Sovereignty in Cyberspace: Lex Lata Vel Non?

Abstract

Introduction Globalization has not conquered sovereignty. Instead, the notion of sovereignty occupies center stage in discussions concerning the normative architecture of cyberspace. On the diplomatic level, the term is generally cast in its broadest sense, one that signifies freedom from external control and influence. For instance, when western States raise the issue of human rights in cyberspace, those occupying the opposite side of the negotiating table fall back on sovereignty-based arguments. Mention of sovereignty in consensus documents is consequently often the price that liberal democracies pay for recognition of their policy priorities, such as individual freedoms and the availability of self-help measures in response to hostile cyber operations Unfettered by the constraints of political agendas and negotiating tactics, the international law academy has tended to approach the notion from a normatively analytical perspective. For legal scholars, the question of how the principle of sovereignty, as well as its derivate rules, govern cyber activities by and against States has become a dominant topic on the research agenda. This article assesses a recent controversy over whether sovereignty is a primary rule of international law, sets forth the authors’ views on sovereignty violations in cyberspace, and highlights several resultant policy issues.