Cyber laws V Conventional law: A comparative Analysis
From Advocatespedia, The Law Encyclopedia
Cyber law is the part of the overall legal system that deals with the Internet, cyberspace, and their respective legal issues. Cyber law covers a fairly broad area, encompassing several subtopics including freedom of expression, access to and usage of the Internet, and online privacy. Generically, cyber law has been referred to as the Law of the Internet. Just like any law, a cyber law is created to help protect people and organizations on the Internet from malicious people on the Internet and help maintain order.
If someone breaks a cyber law or rule, it allows another person or organization to take action against that person or have them sentenced to a punishment. There are different forms of punishment depending on the type of cyber law you broke, who you offended, where you broke the law, and where you live. In many situations breaking the rules on a website will result in your account becoming suspended or banned and your IP addressed blocked. To determine the consequences of your action for minor offenses we recommend reviewing the company’s terms of service or rules. Conventional international law, or treaty law, is based on international agreements, conventions and treaties: it is binding only on ratifying nations. Conventional Law is governed by the Vienna Convention on the Law of Treaties.
In the today’s era of rapid growth, Information technology is encompassing all walks of life all over the world. These technological developments have made the transition from paper to paperless transactions possible. We are now creating new standards of speed, efficiency, and accuracy in communication, which has become key tools for boosting innovations, creativity and increasing overall productivity. Computers are extensively used to store confidential data of political, social, economic or personal nature bringing immense benefit to the society. The rapid development of Internet and Computer technology globally has led to the growth of new forms of transnational crime especially Internet related. These crimes have virtually no boundaries and may affect any country across the globe. Thus, there is a need for awareness and enactment of necessary legislation in all countries for the prevention of computer related crime. Globally Internet and Computer based commerce and communications cut across territorial boundaries, thereby creating a new realm of human activity and undermining the feasibility and legitimacy of applying laws based on geographic boundaries. This new boundary, which is made up of the screens and passwords, separate the “Cyber world” from the "real world" of atoms. Territorially based law-making and law-enforcing authorities find this new environment deeply threatening. Conventional law is a species of special law and has its source in the agreement of those who are subject to it. Agreement is a law for those who make it. For instance, articles of association of a company or partnership are conventional laws.
One of the greatest concerns of the field of Cyber Laws has been the absence (or rather delay) of a well-defined and comprehensive framework of law across the globe. Today’s Internet was born in the early 1960's while the initial efforts for its regulation could only surface in the late 1990’s. This problem has been further aggravated by the steep rise in usage of Internet in the recent years all over the world and that too in the absence of any appropriate legal framework. Surely, the Cyber Law scenario is globally more complicated than traditional laws owing to the reason that the range of activities which are to be governed by these laws are largely technology driven, an area which is dynamically changing and is beyond anyone’s control. However enactment of these laws pose opportunities for nations to carve model Cyber Societies for the future thereby taking a lead in becoming Global IT Powers. Effective Implementation of any law is as critical an exercise as its enactment. A law implementing agency has to focus on the following major areas to be effective:
1. Creating a suitable climate thereby Inducing Self Compliance by the Society.
2. Regular monitoring of the scenario for reliable feedback.
3. Offering Openness and Flexibility to accept and incorporate necessary modifications at appropriate times.
4. Distinctly establishing the Authority-Responsibility guidelines for the Implementing Agency.
In order to be effective, it has to be ensured that the Law is Simple, fair and full of clarity. Failing this, the law may be misused to harass individuals resulting in its defiance. The implementing agency will then be compelled to take corrective actions to ensure implementation. This whole process may result in spread of corruption and polluting of the overall sentiments in society making the job of law implementing agencies more difficult Vienna Convention on the Law of Treaties, an international agreement governing treaties between states that was drafted by the International Law Commission of the United Nations and adopted on May 23, 1969, and that entered into force on January 27, 1980. A convention governing international treaties was one of the first efforts undertaken by the International Law Commission, and James Brierly was assigned as special rapporteur in 1949 to address the subject. After his resignation in 1952, each of his successors began the work anew. Sir Humphrey Waldock, appointed in 1961, produced six reports from which the commission was able to create a draft to submit to the UN General Assembly in 1966 with a recommendation that a conference be convened to conclude a convention based on the draft. The conference held its first meeting in 1968, and the convention was adopted at its second session the following year.
The convention applies only to written treaties between states. The first part of the document defines the terms and scope of the agreement. The second part lays out the rules for the conclusion and adoption of treaties, including the consent of parties to be bound by treaties and the formulation of reservations—that is, declining to be bound by one or more particular provisions of a treaty while accepting the rest. The third part deals with the application and interpretation of treaties, and the fourth part discusses means of modifying or amending treaties. These parts essentially codify existing customary law. The most important part of the convention, Part V, delineates grounds and rules for invalidating, terminating, or suspending treaties and includes a provision granting the International Court of Justice jurisdiction in the event of disputes arising from the application of those rules. The final parts discuss the effects on treaties of changes of government within a state, alterations in consular relations between states, and the outbreak of hostilities between states as well as the rules for depositaries, registration, and ratification. It was necessary for 35 member states of the United Nations to ratify the treaty before it could go into effect. Although it took until 1979 to secure those ratifications, more than half of the UN members had agreed to the convention by early 2018. Even those members that had not ratified the document, such as the United States, generally followed the prescriptions of the agreement.
