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BASELINE TERRITORIAL SOVEREIGNTY AND CYBERSPACE
by***
Sean Watts & Theodore Richard
The question of how territorial sovereignty operates in the novel yet ubiquitous realm of cyberspace has proved enormously contentious. State
practice in cyberspace presents a confusing array of behavior and justifications for conduct that runs along the enduring legal fault lines of territorial sovereignty. This Article examines the legal history of sovereignty,
emerging State cyber practice, and early legal views taken with respect tothe application of sovereignty to cyberspace.
We argue that based on historical origins, legal evolution, international
litigation, and recent State expressions concerning applicability of international law to cyberspace, the baseline rules of territorial sovereignty
should be currently understood as a rule of conduct that generally prohibits States’ nonconsensual interference with the integrity of cyber infrastructure on the territory of other States.
We acknowledge that States may soon adapt sovereignty to operate differently in cyberspace, as they have in other contexts of international relations. However, in the absence of a lex specialis of cyber sovereignty anduntil States resort to deliberate international lawmaking, the baseline
guarantee of territorial integrity provides a principled and normatively
desirable understanding of sovereignty and how it relates to cyberspace.
We urge States to act quickly to reaffirm their commitment to baseline
Westphalian norms of territorial sovereignty in cyberspace while crafting,through accepted means of international legal development, a nuanced
and effective doctrine of territorial sovereignty in cyberspace. A soundapproach will acknowledge the binding legal character of territorial sovereignty as a limit on foreign interference but offer an emerging cyberspecific understanding much like that developed for other domains thathave challenged national security and peaceful interactions between
States.

*Professor of Law, Creighton University School of Law; Lieutenant Colonel,
United States Army Reserve.
**
Lieutenant Colonel, United States Air Force.

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I.
II.
III.
IV.

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Introduction............................................................................... 772
Cyberspace and International Relations ............................. 777
The International Law of Territorial Sovereignty .......... 793
Emergent Views on Territorial Sovereignty in
Cyberspace ................................................................................... 819
Baseline Territorial Sovereignty .......................................... 831
Conclusion .................................................................................. 839

V.
VI.

I. INTRODUCTION
In late 2016, in an operation code-named Glowing Symphony, theUnited States Cyber Command reportedly acquired administrator passwords to Islamic State (IS) websites. The passwords enabled deletion ofdigital content, including videos used for recruitment, from cyber infrastructure located in at least five countries outside actively hostile areas of1
Iraq and Syria. Similar digital content reportedly resided on cyber infra2
structure in as many as 30 other States. Changing the passwords report3
edly locked IS administrators out of the websites.
It is unclear whether the United States notified the States in whose
territory the affected cyber infrastructure resided in advance of the operations. A media account of the operation relates,
CIA Director John Brennan, Secretary of State John F. Kerry, FBI
Director James B. Comey and Director of National Intelligence
James R. Clapper Jr. argued that notice was necessary—especially toallied countries—to preserve relationships. [Secretary of Defense
Ashton] Carter, Cybercom commander Adm. Michael S. Rogers
and Gen. Joseph F. Dunford Jr., the chairman of the Joint Chiefs ofStaff, countered that existing authority did not require it, particularly as the Pentagon insisted there would be no harmful collateraleffects.

1

Ellen Nakashima, U.S. Military Cyber Operation to Attack ISIS Last Year Sparked
Heated Debate Over Alerting Allies, WASH. POST (May 9, 2017), https://www.
washingtonpost.com/world/national-security/us-military-cyber-operation-to-attackisis-last-year-sparked-heated-debate-over-alerting-allies/2017/05/08/93a120a2-30d511e7-9dec-764dc781686f_story.html?utm_term=.bc276ae54a1f; Joe Uchill, Anti-ISIS
Cyber Op Struggled with Issue of Notifying Allies, THE HILL (May 9, 2017), http://thehill.
com/policy/cybersecurity/332491-anti-isis-cyber-op-struggled-with-issue-of-notifying-allies.
Although both authors are assigned at the time of writing to a command responsiblefor U.S. Department of Defense cyber operations, neither author contributed to legal
reviews of an operation reported publicly as Glowing Symphony. Nor did the authors’access to non-publicly available information on U.S. cyber operations form any partof this Article.
2
Nakashima, supra note 1.
3
See Uchill, supra note 1.

