Human rights in cyberspace

Human rights in

cyberspaceKritika Singh chauhan

[Amity law school ,Delhi(ip university)]

Email address: [email protected]

Human rights in cyberspace

Abstract

"All I can say right now is the US government is not going to be

able to cover this up by jailing or murdering me. Truth is

coming, and it cannot be stopped.” statement by Edward snowden in

los angles times, June 2013 .Last year revelations about the

surveillance programs of U.S by snowden shocked the world and

stirred our minds with the question ,how safe are we? It’s not

only a question to our privacy but to our human rights in

cyberspace .Following to the revelation and consequent reaction

of all the states it is quite disturbing to see that we are

subjected to the subordination of state surveillance which goes

to the extent of infringing our basic human rights of privacy and

freedom of expression, for which we have struggled a long way.

Modern surveillance technologies and arrangements that enable

States to intrude into an individual’s private life threaten to

blur the divide between the private and the public spheres. They

facilitate invasive and arbitrary monitoring of individuals, who

may not be able to even know that they have been subjected to

such surveillance. It was only in 2011, UN rapporteur Frank La


Rue presented the report concerning to the increased surveillance

as a threat to human rights in cyberspace. This unsettled concept

of human rights oppresses netizens. This paper discusses the

scope of human rights in cyberspace since we have rights offline

but we are still faraway to justify them in cyberspace.

This paper discusses the following issues, first how the basic

human rights realized in cyberspace? And the interrelation and

limitation to privacy and freedom of expression based on the OECD

principles. Second it discusses the international human rights

regime and third it endeavors into the concept of universality

vis-a-vis the concept of borders and territorial sovereignty in

cyberspace.

Author: kritika Singh chauhan ,a student of BALLB(H)-1styear,

Amity law school Delhi.

INTRODUCTION

As we move forward on the ladder of development we are each time

discover a new dimension. A new world where sometimes our

traditional laws fails to provide answers to all questions. Today

what challenges our laws and existing fundamental rights is the


new identity of a person in cyberspace. As a result of

information and computing technology, it is possible to plug

oneself into an alternative reality to have fun and meet others

without actually being physically present. Virtual worlds are

rapidly becoming the matrix of human life but at the same time

they offer an ideal surface for committing different kind of

violations to our liberty and dignity. It is absolutely essential

to theoretically analyze the reach of human rights protection in

cyberspace, especially in the context of virtual worlds.1 This

paper basically gives theoretical insight into the humanitarian

law and how various general human rights theories can be used to

realize the existing rights in cyberspace.

Cyberspace

Cyberspace is a part of a greater reality than we already knows,

it is beyond our physical borders and our physical

environment.2cyberspace is understood as a global, non‐physical,

conceptual space, which includes physical and technical

components, i.e., the internet, the ‘global public memory’

contained on publicly accessible websites, as well as all

entities and individuals connected to the internet. Cyberspace

1 Pekka Kijanen, ‘New Generation for Human Rights in Cyberspace’(2008)(1)< humanrights.ee/wp-content/uploads/2012/01/Kijanen_research.pdf >ascessed on 27may20142 Michael Froomkin ,’toward a critical theory of cyberspace’(2003)(116)HLR< http://personal.law.miami.edu/~froomkin/discourse/ils.pdf> accessed on 17 February 2014

http://personal.law.miami.edu/~froomkin/discourse/ils.pdf


has political, economic, social and cultural aspects going far

beyond the notion of a pure means of information transfer.3

Different positions in cyberspace

The growing conflict in cyberspace due to absence of national

territory in cyberspace which makes governance more difficult and

thus has given rise to many different views regarding the rules

that should govern cyberspace.

Cyber-libertarian view

There are visionaries such as John Perry Barlow who holds view

that cyberspace is a totally new and alien territory where

conventional rules do not apply and so there should be no

governance. But this view has its own implication and a seed of

destruction in itself since, if more people are likely to use

cyberspace then this would give rise to public and private policy

making since there can be case of cybercrimes affecting public at

large.

Strict regime view

Another strata in the cyberspace is of those people who want

strict regime for activities in cyberspace. They want to control

pornographers ,neo Nazis ,copyright pirates or anybody who holds

politically subversive aspirations.

Self regulation view 3 Dr Katharina Ziolkowski,’Confidence Building Measures for Cyberspace – LegalImplications’(2013)CCDOE< www.ccdcoe.org/docs/CBMs.pdf> accessed on 17 February

http://www.ccdcoe.org/docs/CBMs.pdf


Then there are cyberspace citizens who feel that they can best

police themselves and who discuss among themselves a variety of

forms of self regulation ranging from Parent Control software to

Cyber Angels, Codes of Conduct and Netiquette.

The specific question of concern here is, whether the current

international human rights regime can provide us with meaningful

moral and legal guidance for the solution of conflict in laws in

cyberspace.

1. HOW THE BASIC HUMAN RIGHTS REALIZED IN CYBERSPACE?

Human rights are rights inherent to all human beings whatever our

nationality, place of residence, sex, national or ethnic origin,

color, religion, language or any other status; we are all equally

entitled to our human rights without discrimination .

