Editing Sovereignty

== Definition ==
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! scope="col" style="background-color:#ffffaa;"| [[Sovereignty]]
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[[Sovereignty]] is a core principle of international law. According to a widely accepted definition of the term in the 1928 ''Island of Palmas'' arbitral award,<blockquote>[s]overeignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.<ref>''Island of Palmas (Neth. v. U.S.)'', 2 RIAA 829, 838 (Perm. Ct. Arb. 1928).</ref></blockquote>Multiple declarations by the UN,<ref>UNGA [https://unoda-web.s3-accelerate.amazonaws.com/wp-content/uploads/2016/01/A-RES-70-237-Information-Security.pdf Res 71/237 (30 December 2015)] UN Doc A/RES/20/237.</ref> NATO,<ref>North Atlantic Treaty Organization, [https://www.nato.int/cps/ic/natohq/official_texts_112964.htm 'Wales Summit Declaration']   (issued by the Head of State and Government participating in the meeting of the North Atlantic Council in Wales  (5 September 2015) para 72.</ref> OSCE,<ref>Organization for Security and Cooperation in Europe, [https://www.osce.org/pc/227281?download=true ''Decision No. 1202, OSCE Confidence-Building Measures to Reduce the Risks of Conflict Stemming from the Use of Information and Communication Technologies''] (Permanent Council, 10 March 2016) PC.DEC/1202.</ref> the European Union,<ref> Council of the European Union,[https://www.consilium.europa.eu/media/31666/st14435en17.pdf "Council Conclusions on the Joint Communication to the European Parliament and the Council: Resilience, Deterrence and Defence: Building strong cybersecurity for the EU"] (Council conclusions, 20 November 2017).</ref> and individual States have confirmed that international law applies in cyberspace.  Accordingly, so too does the principle of sovereignty. However, there is some debate as to whether this principle operates as a standalone rule of international law, the breach of which gives rise to state responsibility. 

* For the proponents of this view, the prohibition on violating the sovereignty of other States is a substantive primary rule of international law, the breach of which is an internationally wrongful act. This view was unanimously accepted by the experts who prepared the Tallinn Manual 2.0.<ref>Michael N Schmitt, '[https://heinonline.org/HOL/P?h=hein.journals/cjil19&i=36 Virtual Disenfranchisement: Cyber Election Meddling in the Grey Zones of International Law]' (2018) 19 ChiJIntlL 30,40; [https://doi.org/10.1017/CBO9781139169288 Tallinn Manual 2.0], commentary to rule 4, para 2 (‘States shoulder an obligation to respect the sovereignty of other States as a matter of international law’).</ref> It has also been adopted by several States including Austria,<ref>Austria, [https://front.un-arm.org/wp-content/uploads/2020/04/comments-by-austria.pdf Pre-Draft Report of the OEWG - ICT: Comments by Austria] (31 March 2020), stating that ‘a violation of the principle of State sovereignty constitutes an internationally wrongful act – if attributable to a State – for which a target State may seek reparation under the law of State responsibility’.</ref> the Czech Republic,<ref>Czech Republic, [https://www.nukib.cz/download/publications_en/CZ%20Statement%20-%20OEWG%20-%20International%20Law%2011.02.2020.pdf Statement by Mr. Richard Kadlčák, Special Envoy for Cyberspace, 2nd substantive session of the Open-ended Working Group on developments in the field of information and telecommunications in the context of international security] (11 February 2020), stating that ‘[t]he Czech Republic concurs with those considering the principle of sovereignty as an independent right and the respect to sovereignty as an independent obligation.’</ref> Finland,<ref>Finland, ‘[https://um.fi/documents/35732/0/KyberkannatPDF_EN.pdf/12bbbbde-623b-9f86-b254-07d5af3c6d85?t=1603097522727 International law and cyberspace: Finland’s national positions]’ (15 October 2020), 3, stating that ‘Finland sees sovereignty as a primary rule of international law, a breach of which amounts to an internationally wrongful act and triggers State responsibility. This rule is fully applicable in cyberspace.’</ref> France,<ref>French Ministry of the Armies, ‘[https://www.defense.gouv.fr/content/download/567648/9770527/file/international+law+applied+to+operations+in+cyberspace.pdf International Law Applied to Operations in Cyberspace]’, 9 September 2019, stating that ‘Any unauthorised penetration by a State of French systems or any production of effects on French territory via a digital vector may constitute, at the least, a breach of sovereignty’.</ref> Germany,<ref>Germany, ‘[https://www.auswaertiges-amt.de/blob/2446304/2ae17233b62966a4b7f16d50ca3c6802/on-the-application-of-international-law-in-cyberspace-data.pdf On the Application of International Law in Cyberspace: Position Paper]’ (March 2021), p. 3, noting that ‘Germany agrees with the view that cyber operations attributable to States which violate the sovereignty of another State are contrary to international law’.</ref> Iran,<ref>Iran, ‘[https://nournews.ir/En/News/53144/General-Staff-of-Iranian-Armed-Forces-Warns-of-Tough-Reaction-to-Any-Cyber-Threat Declaration of General Staff of the Armed Forces of the Islamic Republic of Iran Regarding International Law Applicable to the Cyberspace]’ (July 2020), para 4 (‘Any utilization of cyberspace if and when involves unlawful intrusion to the (public or private) cyber structures which is under the control of another state, maybe constituted as the violation of the sovereignty of the targeted state.’).</ref> and the Netherlands.<ref>Dutch Ministry of Foreign Affairs, ‘[https://www.government.nl/ministries/ministry-of-foreign-affairs/documents/parliamentary-documents/2019/09/26/letter-to-the-parliament-on-the-international-legal-order-in-cyberspace Letter to the parliament on the international legal order in cyberspace]’ (5 July 2019), stating that ‘countries may not conduct cyber operations that violate the sovereignty of another country’.</ref>
* By contrast, the opposing view is that sovereignty is a principle of international law that may guide State interactions, but it does not amount to a standalone primary rule.<ref>Gary P. Corn and Robert Taylor, ‘[https://doi.org/10.1017/aju.2017.57 Sovereignty in the Age of Cyber]’ (2017) 111 AJIL Unbound 207, 208 (arguing that sovereignty is ‘a principle of international law that guides state interactions’).</ref> This view has now been adopted by one State, the United Kingdom,<ref>Jeremy Wright, ‘Cyber and International Law in the 21st Century’ (23 May 2018) (stating that he was ‘not persuaded that we can currently extrapolate from that general principle a specific rule or additional prohibition for cyber activity beyond that of a prohibited intervention. The UK Government’s position is therefore that there is no such rule as a matter of current international law’); see also Memorandum from JM O’Connor, General Counsel of the Department of Defense, ‘International Law Framework for Employing Cyber Capabilities in Military Operations’ (19 January 2017) (considering that sovereignty is not ‘a binding legal norm, proscribing cyber actions by one State that result in effects occurring on the infrastructure located in another State, or that are manifest in another State’), as cited by Sean Watts & Theodore Richard, 'Baseline Territorial Sovereignty and Cyberspace' (2018) 22 Lewis & Clark L. Rev. 771, 829.</ref> and has been endorsed by the U.S. Department of Defense General Counsel.<ref>Paul C. Ney, [https://www.defense.gov/Newsroom/Speeches/Speech/Article/2099378/dod-general-counsel-remarks-at-us-cyber-command-legal-conference/ DOD General Counsel Remarks at U.S. Cyber Command Legal Conference], 2 March 2020, arguing that ‘the Department believes there is not sufficiently widespread and consistent State practice resulting from a sense of legal obligation to conclude that customary international law generally prohibits such non-consensual cyber operations in another State’s territory’.</ref> By this approach, cyber operations cannot violate sovereignty as a rule of international law, although they may constitute prohibited intervention, use of force, or other internationally wrongful acts.

