Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


No Common Heritage: Why the Internet Cannot be Regulated Like the Sea

Matthew Matechik

In the rapidly unfolding digital age, the strongest player on the international stage is not necessarily the state with the biggest weapons or the most soldiers. Instead it is the cyber actor, which may or may not be a state, capable of most effectively leveraging the Internet to achieve objectives. Like the seafaring captains of old, these actors navigate the labyrinth of the Internet to discover, to trade, to pillage, and to conquer. Digital packets are their vessels. The Internet is their sea.

Internet Pirate

Like the sea, the internet encircles the globe. Like the sea, the Internet is used for benign activity, such as commerce and leisure, but also for destructive activity, such as theft and combat. The sea has sailors and pirates; the internet has cyber professionals and hackers. The comparison seems appropriate and begs the questions: Can international law regulate the Internet like it regulates the sea?

The similarities between the Internet as a medium and the sea as a medium suggest that international principles governing the use of the sea could effectively be applied to the use of the Internet. Upon inspection, however, this theory quickly erodes for numerous reasons. Perhaps the most significant obstacle is the lack of a common heritage to the Internet. Common heritage is the critical component that has allowed the law of the sea to develop.

Customs governing the use of the sea probably began to emerge when humans first encountered other humans at sea. These customs grew out of a recognition that the sea was an incredibly vast shared space that no one nation could hold in the way that land territory could be held. The sea was recognized as the common heritage of mankind. Seafaring parties intersected with both allies and enemies in this shared space. Customs and laws continued to develop over millennia to regulate these encounters. As humanity’s access to the sea increased, international norms increased, including codifying many of these customs in the UN Convention on the Law of the Sea (UNCLOS). These laws were based on the idea that all humans enjoyed freedom of the sea because it was common heritage.  The laws fostered shared use of the sea while deterring nefarious actions on the sea.

As a recent phenomenon, the Internet has no such common heritage, although it has become a common resource. The Internet traces its origins back to a research project completed by the United States Defense Advanced Research Projects Agency (DARPA) during the 1960s.[1] Its usage grew exponentially until it became the truly globe-spanning super network of today, reaching an estimated 3 billion people.[2] Because the United States was the primary driver of early Internet adoption, its infrastructure and usage patterns have developed in such a way that most of the world’s internet traffic passes through the United States.[3] This position offers the United States unique advantages and opportunities that the United States is unlikely to relinquish.

Global Internet Map

Other nations have more recently undertaken measures to ensure their own Internet posture also offers unique advantages and aligns with their interests. For example, China has erected “The Great Firewall” around Chinese Internet users, allowing China to censor which traffic is accessible by Chinese users.[4] China is leveraging its Internet power to further its interests at the expense of internet freedom and access. Meanwhile in the European Union, some European leaders are advocating for new Internet regulations that could bolster European tech companies’ positions against their American counterparts.[5] The fortifying of digital space will not enable the international community to adopt any sort of “freedom of the Internet” measures akin to the freedom of the seas.  Quite the opposite in fact, the trend seems to be increasing restrictions on communal use.

Even if the international community did characterize the Internet as a resource to be shared by all, regulation appears to be technically impossible, at least at present, because Internet traffic cannot be finitely quantified and observed in the same way that seafaring vessels can. Sea regulations are enforceable in large part because nations are able to observe a meaningfully quantifiable number of vessels and react by employing the appropriate legal measure. On the sea, the regulator can, for example, react to nefarious activity by boarding a vessel and searching it.

Over the Internet, the regulator would likewise have to conduct inspections in some manner but there are far too many data packets to deal with. By the end of 2016, an estimated 1,000,000,000,000 gigabytes of data will traverse the Internet annually.[6] That number is too large to fathom its significance. Finding nefarious activity among that much data and reacting appropriately while still fostering Internet freedom is technically impossible given the current state of technology. There are simply too many packets traversing the internet.

The lack of common heritage to the Internet and technological limitations on widespread enforcement make the application of the law of the sea’s principles to the Internet impossible for now. The international community must approach the Internet with a fresh perspective that considers its modern and unique characteristics. The Council of Europe’s Convention on Cybercrime, which entered into force in 2004, is currently the leading international convention in this field. The Convention identifies numerous cybercrimes that signatories must address in their domestic criminal laws, requires that certain law enforcement procedures be put into place, and demands that signatories cooperate to investigate and prosecute cybercrimes.[7] The Convention has been ratified by forty-seven states so far and signed by an additional seven.

The Convention shows some real promise because it addresses uniquely cyber issues and has seen at least some adoption. However, it still lacks global utility because it does little to address state-on-state cyber acts and lacks signatures from significant cyber powers, notably China and Russia. The lack of widespread adoption suggests cyber stakeholders with competing interests have a long way to go before they are able to agree on international regulation that works as effectively as sea regulations.