The former Oxford Professor of Moral Philosophy James Griffin

defines human rights as those aspects of our lives that are

critical to our capacity to choose and to pursue our conception

of a worthwhile life.4 These aspects can be expressed in terms of

a certain set of capabilities granted to the individual by

society as a matter of justice. Amyarta Sen 5and Martha

Nussbaum6 have pursued this idea in terms of what they call "the

capabilities approach" to social justice.

4 Griffin, J. On Human Rights. Oxford University Press, 2008.5 Sen, A.K., Ed. ‘Commodities and Capabilities. Oxford University Press’(1985)6 Nussbaum, M.C. Frontiers of Justice: Disability, Nationality, and Species Membership. Belknap, Harvard, 2006.


Relevance of human rights in cyberspace

The first issue that emerges concern, is the observation that

the human rights regime is firmly embedded in modernist,

Enlightenment thought that seems to collide with the view that

cyberspace is "a manifestation of the postmodern world"7 . Human

rights is a concept embedded in modern world and cyberspace is a

concept of post modern world and this is the most cited theory

that many critics give for cyberspace and its distant connection

with human rights .

Characteristic of the modern world are the physical categories,

such as location, gender, ethnicity, appearance, from which

cyberspace seems to liberate us.but even though human right

regime is a concept of modern world but still these human rights

can be realized in the cyberspace and this can be proved by

various theories given below :

Change and modernization theory

In order to conceptualize human rights in cyberspace we need to

see the larger change that has occurred in the society so that

human rights can be realized to protect the rights of the cyber

citizens.

1. Change theory

Rick davies , a well known evaluation specialist , defines a

theory of change simply as , “the description of a sequence of

7Brian D. Loader. ,‘the governance of cyberspace: politics, technology andglobal restructuring’(1997)HLJT(11)(2)<http://jolt.law.harvard.edu/articles/pdf/v11/11HarvJLTech535.pdf> accessed on17february 2014

http://jolt.law.harvard.edu/articles/pdf/v11/11HarvJLTech535.pdf


events that is expected to lead to particular desired

outcome.”8patricia rogers , another well known evaluation expert

defines it , that , “every programme is packed with beliefs,

assumptions and hypothesis about how change happens- about the

way human work ,or organizations ,or political systems ,or eco-

systems.theory of change is about articulating these many

underlying assumptions about how change will happen in a

programme.

Change theory basically gives us the changing pattern in the

society and we articulate these assumptions and see for a major

change ,say the increased number of internet users indicate that

we are likely to come to a positive state of that program and in

order to increase the positive effect we need to safeguard the

basic human rights so that this positive aspect could increase .

2. Modernization theory

The principal assumptions of modernization theory as understood

are firstly that modernization is a total social process

associated with (or subsuming)economic development in terms of

preconditions, concomitants, and consequences of the latter;

second that this process constitutes a “universal

pattern”.9stephenson defines modernization as ‘the concept which

is related to the transformation of culture and personality in so

far as it is influenced by culture , rather than of some aspect8 Rick Davies, April 2012: Blog post on the criteria for assessing the evaluability of a theory of change<http://mandenews.blogspot.co.uk/2012/04/criteria-for-assessing-evaluablity-of.html>asccesed on 17 february 2014.9 Daniel lerner,1967,’comparitive analysis of processes of modernization ‘91967) Horace miner (ed.)pp 21

http://mandenews.blogspot.co.uk/2012/04/criteria-for-assessing-evaluablity-of.html

http://mandenews.blogspot.co.uk/2012/04/criteria-for-assessing-evaluablity-of.html


of social organization or of human ecology’.10 now since for the

overall development the society requires to develop its basic

aspects i.e., technology, communication, literacy,

entrepreneurship and since internet in today’s world forms the

base for all these activities it is need of today to have full

access to internet in order to modernize and so we require to

safeguard our basic human rights so to ensure such development.

Baudrillard post modernity concept

Baudrillard intrudes into the concept of internet and virtualty,

In order to realize the concept of internet in post modern

world .Internet both as a technological artifact and as a popular

image, provides a site for exploring “the world”, and the

position of such systems of totality in postmodernity.perhaps

more so than any other contemporary theorist, baudrillard

provides a provocative heading for” navigating “this hyper real

terrain. Although he has not addressed worldwide networking and

internet in the specific in his writing, his comments on

telemetric, along with his more general critiques of modernity,

provide an interesting means for exploring the metaphrocity of

internet. Of particular interest in this baudrillardian

theoretical insight are the geographical metaphors for internet-

the topological framework beneath the “information superhighway”

10john b. stephenson,1968,'is everyone going modern ? a critique and a suggestion for measuring modernization ,american journal of sociology vol.74,no.3


that allows for travel, distance, and speed in a metaphorical

world. “cyberspace” no longer strictly refers to the fictional

“matrix” in William Gibson novel,neuromancer;11it. has now

entered into common speech on and off the ‘net as a shorthand for

this conception of computer networks as a cybernetic space from

baudrillaedian perspective, this figuration of internet as a kind

of cybernetic terrain works to undermine the symbolic distance

between metaphoric and the real .This basically suggests, how

baudrillard’s theory can be used to dissuade internet beyond its

modern closures. Replacing the one world with possible worlds,

internet ultimately offers both the seductions of a postmodern

world.

