@article{2021:vargaslen:microsoft_,
title = {Microsoft Corp. v. United States and the ‘Hot Pursuit’: A Case Study Against the Application of the Law of the Sea into the Cyberspace},
year = {2021},
note = {In today's world, no treaty regulates the cyberspace or the Internet.
To some extent, the multi-stakeholder model has successfully kept the
Internet free of a unique point of control, yet some nation-states
advocate for a government-based-model. Amid the Internet Corporation
for Assigned Names and Numbers (ICANN) transition debate, some
governments favoured a cyberspace regulation in the hands of an
inter-governmental organisation. Additionally, western democracies
have advocated to declare the cyberspace a fifth domain. Reasons for
these different perceptions are related to the different conceptions
nation-states have what should be the governance model for a resource
beyond their traditional borders. Considering this dichotomy, this
paper analyses the negative implications of applying the law of the
sea into cyberspace. For this purpose, this paper will explore the
concept of the 'right of hot pursuit', one of the provisions of the
United Nations Convention on the Law of the Sea (UNCLOS). The research
methodology includes as a case-study Microsoft Corp. v. United States
also known as the 'Microsoft Ireland' case. This case was selected
because it exemplified how government administrations attempt to use
the principles of international law to protect their sovereignty over
the Internet infrastructure located in their territory, even when the
access to that infrastructure is 'virtual' and there is no need to
access such infrastructure physically. Facing this scenario, where
governments try to exercise their sovereignty beyond their territorial
borders, this paper will: 1. Provide an overview of the International
Court of Justice (ICJ) and the International Tribunal for the Law of
the Sea (ITLOS) interpretations of the hot pursuit to determine the
international legal conception over this principle. 2. Analyse the
arguments of the parties involved in the Microsoft Ireland case about
why one nation-state's sovereignty should be applied or not beyond the
borders of its territory. 3. Analyse the negative repercussions of
including the hot pursuit and the fictional fragmentation of the ocean
into the cyberspace. Findings expect to enrich the discussion within
the Internet governance debate and understand the consequences of (1)
applying the international law over the Internet infrastructure and
(2) clarify the traditional legal approach that spaces without
nation-states' sovereignty should not exist.},
journal = {Zeitschrift für ausländisches öffentliches Recht und Völkerrecht / Heidelberg Journal of International Law},
pages = {755--780},
author = {Vargas-León, Patricia A.},
volume = {81},
number = {3}
}