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Journal Article

On the politics and ideologies of the sovereignty discourse in cyberspace

Duke Journal of Comparative and International Law
Information technology and systems
Sovereignty, cyberspace, cyber operations, Tallinn Manual, cyber sovereignty, digital sovereignty, defend forward, persistent engagement
The article critically examines the current discourse on the legal status and substance of “sovereignty” in the context of the application of international law to cyberspace against the backdrop of conflicting political-ideological attitudes. After tracing the origins of the interpretation of “respect for sovereignty” as a primary rule of international law, two approaches to cyberspace are surveyed that challenge the emerging consensus: “cyber imperialism,” embodied by the US and the other Five Eyes members on the one hand, and “cyber Westphalia,” represented by China, Russia, and Iran on the other. Both conceive cyberspace in ways fundamentally irreconcilable with prevailing legal views. A third group of states endorses the “sovereignty-as-rule” understanding but leaves this legal position vulnerable to both authoritarian co-optation and imperialist dismissal. In light of this, the paper offers an alternative interpretation of state practice and international jurisprudence that constructs sovereignty as a principle with derivative primary rules. It is shown that despite not by itself having the status of a rule, the principle of sovereignty allows for the identification of rules that protect the territorial integrity and political independence of states beyond the traditional notions of the prohibition of intervention and the use of force. Following a careful analysis of evidence in existing practice in support of this novel, doctrinally more precise understanding of sovereignty, the policies of “persistent engagement” and “cyber sovereignty” are assessed in light of the argument’s legal implications.
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