Conventional human rights discourse in cyberspace

It seems however necessary to expand the discussion with a

conceptual critique of the conventional human rights discourse.

The real significance of human rights standards can only be

uncovered if a number of theoretical inadequacies are addressed

and remedied. Conventional theories on human rights imply

limitations to the understanding of human rights that erode the

effective implementation of the very basic claims they enunciate.

These theories are characterized by their exclusive emphasis on

individual rights; their limited interpretation of the concept

11 Baudrillard in cyberspace:internet,virtuality, and post modernity ;mark nunes,dekalb college,1995(originally published in style 29(1995):314-327


‘freedom’; their limited understanding of the concept ‘equality’;

their limited scope for ‘horizontal effect’; and their lack of

institutional consideration.

Collective claims.

Human rights in cyberspace should not only be articulated as

individual rights, but should be recognized both as individual

and as collective rights. Since in the discussion on the locus

of human rights the individual and the community cannot be

separated. Individuals do not exist in isolation and are members

of communities. Communities do not exist outside the individuals

that make up the collective. Sanders concludes that "individual

rights and collective rights are distinct ideas, they are

separate categories. Some individual rights can be vindicated

without reference to collective rights...But other basic rights -

such as freedom of religion-cannot be effectively vindicated

without the recognition of collective rights".12 To put human

rights exclusively in either category limits unduly the rights of

individuals as members of a community or the rights of the

collectivity. Collective claims to cyberspace communications

require provisions on the access to public communication on

behalf of social groups. This is particularly important as so

many social groups, eg women, ethnic minorities, or poor

communities tend to be excluded from cyberspace communications.In

addition to this right of access for communities, collective

12 Sanders, D. ‘Collective Rights’, (1991)Human Rights Quarterly, 13: 368-386


claims also include the right to development, and the recognition

of communal knowledge resources. Collective claims also imply

provisions on cultural identity, on the recognition of cultural

diversity and linguistic variety, or on the cultural autonomy of

communities.

Liberty

The basic assumption related to liberty in conventional human

right discourse is that freedom of information is the freedom of

expression guaranteed against the interference of state. Which is

a negative freedom whereas if we consider the case of

cyberspace it is more inclined towards the positive aspect of

freedom according to this there should be complete development of

an individual that implies the entitlement to socio-economic

conditions that support the development of "information-capital".

Which is possible when there is complete freedom as regards the

freedom of expression which is defined to include the overall

development.

Security

There are social risks related to cyberspace-technology. These

include nuclear warfare triggered off by computer malfunctioning,

large-scale financial frauds, technological addiction, and

aviation diasters. Intentional harm is easily inflicted in

cyberspace. Computer networks enable people to communicate in

anonymity. Anonymity brings out the worst in people. Under the


cloak of anonymity people engage in harmful acts against others

through abuse and deceit. Apparently, anonymity creates a ‘moral

distance’ to the victim which makes it easier to commit harmful

acts. The Information Superhighway creates enormously attractive

opportunities for ‘digital crooks’ and ‘cybersnoopers’. Such

crimes and misdemeanours which range from copyright infringements

to electronic surveillance pose serious threats to people’s moral

and physical integrity.Cyberspace-related social risks to human

security are also induced by the increasing dependence upon

vulnerable and error-prone digital systems. A risk factor is also

the cybernisation of daily life which reinforces current trends

towards high-speed, robot-centric societies.13

In order to protect netizens from such cyber insecurity and risks

,there is a requirement for safeguarding their rights in

cyberspace which can be best defined under human rights because

of its universal character .if we read article 3("Everyone has

the right to life, liberty and security of person") of universal

declaration of human rights in context of article 5 and 9 which

protect people’s moral and physical integrity against

interference from state and non-state actors. This implies

protection against torture, cruel inhuman and degrading treatment

and against arbitrary treatment in the form of arrest, detention

or exile on grounds not established by law.The International

13 CeesHamelink, ‘Human Rights in Cyberspace’(1989)UN Chronicle p-22


Covenant on Civil and Political Rights provides for a similar

protection of personal security in Article 914. In the

International Covenant on Social and Economic Rights (Article 9)

security is broadened to social security, inclusive of social

security. Now since social security and physical integrity is

much a concept being realized in cyberspace too So these human

rights can be implemented into cyberspace .

Horizontal effect

Human rights should have horizontal effect. They should not only

apply to state-citizen, but also to citizen-citizen relationships

In the case of information provision there should be protection

against information oligopolies organized by fellow-citizens.