Matthew Matechik is an Evening J.D. student at the University of Baltimore School of Law (Class of 2016). He currently works full-time for the U.S. Federal Government as a Counterterrorism Analyst. He has a Bachelors of Arts (Magna Cum Laude, 2008) from Florida State University. All views in this blog post are Matthew’s own views and do not represent that of the U.S. Government. 

[1] http://www.internetsociety.org/internet/what-internet/history-internet/brief-history-internet

[2] http://www.washingtonpost.com/sf/business/2015/05/30/net-of-insecurity-part-1/

[3] http://faculty.georgetown.edu/irvinem/CCTP748/Internet-Mediology.html

[4] http://abcnews.go.com/Technology/story?id=4707107&page=1

[5] http://www.reuters.com/article/2015/06/23/us-eu-digital-letter-idUSKBN0P32AX20150623

[6] http://www.cisco.com/c/en/us/solutions/collateral/service-provider/visual-networking-index-vni/VNI_Hyperconnectivity_WP.html

[7] http://conventions.coe.int/Treaty/EN/Treaties/Html/185.htm

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UB students participate in the 2nd Clara Barton International Humanitarian Law Competition

From March 14th through March 17th in Chicago, UB Law students: Gregory Franklin (2L), Christian Noble (3L) and Maya Zegarra (3L) participated in the 2nd Clara Barton International Humanitarian Law Competition. The competition was hosted by the American Red Cross (ARC), and sponsored by the International Committee of the Red Cross (ICRC), Canadian Red Cross, and the American Society of International Law. Team UB was sponsored by UB’s International Law Society. Thcompetition, named after the founder of the American Red Cross, is simulation-based experiential legal competition exposing rising professionals to the practice of International Humanitarian Law (IHL) and real world challenges facing IHL practitioners during armed conflict.


Team UB

 In preparation for the competition, we met twice a week with our coach Catherine Moore, Coordinator for International Law Programs, to discuss several topics of IHL and run simulations of various scenarios illustrating IHL issues.  To prepare even more, we attended the IHL Workshop held by the ARC, ICRC, and University of Virginia a month prior to the competition, in Charlottesville, VA. To participate in the competition, we submitted a statement of interest, personal bios, and memorandums addressing IHL issues as pre-qualification requirement. Out of the application packet submissions, only sixteen teams from the U.S. and Canada were selected to participate in the competition.

 Clara Barton teams

A couple of days before the start of the competition, we received several background documents detailing tensions concerning a few small nations in and around the fictional Neptune Sea.  After the end of the Great War between the Antlian Federation and the Socialist Republic of Centaurs, Antlia annexed a small, formerly independent island chain. Tensions began to ease in the years after Antlia annexed the island chain, but one island, Nuk, remained on edge.  Nuk was experiencing economic downturn and increasing instances of violence between the native Nuk population and new Antlian residents.  The combination of high unemployment, heavy Antlian police presence, and perceived oppression of the native Nuk population by the Antlian oppressors brought about The Nuk Independence Liberation Front (NILF).  This group fought for independence with bombings, armed skirmishes, kidnappings, and propaganda.  This scenario would morph over time as the competition progressed.


Simulating a Press Conference

Simulating a Press Conference

While our first day in Chicago was one of rest and social gatherings, our second day was all IHL, all the time.  Day two began at 7am with a short breakfast.  The first simulation required us to assume the role of the Antlian Press Team and deflect/ reason accusations that our nation’s actions were akin to placing us into an armed conflict.  Warning shots issued to another nation, Centaurus, were characterized as communication.  Military units were labeled a “police force.”  This simulation taught us a hard lesson about characterization and word choice.  Christian once referred to the NILF members as “soldiers.”  The press (judges) seized on this gaffe and he was forced to explain he was being facetious.

The second simulation pit two teams against each other.  The detaining power (Team UB) against Prisoners of War (United States Air Force).  As the detaining power, we had the upper hand.  POW requests for flavored e-cigarette cartridges were swiftly denied, while requests for gluten free meals were harder to outright reject.  Life under our iron fist was tough, but we could not lose sight of our humanity.  The simulation continued with discussions about appropriate medical care, access to religious ceremonies, and outside communication in accordance with Geneva Convention. 

Team UB Plays the Detaining Power in an Armed Conflict

Team UB Plays the Detaining Power in an Armed Conflict

Day three began with a two part simulation.  Our task was to play both sides of an argument regarding two futuristic weapons.  The Flat Immersible Net (FIN) and an electromagnetic rail gun.  The FIN attaches to passing vessels, slowing their voyage.  Unfortunately, the FIN does not distinguish between military and civilian vessels.  Additionally, the FIN is very effective at inadvertently catching fish, reducing the local population by as much as 20%.  The rail gun is very effective at dismembering enemy military, but maybe too effective.  Further, the rail gun munitions splinter upon impact, sometimes into undetectable particulate small enough to be inhaled by nearby civilian fishing vessels.

