Cyber Sovereignty: The Way Ahead

30 Pages Posted: 17 Jul 2014 Last revised: 16 Sep 2015

See all articles by Eric Talbot Jensen

Eric Talbot Jensen

Brigham Young University School of Law

Date Written: July 16, 2014

Abstract

The last few years are full of reports of cyber incidents, some of which have caused significant damage. Each of these cyber events raise important questions about the role and responsibility of States with respect to cyber incidents. The answer to these questions revolves in large part around the international law doctrine of sovereignty. The extent to which nations exercise sovereignty over cyberspace and cyber infrastructure will provide key answers to how much control States must exercise and how much responsibility States must accept for harmful cyber activities when they fail to adequately do so.

This article argues that States have sovereign power over their cyber infrastructure and that with that sovereign power comes corresponding responsibility to control that infrastructure and prevent it from being knowingly used to harm other States. This responsibility to prevent external harm extends not only to state actors, but also to non-state actors.

This article will review some of the cardinal principles of sovereignty and their application to cyberspace and then consider the corresponding duties and obligations. In each case, the principle of sovereignty will be stated and defined. Its application to cyberspace will then be discussed, including the corresponding duty or obligation that arises from that assertion of sovereignty. Examples of the duty and obligation will be used to help clarify the analysis. Finally, issues that arise from the assertion of that authority and its corresponding duty or obligation will be highlighted.

Keywords: cyber, sovereignty, computer, law of war, law of armed conflict, international law, due regard, due diligence, attack, cyber attack, cyber operation, cyberspace, duty, obligation, Tallinn Manual, peaceful settlement of disputes, jus in bello, jus ad bellum, infrastructure, state responsibility

JEL Classification: F42, G18,G38,K10, K23, K33, K42, N40, O33, O38

Suggested Citation

Jensen, Eric Talbot, Cyber Sovereignty: The Way Ahead (July 16, 2014). 50 Texas International Law Journal 275 (2015). Available at SSRN: https://ssrn.com/abstract=2466904

Eric Talbot Jensen (Contact Author)

Brigham Young University School of Law ( email )

504 JRCB
Provo, UT 84602
United States

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