This so called "Drittwirkung" or third party effect of human

rights means, for example, that information rights of people

should be free from interference by public as well as by private

parties15. Already in the discussions leading to the human rights

Covenants it was proposed that interference by private parties

should be barred. The proposal did not acquire the status of

legal provision. "An individual has the right to freedom of

opinion without interference by private parties as well, and the

14 International Covenant on Civil and Political RightsAdopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49

15 Eric Eng, ‘Third Party Effect of Fundamental Rights (Drittwirkung)’ (2009)hanse law review< http://www.hanselawreview.org/pdf8/Vol5No2Art02.pdf> accessed on 17 february 2014

http://www.hanselawreview.org/pdf8/Vol5No2Art02.pdf


state is obliged to ensure that freedom....It is doubtful,

however, whether the complex problem of protecting a person’s

opinion against interferences by other individuals can be solved

in this global and absolute manner"16 .The right to freedom of

expression goes beyond this negative freedom from interference,

however, and includes the recognition of positive free speech

rights.If the freedom of expression is interpreted in more than

the classical negative sense, the positive interpretation makes

it necessary to define this right not merely as a liberty but as

a claim-right. A positive freedom to communicate implies the

claim-right to express opinions and the related entitlement to

facilities for the exercise of this right. The recognition of

freedom of expression as positive claim-right is particularly

important in situations where the voices of some people are

systematically excluded. In such situations the mere freedom from

interference does not enable people to participate in public

communication 17

It is becoming increasingly clear that cyberspace needs defense

against attempts to impose censorship. This defense should not

only be directed against governmental actors. Informational self-

determination (encompassing free speech, freedom to receive and

16Partsch. K.J. Freedom of Conscience and Expression, and Political Freedoms,(1981). Henkin. L. (ed.), The International Bill of Rights. New York:Columbia University Press. pp. 209-245.

17 Barendt, E. ‘Freedom of Speech’(1985) Oxford: Clarendon Press pp-86


seek information, the right to control person-related

information, the right to confidentiality of communication, and

the right to refuse information) is threatened by the fashionable

Information Superhighway project.

Privacy vs freedom of expression

Interrelation

Freedom is always understood in context of privacy since the

positive interpretation of freedom does not only means non-

interference by state but also the complete social, economical,

intellectual development of an individual without any

interference Undue interference with individuals’ privacy can

both directly and indirectly limit the free development and

exchange of ideas. Restrictions of anonymity in communication,

for example, have an evident chilling effect on victims of all

forms of violence and abuse, who may be reluctant to report for

fear of double victimization. In this regard, article 17 of ICCPR

refers directly to the protection from interference with

“correspondence”, a term that should be interpreted to encompass

all forms of communication, both online and offline.18 the right

to private correspondence gives rise to a comprehensive

obligation of the State to ensure that e-mails and other forms of

online communication are actually delivered to the desired

18 ICCPR commentary, p.401


recipient without the interference or inspection by State organs

or by third parties.19

The Human Rights Committee analyzed the content of the right to

privacy (art. 17) in its General Comment No. 16 (1988), according

to which article 17 aims to protect individuals from any unlawful

and arbitrary interferences with their privacy, family, home, or

correspondence, and national legal frameworks must provide for

the protection of this right. This provision imposes specific

obligations relating to the protection of privacy in

communications, underlining that “correspondence should be

delivered to the addressee without interception and without being

opened or otherwise read. Surveillance, whether electronic or

otherwise, interceptions of telephonic, telegraphic and other

forms of communication, wire-tapping and recording of

conversations, should be prohibited.”20

In its General Comment No. 34 (2011) on the right to freedom of

expression, the Human Rights Committee indicated that States

parties should take account of the extent to which developments

in information and communication technologies have substantially

changed communication practices. The Committee also called on

States parties to take all necessary steps to foster the

independence of these new media. The General Comment also

analyses the relationship between the protection of privacy and19 ICCPR commentary, p.40120 Centre for Civil and Political Rights (CCPR) General Comment No. 16. (General Comments), p.8.


freedom of expression, and recommends that States parties respect

that element of the right of freedom of expression that embraces

the limited journalistic privilege not to disclose information

sources.21

Tensions also exist between the right to privacy and the right

to freedom of expression, for example, when information

considered to be private is disseminated through the media. In

this sense, article 19 (3) provides for restrictions on freedom

of expression and information to protect the rights of others.

However, as it happens for all permissible limitations to the

right to freedom of expression , the principle of proportionality

and the ‘do no harm’ harm principal must be strictly observed,

since there is otherwise danger that freedom of expression would

be undermined. Particularly in the political arena, not every

attack on the good reputation of politicians must be permitted,

since freedom of expression and information would otherwise be

stripped of their crucial importance for the process of forming

political opinions,22 advocating for transparency and combating

corruption The international jurisprudence at regional level

indicates that in situations of conflict between privacy and

freedom of expression, reference should be made to the overall

public interest on the matters reported.23

21 ICCPR General Comment No. 34. 22 Nowak, Manfred, United Nations Covenant on Civil and Political Rights: CCPRCommentary (1993), p.462 23 UNESCO, Global Survey on Internet Privacy and Freedom of Expression, 2012, pp. 53 and 99.