The remainder of this section proceeds on the basis of the former “sovereignty-as-rule” approach. Those espousing the latter “sovereignty-as-principle” approach should refer to other relevant sections of the legal analysis (such as that on the [[prohibition of intervention]]).

It is understood that sovereignty has both an internal and an external component.<ref>Cf. James Crawford, ''Brownlie's Principles of Public International Law'' (OUP 2012) 448.</ref> In the cyber context, the “internal” facet of sovereignty entails that “[a] State enjoys sovereign authority with regard to the cyber infrastructure, persons, and cyber activities located within its territory, subject to its international legal obligations.”<ref name=":3"> [https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], rule 2.</ref><ref>Sovereignty over cyber infrastructure derives from the traditional concept of sovereignty, independent of the use of cyberspace. See Wolff Heintschel von Heinegg, '[https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?referer=https://www.google.ee/&httpsredir=1&article=1027&context=ils Territorial Sovereignty and Neutrality in Cyberspace]' (2013) 89 Int’l L. Stud. 123 (noting that '[t]erritorial sovereignty [..] implies that, subject to applicable customary or conventional rules of international law, the State alone is entitled to exercise jurisdiction, especially by subjecting objects and persons within its territory to domestic legislation and to enforce these rules.')</ref>

As a general rule, each State must respect the sovereignty of other States.<ref>UN GA Res 2625 (XXV) (24 October 1970) (Friendly Relations Declaration), preamble (emphasizing “that the purposes of the United Nations can be implemented only if States enjoy sovereign equality and comply fully with the requirements of this principle in their international relations”); [https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], rule 4.</ref> It is clear that a cyber operation with severe destructive effects, comparable to a “non-cyber” armed attack or a use of force against a State, constitutes a violation of its sovereignty; however, with more subtle cyber operations, the question is far from settled.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 4, para 5 and 12.</ref>

The following modalities, highlighted in the Tallinn Manual 2.0, represent different ways of determining what a “sovereignty violation” might mean in the context of cyber operations:

