Cyberspace Sovereignty And Its Boundaries Under International Law

The principle of state sovereignty commonly acknowledged refers to the one explained by Judge Huber in the case of Island of Palmas,that is,sovereignty implies independence,which further suggests that for a certain territory,the corresponding state of sovereignty is entitled to the right of exercising functions and powers free from interference of any other countries.With the development of scientific technology,the activity space occupied by human beings has extended from those have been discussed for a rather long time,such as land,ocean,air space and outer space,to cyberspace.It is from this that the issue of cyberspace sovereignty emerges.It is worth mentioning that the cyberspace sovereignty being discussed here cannot be simplified as the online extension of traditional sovereignty,rather,it should be understood as a new part of sovereignty shaped under an independent formation of law,which,laying its foundation on conventions and international customs,absorbs certain inspirations from general principles as well.To speak from manifestation form,cyberspace sovereignty is characterized by its complete self-sufficiency in the frame of a certain cyberspace,that is,supremacy in the domestic policy and independence in the foreign one.In terms of elements,it mainly involves space,netizen,data and government.From the point of content,it includes the right to independence,the right to equality,the right to self-defense and the right of jurisdiction.Considering the elementary requirements,it entails mutual respect for cyberspace sovereignty,mutual nonaggression on cyberspace,mutual noninterference on cyber affairs,mutual benefit,peaceful coexistence,and peaceful settlement of cyberspace disputes.When it comes back to cyberspace sovereignty itself,since it has already constituted a rule of customary international law,to respect cyberspace sovereignty of other nations also composes an obligation of any sovereign state.However,the hierarchical structure of the physical layer,the logical layer and the behavioral layer makes the cyberspace have different characteristics from the traditional physical space.Thus,the virtual nature of cyberspace makes the traditional theory of territorial sovereignty and delimitation in the traditional legal sense not fully applicable to cyberspace;its openness is also different from the closed continuity of traditional territories;its multi-participation challenges the authority of the traditional territorial sovereignty.As a matter of fact,on the scope and extent of application of sovereignty principles to cyber space,international community has not reached a consensus yet.The conclusions that cyber-attack equals to infringe on sovereignty,and that self-defense shall not exclude cyber technology measures,but such a defense must be based on a report submitted to the UN Security Council,which enjoys the right of taking such action as it deems justified by the Charter of the United Nations at any moment;while at the same time fulfill the laws on armed conflicts,in particular the principles and rules of humanitarian law,are in accordance with the standards of international law as well as the rules of customary international law.On the issue of data sovereignty,the practice and opinion juris from China,Russia,United States,France,European Union,and other countries as well as regions have by and large clarified the global standpoint on the issue of whether the data sovereignty serves as a construct of cyber sovereignty.Those countries and regions,closely related to the issue,can be regarded as the representatives paying due attention to customary international laws.According to current norms of international law including the International Covenant on Civil and Political Rights,in line with the practice and opinion juris referred to above,it should be confirmed that data sovereignty indeed constitutes a part and parcel of cyberspace sovereignty.Having clarified the foundations of international law on the concept of cyber sovereignty and related cyber-attack behavior,self-defense behavior and data sovereignty,this thesis,proceeding from data sovereignty,makes several proposals of principle on the delimitation of cyber sovereignty.For the first,the representativeness of behavior conducted by countries deeply influenced must be given due attention.For the next,in terms of later implementation,both the cooperation between countries and the leadership from certain countries are called for.For the third,from the perspective of China,the key technology to cyber space must be mastered so as to enhance our national right of speech.