Guiding principles

principal of proportionality

The framework of article 17 of the ICCPR enables necessary,

legitimate and proportionate restrictions to the right to privacy

by means of permissible limitations. In contrast with the

provisions of article 19, paragraph 3, which spell out elements

of a test for permissible limitations,24 the formulation of

article 17 does not contain a limitation clause. Despite these

differences in wording, it is understood that article 17 of the

Covenant should also be interpreted as containing elements of a

permissible limitations test already described in other General

Comments of the Human Rights Committee.

The right to privacy should be subject to the same permissible

limitations test as the right to freedom of movement, as

elucidated in General Comment 27.25 The test as expressed in the

comment includes, inter alia, the following elements:

(a) Any restrictions must be provided by the law ;

(b) The essence of a human right is not subject to restrictions ;

(c) Restrictions must be necessary in a democratic society ;

(d) Any discretion exercised when implementing the restrictions

must not be unfettered ;

24 Lists of permissible limitations are also included in art. 12, (3), on the right to liberty of movement and freedom to choose his residence; art. 18, (3), on the right to freedom of thought, conscience and religion; art. 21, on the right of peaceful assembly; and art. 22, (2), on the right to freedom of association 25 ICCPR General Comment No. 34


(e) For a restriction to be permissible, it is not enough that it

serves one of the enumerated legitimate aims. It must be

necessary for reaching the legitimate aim ;

(f) Restrictive measures must conform to the principle of

proportionality, they must be appropriate to achieve their

protective function, they must be the least intrusive instrument

amongst those which might achieve the desired result, and they

must be proportionate to the interest to be protected.

‘Do no harm’ principle

When we talk in context of freedom and privacy the basic

principle that should be adhered to is the do no harm principle,

this principle defines the limits to one’s freedom and privacy of

other . the simple rule is that one should enjoy one’s freedom

without affecting the rights of others . there is a private

sphere of each individual that defines their private rights .one

should keep this principle in mind while exercising his freedom

rights that they don’t have to interfere or disturb the private

sphere of others. This can both be implemented vertically (state-

citizen) and horizontally(citizen-citizen) relations.

It has also been given in the guidelines of united nations that

UN democracy assistance, while remaining proactive and

innovative, must nevertheless ‘do no harm.’ For example, ill-

timed, and in particular premature elections encouraged by the

international community in fragile societies have sometimes

entrenched undemocratic, nationalist or extremist groups in


power, and radicalized political discourse. Ill-conceived and

poorly conceptualized programmes, and the promotion of

inappropriate foreign models, also have the potential to endanger

democratic transitions and, in some cases, they have even

contributed to enhanced societal violence and conflict.26

OECD principles

The OECD guidelines on the protection of privacy and transborder

flows of personal information were developed way back in 1980 to

help harmonize national privacy legislation and, at the same time

, prevent interruption in international flows of data. these

principles still have much relevance today and can be guides for

the direction that may be taken by states for privacy

protection .the guidelines consists of 8 basic principles:

1. Collection Limitation Principle

There should be limits to the collection of personal data and any

such data should be obtained by lawful and fair means and, where

appropriate, with the knowledge or consent of the data subject.

2. Data Quality Principle

Personal data should be relevant to the purposes for which they

are to be used, and, to the extent necessary for those purposes,

should be accurate, complete and kept up-to-date.

3. Purpose Specification Principle

26 UNGuidance Note of the Secretary-General on Democracy,(2007) General Assembly resolution A/RES/62/7.


The purposes for which personal data are collected should be

specified not later than at the time of data collection and the

subsequent use limited to the fulfillment of those purposes or

such others as are not incompatible with those purposes and as

are specified on each occasion of change of purpose.

4. Use Limitation Principle

Personal data should not be disclosed, made available or

otherwise used for purposes other than those specified except:

a) with the consent of the data subject; or

b) by the authority of law.

5. Security Safeguards Principle

Personal data should be protected by reasonable security

safeguards against such risks as loss or unauthorized access,

destruction, use, modification or disclosure of data.

6. Openness Principle

There should be a general policy of openness about developments,

practices and policies with respect to personal data. Means

should be readily available of establishing the existence and

nature of personal data, and the main purposes of their use, as

well as the identity and usual residence of the data controller.

7. Individual Participation Principle

An individual should have the right:


a) to obtain from a data controller, or otherwise, confirmation

of whether or not the data controller has data relating to him;

b) to have communicated to him, data relating to him within a

reasonable time; at a charge, if any, that is not excessive; in

a reasonable manner; and in a form that is readily intelligible

to him;

c) to be given reasons if a request made under subparagraphs (a)

and (b) is denied, and to be able to challenge such denial; and

d) to challenge data relating to him and, if the challenge is

successful to have the data erased, rectified, completed or

amended.

8. Accountability Principle

A data controller should be accountable for complying with

measures which give effect to the principles stated above.

2.HUMAN RIGHTS CYBER REGIME

Human right cyber regime is a regime that combines both human

rights and cyber regime in one form. This kind of regime contains

both character of international human rights regime and the cyber

regime . in order to understand the human right cyber regime we

need to first contextualize the regime and find its applicability

in cyberspace secondly we need to also look at “multi stake

holder approach” to analyze the theory of human right cyber

regime further ,since this theory contains conflating character


of normative and technical aspect contained in it , which

distinguishes it from other regimes of patterned behavior .