# A State organ conducting cyber operations against a target State or entities or persons located there while <b>physically present</b> in the target State's territory violates the target State's sovereignty.<ref name=":4">See, eg, [https://www.icj-cij.org/files/case-related/152/152-20151216-JUD-01-00-EN.pdf ''Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica)'' (Judgment)] [2015] ICJ Rep 665, 704–05, paras 97–99 (holding that the presence of Nicaragua’s military personnel in the territory under Costa Rica’s sovereignty amounted to a violation of Costa Rica’s territorial sovereignty); see also [https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 4, para 6.</ref> This was agreed by all Experts drafting the Manual; however, “a few” of the Experts thought that the extensive State practice carved out an exception for espionage operations.<ref name=":5">[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 4, para 7; commentary to rule 32, para 9.</ref>
# Causation of <b>physical damage or injury</b> '''by remote means''';<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 4, para 11.</ref> again, “a few” Experts took the position that this is a relevant but not a determinative factor by itself.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 4, para 12.</ref>
# Causation of a <b>loss of functionality</b> of cyber infrastructure: although the Tallinn Manual 2.0 experts agreed that a loss of functionality constituted “damage” and thus a breach of sovereignty, no consensus could be achieved as on the precise threshold for a loss of functionality (the necessity of reinstallation of operating system or other software was proposed but not universally accepted);<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 4, para 13.</ref> Below this threshold, there was no agreement among the Experts whether operations that do not cause physical consequences or a loss of functionality qualify as a violation of sovereignty.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 4, para 14.</ref>
# <b>Interference with</b> data or services that are necessary for the exercise of "<b>inherently governmental functions</b>";<ref name=":6">[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 4, para 15.</ref> although the Experts could not conclusively define the term "inherently governmental functions", they agreed that, for example, the conduct of elections would so qualify.<ref name=":7">[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 4, para 16.</ref> <!-- - What constitutes inherently governmental functions differs between states depending upon their particular political constitution.

- Interference can be distinguished from intervention (as understood by the principle of non-intervention) but there needs to be a steer as to what constitutes interference - so, intervention is coercion, but what is interference (disruption, undermining, compromising the delivery of governmental functions).  -->
# <b>Usurpation of "inherently governmental functions"</b>, such as exercise of law enforcement functions in another State’s territory without justification.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 4, para 18.</ref>

The Tallinn Manual’s view of what constitutes a violation of sovereignty has been expressly endorsed by several States including Germany<ref>Germany, ‘[https://www.auswaertiges-amt.de/blob/2446304/2ae17233b62966a4b7f16d50ca3c6802/on-the-application-of-international-law-in-cyberspace-data.pdf On the Application of International Law in Cyberspace: Position Paper]’ (March 2021), p. 4.</ref> and the Netherlands.<ref>Dutch Ministry of Foreign Affairs, ‘[https://www.government.nl/ministries/ministry-of-foreign-affairs/documents/parliamentary-documents/2019/09/26/letter-to-the-parliament-on-the-international-legal-order-in-cyberspace Letter to the parliament on the international legal order in cyberspace]’ (5 July 2019), p. 3.</ref> An alternative test has been proposed by France, which argues that a breach of sovereignty occurs already when there is “any unauthorised penetration by a State of [the victim State’s] systems”.<ref>French Ministry of the Armies, <i>International Law Applied to Operations in Cyberspace, </i>p. 6.</ref>

[[Attribution|Attributing]] the relevant cyber operation to a State different from the target State is a necessary prerequisite for qualifying the cyber operation as a violation of the target State's sovereignty.        

Whether non-State actors can violate territorial sovereignty on their own is a matter of disagreement.<ref>In favour: see, eg, Theodore Christakis, ‘The ICJ Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?’ (2011) 24 LJIL 73, 84; Marcelo Kohen, ‘The Court’s Contribution to Determining the Content of Fundamental Principles of International Law’ in Giorgio Gaja and Jenny Grote Stoutenburg (eds), ''Enhancing the Rule of Law through the International Court of Justice'' (Brill 2012) 145. Against: see, eg,  [https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 4, para 3.</ref>    
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== Appendices ==

=== See also ===
* [[Scenario 01: Election interference]]
* [[Scenario 02: Cyber espionage against government departments]]
* [[Scenario 03: Cyber operation against the power grid]]
* [[Scenario 05: State investigates and responds to cyber operations against private actors in its territory]]
* [[Scenario 07: Leak of State-developed hacking tools]]
* [[Scenario 08: Certificate authority hack]]
* [[Scenario 09: Economic cyber espionage]]
* [[Scenario 11: Sale of surveillance tools in defiance of international sanctions]]
* [[Scenario 14: Ransomware campaign]]
* [[Scenario 17: Collective responses to cyber operations]]

=== Notes and references ===
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=== Bibliography and further reading ===
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* MN Schmitt (ed), ''Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations'' (CUP 2017)
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[[Category:Sovereignty]]
[[Category:Legal concepts]]