Territorial Sovereignty and Neutrality in Cyberspace

AuthorWolff Heintschel von Heinegg
PositionStockton Professor, U.S. Naval War College
Pages123-156
Territorial Sovereignty and Neutrality in Cyberspace Vol. 89
123
B
Territorial Sovereignty and Neutrality
in Cyberspace
Wolff Heintschel von Heinegg*
I. INTRODUCTION
ecause of its mystifying characteristics, cyberspace has been called a
“fifth dimension” or a “fifth domain.” There seems to be a widespread be-
lief that it eludes the traditional rules and principles of international law,
and that there is an urgent need for new rules specifically designed for cy-
berspace. All too often in the past we witnessed a considerable degree of
perplexity vis-à-vis new technologies that resulted in similar desperate calls
for new norms; however, only in rare cases were such calls justified. If ana-
lyzed soberly, international law as it currently exists need not capitulate to
the novelty of the technology on which cyberspace is based or to the
threats that did not exist prior to the cyber age. Interestingly, States seem to
agree that customary international law is, in principle, applicable to cyber-
* Stockton Pr ofessor, U.S. Naval War College; Professor of Public Law, Europa -
Universität Viadrina, Frankfurt (Oder), Germany. This article is a modified version of
Legal Implications of Territorial S overeignty in Cyberspace and Neutrality in Cyberspace , both articles
published in 4TH INTERNATIONAL CONFERENCE ON CYBER CONFLICT PROCEEDINGS
2012, at 1, 27 (Christian Czosseck, Rain Ottis & Kathartina Ziolkowski eds., 2012). ©
2013 by Wolff Heintschel von Heinegg. The views expressed in this article are the sole
responsibility of the author and do not reflect the view of the author’s affiliations.
International Law Studies 2013
124
space, although there may be a need for a consensual adaptation to the
specific characteristics of cyberspace.
This article will explore whetherand to what extentthe principle of
territorial sovereignty and the law of neutrality apply to cyberspace. It will
be shown that certain components ofand certain activities in
cyberspace are governed by the principle of territorial sovereignty and that
neither general international law nor the law of neutrality has become obso-
lete merely because cyberspace may be considered a fifth dimension or part
of the global commons.
II. TERRITORIAL SOVEREIGNTY
A. General Characteristics of Territorial Sovereignty
Under the principle of territorial sovereignty a State exercises full and ex-
clusive authority over its territory.
1
As stated by Judge Max Huber in the
Palmas Island arbitration award, “Sovereignty in the relations between States
signifies independence. Independence in regard to a portion of the globe is
the right to exercise therein, to the exclusivity of any other States, the func-
tions of a State.”
2
The International Court of Justice (ICJ) has emphasized
that “[b]etween independent States, respect for territorial sovereignty is an
essential foundation of international relations.”
3
Territorial sovereignty,
therefore, 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. Moreover, the State is entitled to con-
trol access to and egress from its territory. The latter right seems to also
apply to all forms of communication. Finally, territorial sovereignty pro-
tects a State against any form of interference by other States. While such
interference may amount to a use of force, this article does not address that
issue.
It must be remembered that territorial sovereignty is relative in charac-
ter insofar as it does not merely afford protection to States, but also impos-
es obligations on States, especially the “obligation to protect within the ter-
1
. See, e.g., S.S. Lotu s (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 1820 (Sept. 7)
[hereinafter Lotus]; F ree Zones of Upper Savoy and Gex (Fr. v. Swit z.), 1932 P.C.I.J. (ser.
A/B) No. 46, at 16668 (June 7).
2
. Island of Palmas (Neth. v. U.S.), 2 R.I.A.A. 829, 838 (Perm. Ct. Arb. 1928).
3
. Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 6, 35 (Apr. 9) [hereinafter Corf u Channel].
Territorial Sovereignty and Neutrality in Cyberspace Vol. 89
125
ritory the rights of other States, in particular their right to integrity and in-
violability in peace and in war, together with the rights which each State
may claim for its nationals in foreign territory.”
4
B. Territorial Sovereignty and Cyberspace
“Cyberspace” has been defined as a “global domain within the information
environment consisting of the interdependent network of information
technology infrastructures, including the Internet, telecommunications
networks, computer systems, and embedded processors and controllers.”
5
There is a widely held view that it “is not a physical place—it defies meas-
urement in any physical dimension or time space continuum. It is a short-
hand term that refers to the environment created by the confluence of co-
operative networks of computers, information systems, and telecommuni-
cation infrastructures commonly referred to as the World Wide Web.”
6
It is
true that cyberspace is characterized by anonymity and ubiquity.
7
It seems
logical, therefore, to assimilate it to the high seas, international airspace or
outer space,
8
that is, to consider it a “global common” or, legally, a res com-
munis omnium.
9
However, these characterizations merely lead to the obvious
4
. Island of Palmas, supra note 2, at 839. In his separate opinion in the Corfu Channel
case, Judge Alvarez stated, “By sovereignty, we understand the whole body of rights and
attributes which a State possesses in its territory, to the exclusion of all other States, and
also in its relations with other States. Sovereignty confers rights upon States and imposes
obligations upon them.” Corfu Channel, supra note 3, at 43.
5
. Joint Chiefs of Staff, Joint Publication 1-02, DOD Dictionary of Military and As-
sociated Terms (Nov. 8, 2010), as amended through July 15, 2012 , http://www.dtic.mil/
doctrine/new_pubs/jp1_02.pdf [hereinafter Dictionary of Military and Associat ed Terms].
See also the de finition by Arie J. Schaap, Cyber Warfare Operations: Developme nt and Use u nder
International Law, 64 AIR FORCE LAW REVIEW 121, 126 (2009) (a “domain characterized by
the use of [computers and other electronic devices] to store, modify, and exchange data
via networked systems and associated physical infrastructures”).
6
. THOMAS C. WINGFIELD, THE LAW OF INFORMATION CONFLICT: NATIONAL SE-
CURITY LAW IN CYBERSPACE 17 (2000).
7
. It has been rightly stated that “global digital networks have t he features they do—
of placelessness, anonymity, and ubiquity—bec ause of politics, not in spite of them.” See
Geoffrey L. Herrera, Cyberspace and Sovereignty: Thoughts on Physical Space and Digital
Space 12 (2006) (paper prepar ed for the 47th Annual International Studies Association
Convention March 2225, 2006), http://www.allacademic.com/meta/p98069_index.ht ml.
8
. For an analysis to that effect, see Patrick W. Franzese, Sover eignty in Cyberspace: Can It
Exist?, 64 AIR FORCE LAW REVIEW 1, 1742 (2009).
9
. U.S. Department of Defense, Department of Defense Strategy for Operating in
Cyberspace (2011), available at http://www.defense.gov/news/d20110714cyber.pdf [here-

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