Pointing out the negative impact of these weapons was the easy part.  Indiscriminate weapons, weapons that break apart into non-detectable fragments, and weapons that cause undue suffering are all prohibited by one or more international treaties. The second part of the simulation, explaining to an Antlian government official why these weapons do not violate those treaties, proved more challenging.  The main crux of our argument was pointing out ambiguous facts (“Thought to cause breathing problems?  I can think anything.  Is there actual proof?”) and how these weapons were just like traditional ordinance (“Bullets and bombs sever limbs.  This is the same thing.”).

The final simulation involved a mock United Nations discussion with four states.  The purpose was to create a peace keeping force to maintain an uneasy and time-sensitive ceasefire between Antlia and rival state, Lyra.  Our job was to discuss the mandate and the status of the peacekeeping personnel.  During the discussion, a question was raised: Would the status of the peacekeepers (and their respective home state) change in the event they engaged in hostilities with NILF members in the course of their peacekeeping duties?  Alternatively, would the states involved be dragged into a non-international armed conflict (NIAC)?  Three states agreed and would discuss particulars of dealing with a NIAC at a future meeting.  One state took a hardline stance: in the event of a NIAC, they would immediately pull their military support.  Due to this impasse, our roundtable did not proceed further.  Our discussion centered on the rogue state’s lack of support and the definition of the peacekeeper’s role. 

UB dinner

After a long, hard fought two days four teams advanced to the semi-finals, unfortunately, this did not include Team UB.  The two semi-final rounds focused on an International Court of Justice suit filed against the Socialist Republic of Centaurus for alleged activities in the Neptune Sea region.  After the dust settled, two teams remained standing: United States Air Force and University of Ottawa Faculty of Law.  The final simulation required the teams to negotiate a formal cessation of hostilities between the Socialist Republic of Centaurus and the Antlian Federation.  Negotiations were fierce, including prisoner return and the withdraw of troops from occupied territory.  While both sides of the negotiation were well represented, the performance of the University of Ottawa Faculty of Law convinced the judges for the win.

Team UB and Georgetown at dinner

Teams UB and Georgetown at dinner

 Overall, it was a great experience to be able to represent the University of Baltimore School of Law and participate in the Clara Barton Competition to further our knowledge of IHL.  It was also great to meet professionals and experts in the field including our fellow students who also have great interest in IHL. We hope that UB will field a team next year and continue this tradition of participation in the Clara Barton!

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Holding Private Military Security Contractors Accountable, Part I

Lindsay Stallings

What is the role of private military security contractors (PMSC) in international war today? At the beginning of the War on Terror there were an innumerable amount of private security personnel working for the United States in Iraq and Afghanistan. On October 23, 2014, a jury convicted four former Blackwater (now known as Academi) security personnel of first degree murder, voluntary manslaughter, attempted manslaughter, and using military firearms in the commission of a felony.[1] These convictions send a message that the actions of PMSCs can incur criminal liability for their actions.

The role PMSCs play in international conflicts is very important. They often do work that active duty military cannot do because of various international law constraints, they often have military training themselves, but are often not held by the same international law standards due to the status of forces agreements (SOFA) that they operate under in the host country. These agreements often afford PMSCs immunity under the domestic laws of the host country. This case featuring the four former Blackwater operatives is of great importance because it is the first instance that puts limits on the activities of the PMSC’s. 

KHALID MOHAMMED/AP - An Iraqi traffic policeman inspects a car destroyed by a Blackwater security detail in al-Nisoor Square in Baghdad, Iraq in 2007. A federal jury in Washington convicted four former Blackwater security guards on trial in the shootings of more than 30 Iraqi citizens in the heart of Baghdad.

An Iraqi traffic policeman inspects a car destroyed by a Blackwater security detail in al-Nisoor Square in Baghdad, Iraq in 2007. A federal jury in Washington convicted four former Blackwater security guards on trial in the shootings of more than 30 Iraqi citizens in the heart of Baghdad.

Condoning their Behavior?