According to criminal law, certain persons are excluded from criminal liability for their actions, if at the relevant time; they had not reached an age of criminal responsibility. After reaching the initial age, there may be levels of responsibility dictated by age and the type of offense allegedly committed. Governments enact laws to label certain types of activity as wrongful or illegal. Behaviour of a more antisocial nature can be stigmatized in a more positive way to show society's disapproval through the use of the word criminal.
In this context, laws tend to use the phrase, "age of criminal responsibility" in two different ways:
1. As a definition of the process for dealing with alleged offenders, the range of ages specifies the exemption of a child from the adult system of prosecution and punishment. Most states develop special juvenile justice systems in parallel to the adult criminal justice system. Children are diverted into this system when they have committed what would have been an offense in an adult.
2. As the physical capacity of a child to commit a crime. Hence, children are deemed incapable of committing some sexual or other acts requiring abilities of a more mature quality. The age of majority is the threshold of adulthood as it is conceptualized in law. It is the chronological moment when children legally assume majority control over their persons and their actions and decisions, thereby terminating the legal control and legal responsibilities of their parents over and for them. But in the cyber world it is not possible to follow these traditional principles of criminal law to fix liability. Statistics reveal that in the cyber world, most of the offenders are those who are under the age of majority. Therefore, some other mechanism has to be evolved to deal with cyber criminals.
Ethics and morality in different circumstances connotes varied and complex meanings. Each and everything which is opposed to public policy, against public welfare and which may disturb public tranquillity may be termed to be immoral and unethical. In the past terms such as imperialism, colonialism, apartheid, which were burning issues have given way to cyber crime, hacking, 'cyber-ethics' etc. Whereas the conventional law is placed, let’s take the example of the law of the sea. The law of the sea is characterized by the cohabitation of two forms of expression: the law of the sea said to be "conventional" when it is contained in a treaty ratified by States which then become Parties to it, and customary law, both expressions being capable of cohabiting.
The United Nations Convention on the Law of the Sea (UNCLOS) is the conventional basis for the law of the sea in the Mediterranean and elsewhere. But independently of this law, rules inspired by practices pursued by the States, but not expressly emanating from the Convention and without the States being Parties to it, form the basis of customary law (see the case of the United States and the Exclusive Economic Zone). Customary law thus relies on common rules whose origins do not lie in the Convention but rather in practices adopted by the States. The more these practices are generalized and repeated, over more or less time, the more the rule is considered as being accepted, without it necessarily being based on any particular article in the Convention.
The difficulty with customary law lies in the diverse ways in which it is expressed: unilateral acts passed by the States, resolutions adopted by international organizations, notices and decrees emanating from international jurisdictions. Everything then depends on circumstances - given that two factors are required when proof of the existence of a customary law needs to be established: it must be a practice accepted as being the law. Repeated over time, it must benefit from the most widespread application possible. Proving customary use is always a delicate undertaking. In the last resort, it falls to international judges to demonstrate its existence when disputes arise between States: some claiming the existence of the custom, others contesting its existence by formulating an objection when a State issues a unilateral decree. This objection needs to be persistent, and thus repeated on each occasion.
To give two examples: the notion of a continental shelf and its legal regime are indeed defined in the Convention , but a State which is not a Party to the Convention recognizes the continental shelf and may claim to exercise the sovereign rights implied by this notion, as this is quite customary. The second example is that of the Exclusive Economic Zone (EEZ) which, however, a concept is officially created by the Convention of 1982. The International Court of Justice (ICJ) has stated that this concept had customary existence through the effect of the multiplication of EEZ creations all over the world, well before the advent of the Convention.
This duality of a conventional law and a customary law makes action easier for practitioners, who no longer need to wonder whether this or that rule is applicable, as long as they are entitled to associate it with either one expression or the other of the law of the sea. Nevertheless, conventional law, i.e.The written law, offers a safer guarantee of legibility, stability, and thus of application of the legal rule. Whereas the cyber laws ambit and nature is impossible to certain in comparison of the conventional laws as a whole branch.
Famous Cases ( Conventional Law )
1. Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) Judgement 31 March 2014
Primary treaty interpreted: 1946 International Convention for the Regulation of WhalingExcerpts of the summary provided in the ICJ website: “Proceedings were instituted on 31 May 2010 by Australia, which accused Japan of pursuing “a large-scale program of whaling under the Second Phase of its Japanese Whale Research Program under Special Permit in the Antarctic (‘JARPA II’)”, in breach of obligations assumed by Japan under the 1946 International Convention for the Regulation of Whaling and of other international obligations for the preservation of marine mammals and the marine environment.
In the Judgment it rendered on 31 March 2014, the Court… turned to the question of the interpretation and application of Article VIII of the 1946 Convention, paragraph 1 of which states that the parties “may grant to any of [their] nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research”.
