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Sovereignty in the Age of Cyber

  • Gary P. Corn (a1) and Robert Taylor (a2)
Extract

International law is a foundational pillar of the modern international order, and its applicability to both state and nonstate cyber activities is, by now, beyond question. However, owing to the unique and rapidly evolving nature of cyberspace, its ubiquitous interconnectivity, its lack of segregation between the private and public sectors, and its incompatibility with traditional concepts of geography, there are difficult and unresolved questions about exactly how international law applies to this domain. Chief among these is the question of the exact role that the principle of sovereignty plays in regulating states’ cyber activities.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 See U.S. Cong. Sen. Armed Services Committee, Hearing to Receive Testimony on United States Cyber Command in Review of the Defense Authorization Request for Fiscal Year 2017 and the Future Years Defense Program, Apr. 5, 2016, 114th Cong. 1st sess. Washington: GPO, 2016 (testimony of Admiral Michael Rogers). See also, Joseph Marks, ISIL Aims to Launch Cyberattacks on the US, Politico (Dec. 29, 2015, 05:28 AM); Joseph Pagliery, ISIS is Attacking the US Energy Grid (and Failing), CNN Money (Oct. 16, 2015, 12:28 PM).

2 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, para. 205 (June 27); 432 (Robert Jennings & Arthur Watts eds., 9th ed. 2008).

3 Chatham House, (Feb. 28, 2007).

4 James Crawford, 447 (8th ed. 2012).

5 Id. at 448.

6 Corfu Channel (U.K. v. Alb.), Merits, 1949 ICJ Rep. 4, 43 (Apr. 9) (individual opinion by Alvarez J.).

7 Island of Palmas (Neth. v. U.S.), 2 R.I.A.A 829, 838 (Perm. Ct. Arb. 1928). See also Samantha Besson, Sovereignty, in Max Planck Encyclopedia of Public International Law para. 119 (2011) (noting that sovereignty is generally characterized as the “powers and privileges resting on customary law which are independent of the particular consent of another state”).

8 Chatham House, supra note 3.

9 UN Charter art. 2(1) (“The Organization is based on the principle of the sovereign equality of all its Members.”).

10 Under limited circumstances, international organizations may create international law, but only to the extent states have conferred on them the authority to do so.

11 The S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 18 (Sept. 7).

12 U.S. Dep't of Defense, sec. 16.3.2 (2015) (revised Dec. 2016).

13 Michael Schmitt, US Transparency Regarding International Law in Cyberspace, Just Security (Nov. 15, 2016, 9:11 AM).

14 Some point to cases such as Costa Rica v. Nicaragua (Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicar.) and Construction of a Road in Costa Rica along the San Juan River (Costa Rica v. Nicar.) (Dec. 16, 2015)), Corfu Channel (Corfu Channel, supra note 6)), and Armed Activities on the Territory of the Congo (Armed Activities on the Territory of the Congo (New Application 2002 (Dem. Rep. Congo v. Uganda), 2006 ICJ Rep. 6 (Feb. 3)) as support for this position. While it is true that the ICJ has referred to violations in those cases, in each instance the facts ruled on involved substantial military presence, de facto control of territory, and in some instances, violent operations, all of which implicate higher thresholds than the sovereignty-as-a-rule proponents assert. For example, in Armed Activities on the Territory of the Congo, the ICJ found that Uganda's “unlawful military intervention” inside the territory of the Democratic Republic of the Congo (DRC) constituted a use of force in violation of Article 2(4) and a prohibited intervention, as well as military occupation of some DRC territory, and as such, constituted a violation of the DRC's sovereignty and territorial integrity in the broader sense.

15 See, e.g., The Final Act of the Conference on Security and Cooperation in Europe, Aug. 1, 1975, 14 I.L.M. 1292 (Helsinki Declaration).

16 Brian Egan (Legal Adviser, U.S. Dep't of State), International Law and Stability in Cyberspace (November 10, 2016).

17 Faisal Irshaid, How ISIS Is Spreading Its Message Online, BBC News (Jan. 19, 2014); Paul Szoldra, Inside the Hacker Underworld of ISIS, Business Insider (June 16, 2016, 9:54 AM); Brendan I. Koerner, Why ISIS Is Winning the Social Media War, Wired (Apr. 2016).

18 Egan, supra note 16.

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