scholarly journals Microsoft Corp. v. United States and the ‘Hot Pursuit’: A Case Study Against the Application of the Law of the Sea into the Cyberspace

2021 ◽  
Vol 81 (3) ◽  
pp. 755-780
Author(s):  
Patricia A. Vargas-León
Keyword(s):  
United States ◽  
International Law ◽  
Law Of The Sea ◽  
The Internet ◽  
Internet Infrastructure ◽  
Nation States ◽  
Stakeholder Model ◽  
The Law ◽  
Multi Stakeholder

In today's world, no treaty regulates the cyberspace or the Internet. To some extent, the multi-stakeholder model has successfully kept the Internet free of a unique point of control, yet some nation-states advocate for a government-based-model. Amid the Internet Corporation for Assigned Names and Numbers (ICANN) transition debate, some governments favoured a cyberspace regulation in the hands of an inter-governmental organisation. Additionally, western democracies have advocated to declare the cyberspace a fifth domain. Reasons for these different perceptions are related to the different conceptions nation-states have what should be the governance model for a resource beyond their traditional borders. Considering this dichotomy, this paper analyses the negative implications of applying the law of the sea into cyberspace. For this purpose, this paper will explore the concept of the 'right of hot pursuit', one of the provisions of the United Nations Convention on the Law of the Sea (UNCLOS). The research methodology includes as a case-study Microsoft Corp. v. United States also known as the 'Microsoft Ireland' case. This case was selected because it exemplified how government administrations attempt to use the principles of international law to protect their sovereignty over the Internet infrastructure located in their territory, even when the access to that infrastructure is 'virtual' and there is no need to access such infrastructure physically. Facing this scenario, where governments try to exercise their sovereignty beyond their territorial borders, this paper will: 1. Provide an overview of the International Court of Justice (ICJ) and the International Tribunal for the Law of the Sea (ITLOS) interpretations of the hot pursuit to determine the international legal conception over this principle. 2. Analyse the arguments of the parties involved in the Microsoft Ireland case about why one nation-state's sovereignty should be applied or not beyond the borders of its territory. 3. Analyse the negative repercussions of including the hot pursuit and the fictional fragmentation of the ocean into the cyberspace. Findings expect to enrich the discussion within the Internet governance debate and understand the consequences of (1) applying the international law over the Internet infrastructure and (2) clarify the traditional legal approach that spaces without nation-states' sovereignty should not exist.

The Law of the Sea and the Internet: A Resource Guide with Special Reference to the Conservation and Management of Marine Living Resources

2000 ◽  
Vol 15 (4) ◽  
pp. 567-579 ◽  
Author(s):  
Chris Hedley
Keyword(s):  
Special Reference ◽  
International Law ◽  
Law Students ◽  
Law Of The Sea ◽  
The Internet ◽  
Resource Guide ◽  
Important Resource ◽  
The Law ◽  
Conservation And Management ◽  
International Fisheries

AbstractThis article provides a brief overview of the mountain of information now available on the Internet relating to the international law of the sea and, in particular, in the field of international fisheries, for which there is an enormous volume of information. The Internet is becoming an increasingly important resource for lawyers and law students, but finding the information you want remains difficult. This guide first explains a few Internet basics and then highlights some of the more useful and interesting sites available and directs the reader to locations where further information may be found.

The Freedom to Use the High Seas to Protect and Preserve the Marine Environment: Case Study of the Activities of The Ocean Cleanup

2021 ◽  
pp. 1-11
Author(s):  
Talitha Ramphal
Keyword(s):  
United Nations ◽  
International Law ◽  
Marine Environment ◽  
Marine Debris ◽  
Law Of The Sea ◽  
United Nations Convention ◽  
The United Nations ◽  
The Law ◽  
High Seas

Abstract Activities to tackle marine debris are conducted on the high seas by The Ocean Cleanup. The high seas are open to all States and may be used as long this is consistent with the United Nations Convention on the Law of the Sea (LOSC) and other rules of international law. This article argues that the LOSC provides for the freedom to use the high seas to protect and preserve the marine environment, including tackling marine debris, when interpreting Article 87 of the LOSC in light of present day needs.