With respect to the interpretation of that provision, the Court first observed that, although Article VIII gives discretion to a State party to the Convention to reject the request for a special permit, whether the killing, taking and treating of whales pursuant to a requested special permit is for purposes of scientific research cannot depend simply on that State’s perception. In the view of the Court, the two elements of the phrase for purposes of (1) scientific research (2)are cumulative.
As regards the application of that same provision, the Court indicated that JARPA II could broadly be described as a “scientific research” programme. It then turned to the question of whether it was for purposes of scientific research that lethal methods were used. To answer that question, it examined whether the programme’s design and implementation were reasonable in relation to achieving its stated research objectives. The Court considered that the evidence before it did not establish that such was the case. It concluded that the special permits issued by Japan for the killing, taking and treating of whales in connection with JARPA II were not granted “for purposes of scientific research” pursuant to Article VIII, paragraph 1, of the 1946 Convention.
The Court then turned to the implications of that conclusion, in light of Australia’s contention that Japan had breached several provisions of the Schedule annexed to the said Convention. Having found that Japan had indeed breached some of the provisions invoked (namely the moratoriums on commercial whaling and factory ships, and the prohibition on commercial whaling in the Southern Ocean Sanctuary), it considered the question of remedies. Since JARPA II was an ongoing programme, it ordered Japan to revoke any extant authorization, permit or licence to kill, take or treat whales in relation to JARPA II, and to refrain from granting any further permits under Article VIII, paragraph 1, of the Convention, in pursuance of that programme.”
2. Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece) Judgement 5 December 2011 Primary treaty interpreted: Interim Accord of 13 September 1995 Excerpts of the summary provided in the ICJ website: “On 17 November 2008, the former Yugoslav Republic of Macedonia filed in the Registry of the Court an Application instituting proceedings against the Hellenic Republic in respect of a dispute concerning the interpretation and implementation of the Interim Accord of 13 September 1995. In particular, the Applicant sought to establish that, by objecting to the Applicant’s admission to NATO, the Respondent had breached Article 11, paragraph 1, of the said Accord, which provides tha: “Upon entry into force of this Interim Accord, the Party of the First Part agrees not to object to the application by or the membership of the Party of the Second Part in international, multilateral and regional organizations and institutions of which the Party of the First Part is a member ; however, the Party of the First Part reserves the right to object to any membership referred to above if and to the extent the Party of the Second Part is to be referred to in such organization or institution differently than in paragraph 2 of United Nations Security Council resolution 817 (1993).”
3. Territorial Dispute (Libyan Arab Jamahiriya/Chad) Judgment, 3 February 1994
Primary treaties interpreted: Agreement entered between Libya and Chad in Algiers, 31 August 1989 and the Franco-Libyan Treaty of Friendship and Good Neighbourliness, 10 August 1955
This case related to the delimitation of the land boundary line between Libya and Chad. On 3 September 1990, Chad initiated proceedings against the Libya based upon (1) an Agreement entered between them in Algiers on 31 August 1989 and, (2) subsidiarily, on the Franco-Libyan Treaty of Friendship and Good Neighbourliness of 10 August 1955. In respect of the latter agreement, “(…) referring to the provision of the 1955 Treaty according to which it had been concluded for a period of 20 years and could be terminated unilaterally, the Court indicated that that Treaty had to be taken to have determined a permanent frontier, and observed that, when a boundary has been the subject of agreement, its continued existence is not dependent upon the continuing life of the Treaty under which that boundary was agreed (emphasis added).
4. Application for Review of Judgment No. 333 of the United Nations Administrative Tribunal Advisory Opinion, 27 May 1987.
Primary treaty interpreted: UN Charter (Article 101(3)) This case concerns a refusal by the Secretary-General of the United Nations to renew the appointment of a staff member of the Secretariat beyond the date of expiry of his fixed-term contract, the reasons given being that the staff member had been seconded from a national administration, that his secondment had come to an end and that his contract with the United Nations was limited to the duration of the secondment. In a judgment delivered on 8 June 1984, the Administrative Tribunal rejected the staff member’s appeal against the Secretary-General’s refusal. The staff member in question applied for a review of the judgment to the Committee on Applications for Review of Administrative Tribunal Judgements, which requested the Court to give an advisory opinion on the merits of that decision. In its Advisory Opinion, rendered on 27 May 1987, the Court found that the Administrative Tribunal had not failed to exercise jurisdiction vested in it by not responding to the question whether a legal impediment existed to the further employment in the United Nations of the applicant after the expiry of his fixed-term contract, and that it did not err on any question of law relating to the provisions of the Charter of the United Nations. In that regard, the Court found that the Tribunal had established that there had been “reasonable consideration” of the applicant’s case, and by implication that the Secretary-General had not been under a misapprehension as to the effect of secondment, and that the provision of Article 101, paragraph 3, of the Charter must have been present in the mind of the Tribunal when it considered the question. In the view of the Court, those findings could not be disturbed on the ground of error on a question of law relating to the provisions of the Charter.