barcomb, 2013; Kalpokienė & Kalpokas, 2012; Schmidt, 2017; Steven, 2001). This potential comparison between the sea and the Internet comes from the fact that, in the past, the sea was considered a space beyond nation-states’ national jurisdictions constantly subject to sovereignty claims, a space for war, communications and economic production, pretty much as the Internet is today. Nevertheless although this “comparison” exists, and academics provided the rationale as to why it is appropriate to look at the law of the sea for governing the Internet, they did not discuss how or why it might happen in practical legal terms. Moreover, such studies did not substantiate on how the application of UNCLOS’ provisions, in its very technical term, can be made possible and what its legal implications are. Recently, there have been some attempts to customize the law of the sea to be applicable to certain aspects of the governance of the Internet, such as the root zone, and not to all aspects of Internet governance (Kurbalija, 2011). While we value such approach, we argue that it is time to analyze the argument that UNCLOS provisions can inspire a governance model, applicable at least to some aspects of the Internet governance (namely to the root zone), while upholding the multi stakeholder governance of the Internet. With this purpose in mind, our aim in this paper is to illustrate what the consequences are of applying international practices and UNCLOS provisions from the “high seas,” into a very narrow but crucial function of the Internet called the “root zone”. The root zone is a file that contains the names and the numeric Internet Protocol (IP) addresses for all the Top Level Domains (TLDs), including the Generic Top Level Domains (gTLDs), like .COM, .NET or .ORG and, all the Country Code Top Level Domains (ccTLDs) such as .PE (country code for Peru) (Clark, Berson, & Lin, 2014; Mueller, 2002). According to the contract signed between Verisign and the Internet Corporation for Assigned Names and Numbers (ICANN), Verisign is in charge of managing the root zone. Any change to the root zone has to be approved by ICANN and Internet Assigned Numbers Authority (IANA). Currently no international principles apply to the root zone. On the other hand, “high seas” is the name for a maritime space recognized by nearly 2000 years of nation-state practices. The high seas, as UNCLOS establishes, start beyond 200 nautical miles from shore and is open and free to everyone. It is a space governed by the principle of equal rights for all because the resources within the high seas belong to the human kind, and not to a specific nation-state. When ratifying UNCLOS, all members acknowledge that: 1) no nation-state can act or interfere with justified and equal interests of the rest of the human kind, 2) there is freedom of navigation for all nation-states, and 3) maritime security activities can be considered part of navigational activities as they protect vessels from interference by third parties (Messeguer Sanchez, 1999; Williams, 2017). Root zone and high seas have many identifiable similarities. As we will argue in this paper, they are both global shared resources that can be subject to the conflict over assertion of sovereignty by states or they can be used or abused by states or private parties. There are also similarities between the Internet zone (where the individual top level domains are being operated) and the space known as “territorial sea,” a space where coastal nation-states can apply their national laws as if it was part of their own territory. For example, as each nation-state can operate its own ccTLD the way it desires and according to its national laws, each nation-state may decide to forbid the passage of other nation-states vessels within its territorial sea. Considering the similarities and differences of the root zone and high seas, this paper addresses the following questions: in a hypothetical world, 1) what are the legal implications of applying UNCLOS provisions similar to that of UNCLOS on the high seas into the root zone? 2) what are the benefits of applying UNCLOS provisions on the high seas into the root zone? 3) How would the high seas provisions be applicable into the root zone? Finally, we want to clarify that this paper does not advocate for a governance model for the root zone based on the high seas provisions. Findings expect to clarify the diverse opinions this matter has generated in the academic literature, and provide a practical view of if such comparison is even viable and if it is viable, how should Internet governance learn from such international laws.