Regime analysis

In order to find a relevant solution for the problem and make the

rules and laws uniform for all nation .we need to understand the

regime theory and its applicability in cyberspace .firstly we

need to define a regime and then its scope of applicability in

cyberspace . Regime analysis is truly part of a long term

research program that analyzes the impact of ideas and material

factors on international cooperation, and their interplay.

Ultimately, regime analysis promises a form of emancipator

politics. By better understanding the specific influences in

world politics, their domains, and their interactions, we can

finally appreciate the full array of forces that shape world

politics.27

Regime theory can be defined by three different perspective,

first perspective defines it as patterned behavior Donald

puchla and Raymond Hopkins argue that a regime exists in every

substantive issue –area in international relations, where there

is regularity in behavior , some kinds of principles norms or

rules must exist to account for it.28But this definition is broad

27 Peter m. has , ‘enduring relevance of international regime’(2013), e-international relation < http://www.e-ir.info/2013/01/22/the-enduring-relevance-of-international-regimes/> accessed on 17 february 2014.

28 Donald puchla and Raymond Hopkins,”international regimes:lessons from inductive analysis, (1982) (36)(2)interenational organization <http://links.jstor.org/sici?sici=0020 -8183%28198221%2936%382%3c245%3AIRLFLA

http://links.jstor.org/sici?sici=0020%20-8183(198221)3682%3C245%3AIRLFLA%3E2.0.CO%3B2-C

http://www.e-ir.info/2013/01/22/the-enduring-relevance-of-international-regimes/

http://www.e-ir.info/2013/01/22/the-enduring-relevance-of-international-regimes/


and runs the risk of conflating regularized patterns of behavior

with rules , and almost certainly overestimates the level of

normative consensus in international politics .29 jerome stephens

and Ernst b.haas has commented that deducing regimes from

patterned behavior makes it difficult to decide how they

mediate , constrain , or influence behavior.the term regime is

sometimes used in apurely descriptive way to group a range of

state behaviors in a particular issue –area , but since the

potential for tautology is high , this approach has largely been

abandoned.30 Another perspective of regime is the explicit and

implicit commitments in regime behavior Krasner defines a regime

as “implicit or explicit principles, norms, rules and decision –

making procedures around which actors’ expectations converge in a

given area of international relations.31but despite the care with

which these norms and principles have been

defined ,”principles”(which include not only beliefs of fact and

causation, but also of rectitude)shade off into norms, “standards

of behavior defined in terms of rights and obligations,norms in

turn are difficult to distinguish from rules,”specific

prescriptions or proscriptions for action.”32

%3E2.0.CO%3B2-C> accessed on 17 february 201429 Friedrich hayek,’ law legislation and liberty’(1973)(1)rules and orders(Chicago:university of Chicago press,1973) pp-78-7930 Ernst b.has, ‘on system and international regimes’(1975)(27)world politics ,pp-147-74; Jerome stephens, ‘an appraisal of some systems approachesin the study of international systems’(1972)(16)international studies quarterly ,pp-76-79 31 Stephen Krasner, ‘structural causes and regimes consequences ;regimes as intervening variables’(1977)international regimes ,pp-1-21.32 Friedrich kratochwil, ‘the force of prescriptions’(1984)(38)international organization,pp-685;john ruggie and Friedrich kratochwil,’international




Third , more restrictive definition treats regime as multilateral

agreements among states which aim to regulate national actions

within an issue area.33regimes define the range of permissible

state action by outlining explicit injunctions. Regimes often

contain rules which govern or specify their own transformation,

but to explain “regime change” per se is to explain why states

would agree to modify the codified rights and rules that regulate

their behavior .this approach risks the change of formalism- a

charge which has plagued the study of international law . on the

other hand, it focuses attention on the evolution of the texts

constituting international agreements ; it also clearly separates

normative consensus from definition of regimes , treating it

rather as a casual or constitutive variable that may be useful in

explaining cooperation.34

Regime: dimension of variance and change

Many studies fail to specify what they mean by regime

transformation or treat it in a uni-dimensional way, regimes may

change over time or vary across cases in at least four

ways :strength, organizational form , scope, and allocation mode.

as cyberspace is a new concept and we know we need variance

from traditional ways to define a perfect human right cyber

organization:a state of the art on the art of the state ‘,(1986)( autumn 40)international organization,pp-753-766.33 Vinod aggarwal,’liberaln protectionism:the international politics of organized textile trade ‘(1985)chp-2,berkeley:university of califonia press)34 Ducan snidal, ‘limits of hegemoric stability theory’ ,(1985)(39)international organization pp-579-614


regime to provide solution to the present problem that is

mushrooming in the virtual world.

a. Strength

The degree of compliance with regime injunction , particularly in

instances where short term or myopic self interests collide with

regime rules is the measure for strength of any regime theory35

since cyberspace is a virtual world and reaches to every

individual and country on the globe this makes participation in

cyberspace much easier and due to presence of different actors in

cyberspace there is greater compliance and hence regime is much

stronger.

b. Organizational Form

There is a need for a structured, potentially autonomous,

organizational structure because complex cooperative task require

such organizational structure moreover, if cooperation is already

highly institutionalized ,theories resting on assumptions of

anarchy are highly misleading ; black boxing organizational

structure and processes will lead to simplistic predictions.36

Especially cyberspace requires such organized form because of its

complexities and absence of territorial borders and undefined

authority , only mutual agreements and deliberations can solve

various cyberspace issue.