The Fishermen's Protective Act: A Case Study in Contemporary Legal Strategy of the United States

1975 ◽  
Vol 69 (2) ◽  
pp. 290-309 ◽  
Author(s):  
Theodor Meron
Keyword(s):  
United States ◽  
Foreign Relations ◽  
The United States ◽  
Law Of The Sea ◽  
Legal Strategy ◽  
The Law

The object of this article is to examine and evaluate the Fishermen's Protective Act, as reflecting the legal strategy of the United States in one particular area of its foreign relations law of importance to both the law of the sea and the law of international claims.

Statement by Expert Panel: U.S. Policy on the Settlement of Disputes in the Law of the Sea

1987 ◽  
Vol 81 (2) ◽  
pp. 438-442 ◽  
Author(s):  
Keyword(s):  
United States ◽  
International Law ◽  
Expert Panel ◽  
The United States ◽  
Law Of The Sea ◽  
Customary International Law ◽  
The Law ◽  
Deep Seabed Mining ◽  
Settlement Of Disputes ◽  
Seabed Mining

In 1983, President Reagan announced the policy of the United States to accept the normative provisions of the 1982 Convention on the Law of the Sea as reflecting the customary international law of the sea (in matters other than deep seabed mining).

Arigo and Others v. Swift and Others

2021 ◽  
Vol 195 ◽  
pp. 295-373
Keyword(s):  
United States ◽  
United Nations ◽  
International Law ◽  
Marine Environment ◽  
Law Of The Sea ◽  
Environmental Damage ◽  
Restricted Area ◽  
Customary International Law ◽  
United Nations Convention ◽  
The Law

295State immunity — United Nations Convention on the Law of the Sea, 1982 — Articles 30, 31 and 32 — Rules applicable to warships — Non-compliance by warships with laws and regulations of coastal State — United States vessel entering restricted area of Philippine waters — Responsibility of flag State for damage caused by warship — Immunities of warships — Philippines–United States of America Visiting Forces Agreement, 1998 — Whether any waiver of immunity — Role of executiveSea — Treaties — United Nations Convention on the Law of the Sea — Convention not ratified by United States — Customary international law — Coastal State rights — Marine environment — Whether relevant provisions of treaty codifying customary international law — Whether United States responsible for environmental damage — Whether United States immune from suitJurisdiction — United States vessel entering restricted area of Philippine waters — Whether act jure imperii — Environmental damage — Whether United States having immunity — Whether Philippines barred from exercising jurisdiction over United States respondents — Article XVI of Philippines Constitution, 1987Environment — Marine environment — Right to a healthful ecology — Intergenerational responsibility — Writ of Kalikasan — The law of the Philippines

The International Law Commission Tomorrow: Improving its Organization and Methods of Work

1991 ◽  
Vol 85 (4) ◽  
pp. 595-612 ◽  
Author(s):  
B. Graefrath
Keyword(s):  
International Relations ◽  
International Law ◽  
Term Effect ◽  
Law Of The Sea ◽  
Long Term Effect ◽  
The Law ◽  
International Law Commission ◽  
Law Commission

The history, operation and tasks of the International Law Commission (ILC) have often been described and its success in codifying general international law is well-known and widely acknowledged. The conduct of international relations today is unthinkable without such basic instruments, first drafted by the Commission, as the conventions on diplomatic and consular relations, the law of treaties and the law of the sea. Moreover, other ILC drafts that have not been adopted as treaties have had a long-term effect on the development of international law; for example, the Draft Declaration on the Rights and Duties of States, the Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, and the Model Rules on Arbitral Procedure.