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They also argued that if notice is given, word of the operation could
leak. That could tip off the target and enable other adversaries todiscover the command’s cyber capabilities.4

In addition to the political and operational calculations involved in
the operation, legal considerations surely formed part of the deliberations that preceded these operations. Legal analyses are an integral partof U.S. Department of Defense operations, especially operations subject
5
to the laws of war. However, because the deletions did not involve physical destruction of infrastructure or physical harm to persons, it is unlikely
U.S. Cyber Command planners and policymakers devoted significant attention to whether the operation involved a use of force or armed attack
under ius ad bellum, the international law of conflict management between States, or an attack for purposes of ius in bello, the international law
6on the conduct of hostilities.
Instead, legal attention preceding the operation likely focused on
the general peacetime restraints found in public international law. And
because the operation involved action taking place or with effects manifesting in foreign territory, it is further likely the lawyers advising the operation against IS considered the extent to which these operations would
violate, inter alia, the sovereignty of the States on whose territory the affected cyber infrastructure was located. If so, these lawyers found themselves addressing one of the most difficult and pressing issues of the ongoing effort to apply international law to emerging domains ofinternational relations, the question of how territorial sovereignty operates in the interconnected yet diffuse, virtual yet material, and novel yet
ubiquitous realm of cyberspace.
Even divorced from the unique and legally challenging context ofcyberspace, territorial sovereignty is an enormously complex and arcane
subject of international law. While it is axiomatically foundational tonearly every subject and rule of international law, the precise legal import of territorial sovereignty is frustratingly complicated, contextual, andelusive. It has been conceived variously and simultaneously as a concept,

4

Nakashima, supra note 1.
As a component of the U.S. Department of Defense (DoD), United States
Cyber Command is bound by DoD legal policy including its Law of War Program.
U.S. DEP’T OF DEF., DIR. 2311.01E, DOD LAW OF WAR PROGRAM ¶¶ 2, 5.7.3 (May 9,2006). The DoD Law of War Program requires all DoD components, “[m]ake
qualified legal advisers at all levels of command available to provide advice about lawof war compliance during planning and execution of exercises and operations . . . .”Id. at ¶ 5.7.3. The legal advice provided by DoD legal advisers is not limited to the lawof war but rather incorporates the full spectrum of legal obligations applicable to U.S.
military operations, including domestic and international law. See id. at ¶ 2.
6
U.S. DEP’T OF DEF., LAW OF WAR MANUAL ¶¶ 1.11, 16.3 (2016) (addressing ius adbellum); ¶¶ 3.4, 16.5 (addressing ius in bello); and ¶ 3.5 (describing the relationshipbetween the concepts).
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a sentiment, a status, a principle, and a rule of conduct. Add to thesecomplications, the fact that the concept of sovereignty seems to exist in aperpetual state of flux—a moving target for jurists.
As sovereignty has evolved to meet the demands of increasingly
complex State relations, commentators have detected a “declining intel7
ligibility of the concept . . . .” Therefore, putting sovereignty to work in a
coherent and principled manner has proved immensely difficult. Thatdifficulty has been compounded in contexts lacking deeply-rooted or established patterns of State practice. Cyberspace presents such a context.
States offer a confusing array of behavior and justifications for conductthat runs along the enduring legal fault lines of territorial sovereignty.
Various strains of thought have emerged in response to questions
concerning the fit between sovereignty and cyberspace. Early academic
attention addressed the fundamental question of the general relevanceof sovereignty to cyberspace, especially whether cyberspace might present
8
a post-Westphalian domain. This work focused on issues of compatibility,
especially the extent to which States could actually assert control overwidely dispersed, seemingly virtual cyber infrastructure and actions di9
vorced from the physical, territorial world of classic sovereignty. Jurisdictional inquiries dominated, especially questions concerning the legitimacy of prescriptive and enforcement jurisdiction over infrastructure in
10
other States’ territory.
Later work usefully characterized competing visions of governance in11cyberspace thought to flow from sovereignty. One model has prioritized7