35 Stephen Krasner,’structural conflict:the third world against global liberlism’(1985)chp-2(Berkeley :university of California,1985)36 W.richard scott, organizatios:rational, natural and open systems(engelwood cliffs, N.J : PRENTICE HALL,1981)CHP5


Also principle governing representation are another dimension of

organizational variance, many international organization are

structured to give single representation to country members and

many are based on weighted voting system (eg. IMF and WORLD

BANK ) . now especially in cyberspace there needs to be equal

representation to all the actors whether member states or any

private or non –state actor so to establish cyberspace on

democratic lines.

c. Scope

The range of issues that a regime covers is called scope .though

this has attracted really less theoretical attention but its

neglect can cause misleading characterizations. Taking an example

of trade regime where failure to comply to certain GATT (general

agreement on tariffs and trade) provisions signaled a weakening

of trade regime in 1970s . yet at the same time , the regime ‘s

scope expanded through the negotiations of the TOKYO ROUND

CODES .37the most contentious questions on the human right cyber

space agenda concerns the regimes scope –namely , what should be

its composition , how would it issue new issues concerning cyber

crime and human right infringement , international and national

perspective regarding the issue .

d. Allocation mode

37 Stephen Krasner ,’the tokyo round :pluralistic interests and prospects for stability in the global training sysytem’(1979)(23)international studies quaterly ,pp-491-531.


Allocation mode in a regime can be how the rights are distributed

and whether there is implicit or explicit approach in providing

structure of property and use of rights . there are two kinds of

allocation mode , market oriented regime or authoritative mode of

allocation .

A market oriented regime supports the private allocation of

resources , discourages national controls , guarantees property

rights, and facilities private contracting . as Oran young

states, “free enterprise systems are not institutional

arrangements operating outside or in the absence of any regime .

such systems clearly require explicit structures of property or

use of rights”38at another extreme is authoritative allocation

which involves the direct control of resources by regime

authorities and will demand more extensive , and potentially

autonomous , organizational structures. The nature of issue-area

and extent of cooperation sought will partly determine the

preference for market oriented or authoritative modes of

allocation. 39

Multi-stake holder approach

Multi stake holder approach is different from regime approach

since regime approach has character of reciprocity and common

created rules where as in multi- stake holder approach is based

on equal representation of actors and grouping of actor , these38 Oran young,’compliance and public authority’,(1)p-5539 Robert rothstien, ‘regime creation by a coalition of the weak lessons from NIEO and the integrated program for commodities’,(1984)(28)international studies quarterly pp-307-28


can be from public or private sphere ,NGOs and other stake holder

that come for common purpose .

The aim of multi-stakeholder process is to promote better

decision making by ensuring that the views of the main actors

concerned about a particular decision are heard and integrated at

all stages through dialogue and consensus building. The process

takes the view that everyone involved in the process has a valid

view and relevant knowledge and experience to bring to the

decision making. The approach aims to create trust between the

actors and solutions that provide mutual benefits (win-win). The

approach is people-centered and everyone involved takes

responsibility for the outcome. Because of the inclusive and

participatory approaches used, stakeholders have a greater sense

of ownership for decisions made. They are thus more likely to

comply with them. This approach can be the best way to resolve

issues in cyberspace since in this there is equal representation

and voluntary partnership; they come to achieve collaborative

goals through consultation and collaboration process.

3. TERRITORIAL SOVEREIGNTY AND CYBERSPACE

‘Cyberspace’ has been defined as “a global domain within the

information environment consisting of the interdependent network

of information technology infrastructures, including the

Internet, telecommunications networks, computer systems, and


embedded processors and controllers”. 40There is a widely-held

view that it “is not a physical place – it defines measurement in

any physical dimension or time space continuum. It is a shorthand

term that refers to the environment created by the confluence of

cooperative networks of computers, information systems, and

telecommunication infrastructures commonly referred to as the

World Wide Web.”41 It is true that cyberspace is characterized by

anonymity and ubiquity.42 Therefore it seems logical to

assimilate it to the high seas, international airspace and outer

space43, i.e., to consider it a ‘global common’ or legally a res

communis omnium.44 However, these characterizations merely

justify the obvious conclusion that cyberspace in its entirety is

not subject to the sovereignty of a single State or of a group of

States. In view of its characteristics it is immune from

appropriation.

