Respect for Sovereignty in Cyberspace

By Schmitt, Michael N.; Vihul, Liis | Texas Law Review, June 1, 2017 | Go to article overview

Respect for Sovereignty in Cyberspace


Schmitt, Michael N., Vihul, Liis, Texas Law Review


I. Discord Regarding Sovereignty

In the late 1990s, the international legal community's attention began to turn to a new form of warfare, then labeled "computer network attack," a type of information operations.1 At the time, the Department of Defense (DoD) was at the cutting edge of thought regarding the legal significance of these operations. By 1999 its consideration of the issue had matured, and the Office of the General Counsel released An Assessment of International Legal Issues in Information Operations,2 which considered the application of the jus ad bellum and jus in bello rules, space law, international telecommunication law, the law governing espionage activities, specific treaty regimes, and domestic law to military operations in cyberspace. Information Operations operated from the premise that international law applies in cyberspace. This remains the U.S. approach nearly two decades later.3

Yet, the document was cautionary. As it perceptively noted, the international legal system is reactive in the sense that it typically develops in response to particular situations and their consequences.4 This being so, the assessment warned, "we can make some educated guesses as to how the international legal system will respond to information operations, but the direction that response actually ends up taking may depend a great deal on the nature of the events that draw the nations' attention to the issue."5 Evolution in the law's interpretation in the cyber context was therefore inevitable.

What appears to have changed since then is the DoD's position on sovereignty in cyberspace. In 1999, the question was not whether a State could violate another State's sovereignty as a matter of law; rather, the challenge was identifying when cyber operations do so. That the prohibition on violation of sovereignty is a substantive rule of international law was an assumption that permeated the assessment. For example, it noted that in air law the entry by one State's aircraft into another's national airspace was "regarded as a violation of its sovereignty and territorial integrity."6 In the maritime environment, the document pointed to the 1949 Corfu Channel case,7 in which the International Court of Justice held that the penetration of Albanian territorial waters by British warships, and the minesweeping operation therein, without legal justification amounted to a violation of Albanian sovereignty.8

Regarding cyber operations, the document observed that "[a]n unauthorized electronic intrusion into another nation's computer systems may very well end up being regarded as a violation of the victim's sovereignty. It may even be regarded as equivalent to a physical trespass into a nation's territory . . . ,"9 And with respect to responding by cyber means against individuals or groups operating from other States, it noted that:

[e]ven if it were possible to conduct a precise computer network attack on the equipment used by such individual actors, the state in which the effects of such an attack were felt, if it became aware of it, could well take the position that its sovereignty and territorial integrity had been violated.10

Thus, as framed in the 1999 DoD assessment, certain State cyber operations against other States might violate the latter's sovereignty, that is, constitute an "internationally wrongful act."11 In the same vein, and over a decade later, the premise of sovereignty as a primary rule of international law capable of being violated was accepted unanimously by the international law scholars and practitioners who prepared the 2013 Tallinn Manual on the International Law Applicable to Cyber Warfare, as well as those who produced its 2017 successor, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations}2

Recently, the DoD has indicated that it may have reassessed its position that sovereignty can be violated as a matter of international law in the cyber context. The prospect surfaced publicly in a panel presentation by Colonel Gary Com, the Staff Judge Advocate of U. …

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