Difference between revisions of "Sovereignty"

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(adding Czechia)
(Adding State views: Austria and Iran)
[[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> and it was reportedly not challenged by any of the over fifty States that participated in the process of consultations regarding the Manual prior to its publication in 2017.<ref>See Michael N Schmitt and Liis Vihul, ‘[https://texaslawreview.org/respect-sovereignty-cyberspace/ Respect for Sovereignty in Cyberspace]’ (2017) 95 Tex L Rev. 1639, 1649 (noting that States ‘voiced no meaningful objection to Rule 4’ and that ‘it appeared to be received knowledge that a primary rule on territorial-sovereignty violations existed and applied to cyber operations.’).</ref> This view has now 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>, 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>Norbert Riedel, ‘[https://www.auswaertiges-amt.de/en/newsroom/news/150518-ca-b-chatham-house/271832 Cyber Security as a Dimension of Security Policy]’ (18 May 2015), arguing that ‘[e]ven in cases where one cannot speak of a use of force, the use of cyber capabilities might constitute a violation of sovereignty, if the attack can be attributed to a state, which then in turn could lead to consequences within the confines of public 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 name=":1">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 name=":2">Jeremy Wright, ‘[https://www.gov.uk/government/speeches/cyber-and-international-law-in-the-21st-century 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> By this approach, cyber operations never violate the sovereignty of a State, although they may constitute prohibited intervention, use of force or other internationally wrongful acts.