40Joint Chiefs of Staff, Joint Pub. 1-02, Dept. of Defense Dictionary of Military and Associated Terms, at 41(12 April 2001). See also the definition by Arie J. Schaap, ‘Cyber Warfare Operations: Development andUse under International Law’, 64 AFLR, 121-173, at 126 (2009)41 Thomas Wingfi eld, The Law of Information Conflict: National Security Law in Cyberspace, at 17 (AegisResearch Corp. 2000)42 Geoffrey L Herrera, Cyberspace and Sovereignty: Thoughts on Physical Space and Digital Space, 12 (2006), available at <http://www. allacademic.com/meta/p98069_index.html>.accessed on 19 February 2014 43 W. Franzese, ‘Sovereignty in Cyberspace: Can It Exist?’, 64 AFLR 1-42, at18 sep (2009).44 U.S Department of Defense, Strategy for Operating in Cyberspace < http://www.defense.gov/news/d20110714cyber.pdf> ;accessed on 19 Feb. 2014 U.S. Department of Defense, The Strategy for Homeland Defense and Civil Support, at 12 (2005)

http://www/


Despite of the correct classification of ‘cyberspace as such’ as

a res communis omnium State Practice gives sufficient evidence that

cyberspace, or rather: components thereof, is not immune from

sovereignty and from the exercise of jurisdiction. On the one

hand, States have exercised, and will continue to exercise, their

criminal jurisdiction vis-à-vis cyber crimes45 and they continue

to regulate activities in cyberspace. On the other hand, it is

important to bear in mind that “cyberspace requires a physical

architecture to exist”.46 The respective equipment is usually

located within the territory of a State. It is owned by the

government or by corporations. It is connected to the national

electric grid.47 The integration of physical components, i.e., of

cyber infrastructure located within a State’s territory, into the

‘global domain’ of cyberspace cannot be interpreted as a waiver

of the exercise of territorial sovereignty. In view of the

genuine architecture of cyberspace it may be difficult to

exercise sovereignty. Still, the technological and

technical problems involved do not prevent a State from

exercising its sovereignty, especially its criminal jurisdiction,

to the cyber infrastructure located in areas covered by its

territorial sovereignty. States have continuously emphasized

45 Council of Europe Convention on Cybercrime of 23 November 2001, E.T.S. No.185.

46 Patrick W. Franzese, ‘Sovereignty in Cyberspace: Can It Exist?’, 64AFLR 1-42, at 18 sep (2009).47 Joshua E. Kastenberg, ‘Non-Intervention and Neutrality in Cyberspace: An Emerging Principle in theNational Practice of International Law’, 64 AFLR, 43-64, 64 (2009).


their right to exercise control over the cyber infrastructure

located in their respective territory, to exercise their

jurisdiction over cyber activities on their territory, and to

protect their cyber infrastructure against any trans-border

interference by other States or by individuals.48

It needs to be emphasized that the applicability of the principle

of sovereignty to the said components of, and activities in,

cyberspace is not barred by the innovative and novel character of

the underlying technology. This holds true for the majority of

rules and principles of customary international law that do apply

to cyberspace and to cyber activities. The U.S. President, in the

2011 International Strategy for Cyberspace, has clearly stated

that the “development of norms for state conduct in cyberspace

does not require a reinvention of customary international law,nor

does it render existing international norms obsolete. Long-

standing international norms guiding state behavior – in times of

peace and conflict – also apply in cyberspace.”49

This does not necessarily mean that the said rules and principles

are applicable to cyberspace in their traditional interpretation.

48 Strategy for Operating in Cyberspace, supra note 10. See further U.S. Department of Defense,Cyberspace Policy Report - A Report to Congress Pursuant to the National Defense Authorization Act forFiscal Year 2011, Section 934, at 4 et seq. (November 2011), < http://www.defense.gov/home/features/2011/0411_cyberstrategy/docs/NDAA%20Section%20934%20Report_For%20webpage.pdf.>; U.S.President, International Strategy for Cyberspace, at 12 et seq. (May 2011) accessed on 19February 2014 49 Ibid., at 9.


In view of the novel character of cyberspace and in view of the

vulnerability of cyber infrastructure and cyber components there

is a noticeable uncertainty amongst governments and legal

scholars as to whether the traditional rules and principles of

customary international law are sufficiently apt to provide the

desired answers to some worrying

questions. It is, therefore, of utmost importance that States not

only agree on the principal application of customary

international law to cyberspace but also on a common

interpretation that takes into due consideration the “unique

attributes of networked technology”.50 Hence it is

necessary that governments “continue to work internationally to

forge consensus regarding how norms of behavior apply to

cyberspace”.51

CONCLUSION

from the paper we can conclude that the existing human rights can

be realized in the cyber space by the theoretical approaches used

and this provides that these human rights should follow either

regime approach or multistakeholder approach to reach a

deliberated and proper solution. And hence we can get answer to

all our questions .

50 Ibid.: “Nonetheless, unique attributes of networked technology require additional work to clarify how thesenorms apply and what additional understandings might be necessary to supplement them.”51 Ibid. See also the Cyberspace Policy Report, supra note 14, at 7 At p. 9

Human rights in cyberspace

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