Abstract
This article critically examines the current discourse on the legal status and substance of the international law concept of "sovereignty" in cyberspace against the backdrop of conflicting political-ideological attitudes. It first traces the origins of the interpretation of "respect for sovereignty" as a primary rule of international law, and then discusses two approaches to cyberspace 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 groups 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.
This article contributes to the discussion on sovereignty by offering an alternative interpretation of state practice and international jurisprudence that constructs sovereignty as a principle with derivative primary rules. It shows 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. It carefully analyzes evidence in existing practice in support of this novel, doctrinally more precise understanding of sovereignty. Based on the argument's legal implications, it concludes with an assessment of the policies of "persistent engagement" and "cyber sovereignty."
Citation
Henning Lahmann,
On the Politics and Ideologies of the Sovereignty Discourse in Cyberspace,
32 Duke Journal of Comparative & International Law
61-107
(2021)
Available at: https://scholarship.law.duke.edu/djcil/vol32/iss1/2