Contesting sovereignty in cyberspace
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Contesting sovereignty in cyberspace Alaa Assaf · Daniil Moshnikov · ‘International Law in the Digital Age’ Research and Study Group
Received: 30 June 2020 / Accepted: 24 July 2020 / Published online: 28 September 2020 © Springer Fachmedien Wiesbaden GmbH 2020
Abstract The present article critically assesses the investigations regarding the use of the legal concept of sovereignty in cyberspace. It is intended to consider the practical dilemma of legality of cyber-attacks through the prism of the principle of territorial sovereignty. The methodology employed in the investigation is based on an evaluation of the inter-state and academic debate on whether sovereignty is a concrete rule that can be violated by cyber-attacks or a general principle that is not operational. Then it attempts to develop a theoretical framework to define cyberspace in terms of territorial sovereignty, drawing lines between the debating sides on the normative nature of sovereignty and the theories on territorial sovereignty used in their argumentation. To conclude, the article recognizes the ambiguous nature of sovereign representations in cyberspace. However, it suggests that only a functional approach to state sovereignty would allow for a balanced resolution of the normative practical problems. Keywords Sovereignty · Cyberspace · Territory · Cyber-attack · Function theory
The article was prepared within the framework of the Academic Fund Program at the National Research University Higher School of Economics (HSE University) in 2020 (grant № 20-04-020) and within the framework of the Russian Academic Excellence Project “5-100”. A. Assaf () · D. Moshnikov Department of International Law, Faculty of Law, National Research University Higher School of Economics, Moscow, Russia E-Mail: [email protected] D. Moshnikov E-Mail: [email protected]
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Int. Cybersecur. Law Rev. (2020) 1:115–124
1 Introduction Cyberspace sheds light of ambiguity on the fundamental concepts in international law, particularly on the use of territorial sovereignty. What seemed a rigid legal notion and essential criterion for legal personality before, has been nowadays questioned by the States themselves. The US and the UK have recently asserted that sovereignty is solely a principle of international law and no rule can be derived from it that could be applied in the context of cyberspace [1, p. 9] This confused the practical grasp of what is legal in cyberspace, how cyber-attacks should be perceived from the sovereignty perspective, and when infringements on sovereignty may entail international legal responsibility. The quest for the appropriation of the rules of territorial sovereignty into cyberspace unfolds a larger debate on the theoretical understanding of territorial sovereignty and sovereignty itself. It provides for a critical test of the resilience of the historically consolidated concepts of International law when faced with epistemic and factual challenges like that of the novel domain of human activity of cyberspace. In order to tackle these issues,
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