Normative propositions of the International Tribunal for the Law of the Sea

2021 ◽  
Vol 11 (3) ◽  
pp. 3-18
Author(s):  
Roman Kolodkin
Keyword(s):  
International Law ◽  
Legal Reasoning ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Legal Norms ◽  
Judicial Decisions ◽  
The Law ◽  
Obiter Dictum ◽  
International Law Commission ◽  
Advisory Opinions

Normative propositions of the international courts, including these of the International Tribunal for the Law of the Sea, are considered in the paper as provisions in the judicial decisions and advisory opinions, spelling out, formulating or describing international law norms, prescriptions, prohibitions or authorizations, which are applicable, in the court’s view, in the case at hand and the similar cases. Such a proposition is considered to be a description of a legal norm, its spelling out by a court, but not a norm or its source. In contrast with legal norms, judicial normative propositions are descriptive, not prescriptive; they may be true or wrong. Normative propositions are not transformed into norms solely by their repetition in judicial decisions. The author considers not only ITLOS decisions but also the Tribunal’s and its Seabed disputes chamber advisory opinions containing normative propositions to be subsidiary means for the determination of the rules of law under article 38(1(d)) of the International Court of Justice Statute. The legal reasoning of the Tribunal’s decision, not its operative provisions, usually features normative propositions. While strictly speaking, the decision addresses the parties of the dispute, normative propositions in the reasoning are in fact enacted by the Tribunal urbi et orbi aiming at all relevant actors, ITLOS including. They bear upon substantive and procedural issues, rights and obligations of relevant actors; they may also define legal notions. The Tribunal provides them as part of its reasoning or as obiter dictum. It is those provisions of the Tribunal’s decisions that are of particular importance for international law through detailing treaty- and verbalizing customary rules. However, the States that have the final and decisive say confirming or non-confirming the content and binding nature of the rules spelt out or described by the Tribunal in its normative propositions. Meanwhile, States are not in a hurry to publicly react to the judicial normative propositions, particularly to those of ITLOS, though they refer to them in pleadings or when commenting on the International Law Commission drafts. At times, States concerned argue that international judicial decisions are not binding for third parties. While the States are predominantly silent, ITLOS reiterates, develops and consolidates normative propositions, and they begin to be perceived as law. The paper also points to the possibility of the Tribunal’s normative propositions being not correct and to the role of the judges’ dissenting and separate opinions in identifying such propositions.

The South China Sea

Asian Survey ◽  
2015 ◽  
Vol 55 (3) ◽  
pp. 455-477 ◽  
Author(s):  
Stein Tønnesson
Keyword(s):  
South China Sea ◽  
International Law ◽  
South China ◽  
Use Of Force ◽  
The South China Sea ◽  
Law Of The Sea ◽  
The South ◽  
Government Behavior ◽  
China Sea ◽  
The Law

The article looks at three ways in which international law has affected government behavior in the South China Sea. It has exacerbated disputes. It has probably curtailed the use of force. And it has made it difficult to imagine solutions that violate the law of the sea.

scholarly journals Theoretical and Practical Significance of the Issue of Maritime Delimitation in the Law of the Sea

2017 ◽  
Vol 6 (2) ◽  
pp. 125-129 ◽  
Author(s):  
Bojana Lakićević-Đuranović
Keyword(s):  
International Law ◽  
Practical Significance ◽  
Law Of The Sea ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Creation ◽  
The Law

This paper aims to show the significance of maritime delimitation in the Law of the Sea, as well as the contribution of international jurisprudence to the creation of the rules of maritime delimitation. The decisions of the International Court of Justice (ICJ) and the awards of arbitration tribunals are especially significant in the part of the Law of the Sea dealing with maritime delimitation. Based on the analysis of the principle of equity and the method of equidistance, the jurisprudence of the courts is shown to have established precedents and to have an irreplaceable role in the development of the international Law of the Sea, particularly in the segment of maritime delimitations.

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