In 2007 four Blackwater operatives killed 14 unarmed Iraqi’s, largely women and children. At the time of the incident the US refused to allow the Blackwater employees to be tried by the Iraqi justice system. They were brought back to the US to stand trial here instead. The first trial was dismissed by the judge based on the unconstitutional collection of evidence.[2] In terms of US-Iraqi diplomatic relations the mistrial was the second blow. First, the US protected the Blackwater employees by bringing them back to the US for trial. Second, when they did face trial, it was inconclusive. To the Iraqis this likely seemed as if the US was condoning the Blackwater employee’s actions, as there was no justice for those that were killed.[3]

At the conclusion of the second trial on October 22, 2014, there was little rebounding from the presumption that the US did not really intend to punish the Blackwater employees. In response to this daunting assertion, US attorney in Washington, DC said that this verdict “is a resounding affirmation of the commitment of the American people to the rule of law, even in times of war.”[4] Holding these security contractors accountable, even seven years later, will hopefully bridge the diplomatic differences exacerbated by this incident.[5]

Former Blackwater Worldwide security guard Nick Slatter, second from left, and Donald Ball, third from left, arrive with their lawyers at the U.S. District Court before surrendering to authorities in Salt Lake City, Utah, in Dec. 2008.

Former Blackwater Worldwide security guard Nick Slatter, second from left, and Donald Ball, third from left, arrive with their lawyers at the U.S. District Court before surrendering to authorities in Salt Lake City, Utah, in Dec. 2008.

What Role Will PMSCs Play in International Conflicts in the Future?

The true question is what legal status should PMSCs have in future international  and non-international armed conflicts?

In this case, the lack of international legal status is likely what caused the most diplomatic strife. These men are American citizens, but they are not American military. They do not report to the Department of Defense, the Uniform Code of Military Justice, and the US enters into agreements with the host government that waives the applicability of host country domestic law for their actions. PMSCs are private American citizens employed by the Department of State. PMSCs operate in a legal vacuum. Prior to these convictions, legal precedent was unclear as to what law applied to private citizens committing criminal acts in foreign lands. There is still not a clear legal direction as to what status PMSCs hold when they are acting in a foreign country. This could be further muddled if distinguishing between the types of conflicts that PMSCs are participating in, whether or not they are working overtly or covertly, and who has hired them (the United States government or other nations). In the second installment of this blog post, however, I will delve further into the legal status PMSC’s should have when acting within various types of international conflicts based on the legal precedent set by this case.

While legal precedent is important, it sometimes works much slower in the real world than public policy could work. The Iraqis doubted the US commitment to bringing the Blackwater employees to justice for their attack on unarmed Iraqi civilians. This ruling is a palpable step towards establishing a barrier between acceptable and unacceptable behavior of private citizens acting in a war zone. Although the Iraqis may not have their full faith in the US justice system restored after waiting seven years for a ruling, this is indeed a positive step in showing the world that we are willing to hold these private citizens accountable for their actions. This could, and hopefully does, show the world that the US does not think it is completely above the law – foreign or domestic.


Legal precedent is important and actively developing due, in large part, to this case. In the meantime, the evolving public policy will hopefully calm any remaining diplomatic strain stemming from this incident. Further, it should remind the international community that the US is taking responsibility for the actions of their PMSCs and, while it took some time in this case, impunity will not carry on into the future.

In Part Two of this blog post I will discuss the legal standards that should be applied to PMSCs in different types of international conflicts.

Lindsay Stallings is third year student at the University of Baltimore School of Law, planning to graduate in May 2015 with a J.D. and concentration in International Law. She graduated from The Ohio State University in June of 2011 with a Bachelors of Science in Political Science with minors in Sociology and International Studies. She has also studied  Spanish and Arabic language and culture extensively. While at The Ohio State University she was a member of the International Affairs Scholars program, through which she studied abroad in Bulgaria. She was active in the Undergraduate Student Government and was a member of various academic and student life university-level committees.

Her primary interests are international law, national security, and U.S. Military and diplomatic policies. Through her coursework and relationships with our international law faculty she has developed a more focused interest in the policies surrounding international conflict and the capabilities of international courts. Lindsay currently serves as the Careers Director on the International Law Society and is a Staff Editor on the Journal of International Law. Her legal coursework and extracurricular activities have given her the opportunity to mold her passion for cultural studies and problem solving into an exciting international legal career.

[1] Justine Drennan, Four Blackwater Guards Convicted of Killing 14 Unarmed Iraqis, Oct. 23, 2014 http://thecable.foreignpolicy.com/posts/2014/10/22/four_blackwater_guards_convicted_of_killing_14_unarmed_iraqis.

[2] Dwyer Arce, Federal judge dismissed charges against indicted Blackwater guards, Jan. 1, 2010 http://jurist.org/paperchase/2010/01/federal-judge-dismisses-charges-against.php.

[3] Mary Casey, U.S. Jury Convicts Four Former Blackwater Guards in 2007 Killings, Oct. 23, 2014 http://mideastafrica.foreignpolicy.com/posts/2014/10/23/us_jury_convicts_four_former_blackwater_guards_in_2007_killings

[4] Id.

[5] Matt Apuzzo, Blackwater Guards Found Guilty in 2007 Iraq Killings, Oct. 22, 2014 http://www.nytimes.com/2014/10/23/us/blackwater-verdict.html?ref=middleeast&_r=0.