Baseline Territorial Sovereignty and Cyberspace

Abstract

The question of how territorial sovereignty operates in the interconnected yet diffuse, virtual yet material, and novel yet ubiquitous realm of cyberspace has proved enormously contentious. State practice in cyberspace presents a confusing array of behavior and justifications for conduct that runs along the enduring legal fault lines of territorial sovereignty. This article examines the legal history of sovereignty, emerging State cyber practice, and early legal views taken with respect to the application of sovereignty to cyberspace.

We concede contextual variations and exceptions to the integrity of territorial sovereignty have evolved for specialized domains such as the seas. However, we identify in territorial sovereignty a baseline rule of conduct and a corresponding duty on the part of States to refrain from interference with the integrity of conditions in other States' territory. We argue that based on historical origins, legal evolution, international litigation, and recent State expressions concerning applicability of international law to cyberspace, the baseline rules of territorial sovereignty should be currently understood as a rule of conduct that generally prohibits States' nonconsensual interference with the integrity of cyber infrastructure on the territory of other States.

We acknowledge that States may soon adapt sovereignty to operate differently in cyberspace, as they have in other contexts of international relations. However, in the absence of a lex specialis of cyber sovereignty and until States resort to deliberate international lawmaking, the baseline guarantee of territorial integrity provides a principled and normatively desirable understanding of sovereignty and how it relates to cyberspace. We urge States to act quickly to reaffirm their commitment to baseline Westphalian norms of territorial sovereignty in cyberspace while crafting, through accepted means of international legal development, a nuanced and effective doctrine of territorial sovereignty in cyberspace. A sound approach will acknowledge the binding legal character of territorial sovereignty as a limit on foreign interference but offer an emerging cyber-specific understanding much like that developed for other domains that have challenged national security and peaceful interactions between States.

Keywords: Cyberspace, Cyber, Sovereignty, Public International Law, State Responsibility, Computer, Violation of Sovereignty, Network