Difference between revisions of "Sovereignty"

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(very good comments by BS)
|[[File:Crown-Silhouette.svg|left|frameless|200x200px]][[Sovereignty]] is a core principle of international law. According to a widely accepted definition in the ''Island of Palmas'' arbitral award of 1928,<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>According to 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, international law applies in cyberspace, and hence also the principle of sovereignty applies in cyberspace. It is the subject of some debate to what extent this principle operates as a standalone rule of international law.
 
* For the proponents of this view, the prohibition on violationviolating ofthe sovereignty of other States is a substantive primary rule of international law. This view is at the basis of the analysis in 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 has reportedly not been challenged by any of the over fifty States that had participated in the process of consultations of the Manual 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>
* By contrast, the opposing view, originally formulated by the General Counsel of the US Department of Defense, considers 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".<ref>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), as cited by S Watts & T Richard, '[https://law.lclark.edu/live/files/26902-lcb223article3wattspdf Baseline Territorial Sovereignty and Cyberspace]' (2018) 22 Lewis & Clark L. Rev. 771, 829.</ref> Rather, as further explained by two high-level US government legal advisors writing in their private capacity, it is "a principle of international law that guides state interactions".<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.</ref> This view has since been endorsed at least by the UK attorney general.<ref>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) (‘The UK Government’s position is … that there is no such rule as a matter of current international law.’).</ref>
 
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 the [[prohibition of intervention]].
# '''Usurpation of "inherently governmental functions"''', such as exercise of law enforcement functions in another State’s territory without justification.
 
[[Attribution|Attributing]] the conductrelevant cyber operation to a State different from Statethe Atarget State is a necessary prerequisite for qualifying itthe cyber operation as a violation of the target State's sovereignty. Non-State actors cannot violate sovereignty on their own.<ref>[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0], commentary to rule 4, para 2.</ref>
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