Nicholas Greenwood Onuf, Sovereignty: Outline of a Conceptual History, 16
ALTERNATIVES 425, 428 (1991).
8
See David R. Johnson & David Post, Law and Borders—The Rise of Law inCyberspace, 48 STAN. L. REV. 1367, 1370–71 (1996) (conceiving cyberspace as a legallydistinct domain of interaction, apart from the physical world). But see Jack L.
Goldsmith, Against Cyberanarchy, 65 U. CHI. L. REV. 1199, 1245–46 (1998)(emphasizing the physical manifestations of cyberspace as subject to existing legal
regimes).
9
See generally Johnson & Post, supra note 8.
10
William P. Barr, Authority of the Federal Bureau of Investigation to OverrideInternational Law in Extraterritorial Law Enforcement Activities, Jun. 21, 1989, in 13
OPINIONS OF THE OFFICE OF LEGAL COUNSEL OF THE UNITED STATES DEPARTMENT OFJUSTICE 163 (1996); Robert G. Dixon, Jr., Constitutionality of Legislation to Establish a
Program to Prevent Aircraft Piracy, Mar. 23, 1973, in 1 SUPPLEMENTAL OPINIONS OF THE
OFFICE OF LEGAL COUNSEL OF THE UNITED STATES DEPARTMENT OF JUSTICE, 356–57(Nathan A. Forrester ed., 2013); Jack L. Goldsmith, The Internet and the Abiding
Significance of Territorial Sovereignty, 5 GLOBAL LEGAL STUD. J. 475, 476 (1998); John M.
Harmon, Extraterritorial Apprehension by the Federal Bureau of Investigation, 1980, in 4B
OPINIONS OF THE OFFICE OF LEGAL COUNSEL OF THE UNITED STATES DEPARTMENT OFJUSTICE 543 (Margaret Colgate Love ed., 1985); Henry H. Perritt, Jr., Jurisdiction in
Cyberspace, 41 VILL. L. REV. 1, 3 (1996).
11
See Kristen E. Eichensehr, The Cyber-Law of Nations, 103 GEO. L.J. 317, 329(2015).

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State control, especially over domestic features and functioning of cyber
infrastructure. Authoritarian States have claimed that cyber sovereignty
guarantees complete insulation from outside regulation or international
interference with the controls and restrictions they place on cyberinfra12
structure in their territory. For China and Russia, the exercise of sovereignty in cyberspace involves not only efforts to secure the integrity of information and information systems but also to control the flow and13
character of content accessed on territorial cyber infrastructure. Meanwhile, a competing model, most often advanced by liberal democracies,
has argued for a more limited notion of cyber sovereignty, conditionedby pluralistic, multi-stakeholder control based on coordination and co14
operation regulated by practice-based norms.
Further dialogue has inquired whether cyberspace and its ability toconnect broadly dispersed populations and interests has rendered sovereignty obsolete and whether many aspects of sovereignty should be sur15
rendered to supranational institutions. Such proposals join previous di16
alogues considering alternatives to sovereignty as means of governance.
These discussions join broader inquiries into the extent to which preservation of sovereignty helps or hinders security and peaceful coexistence
17
between States. At the core of each of these dilemmas is a dispute aboutsovereignty, its history, its legal weight, and its import in new domains ofState action such as cyberspace.
Meanwhile, a seemingly more basic issue related to sovereignty has
18arisen. As Operation Glowing Symphony illustrates, cyberspace greatly
expands opportunities for States to violate the independence and exclu-

12

See generally Adam Segal, Chinese Cyber Diplomacy in a New Era of Uncertainty,
HOOVER INSTITUTION 3 (June 2, 2017), https://www.hoover.org/research/chinesecyber-diplomacy-new-era-uncertainty (discussing China and Russia’s approach to
cyber security).
13
See Keir Giles, Russia’s Public Stance on Cyberspace Issues, in 4TH INTERNATIONALCONFERENCE ON CYBER CONFLICT 63, 65 (C. Czosseck et al. eds., 2012), https://ccdcoe.
org/sites/default/files/multimedia/pdf/2_1_Giles_RussiasPublicStanceOnCyberInfo
rmationWarfare.pdf; Segal, supra note 12, at 3.
14
Eichensehr, supra note 11, at 320–21, 329–32.
15
See generally Walter B. Wriston, Technology and Sovereignty, 67 FOREIGN AFF. 63(1988).
16
See PROBLEMATIC SOVEREIGNTY: CONTESTED RULES AND POLITICAL POSSIBILITIES
viii (Stephen D. Krasner ed., 2001).
17
See ABRAM CHAYES & ANTONIA HANDLER CHAYES, THE NEW SOVEREIGNTY:COMPLIANCE WITH INTERNATIONAL REGULATORY AGREEMENTS 1 (1995) (advocating a“new sovereignty” based on the capacity to participate in collective actions previously
reserved to single States); Anne-Marie Slaughter, Sovereignty and Power in a Networked
World Order, 40 STAN. J. INT’L L. 283, 285 (2004) (observing “states can no longer
govern effectively by being left alone and by leaving other states alone” andidentifying a “new sovereignty” of cooperative “government networks”).
18
Nakashima, supra note 1.

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sivity traditionally attendant to sovereignty. By means of its interconnected framework, cyberspace presents States unprecedented access to information and objects on the territory of other States. Cyberspace frees
States from many of the geographic and physical restraints that might
have previously prevented access. Because of their potential to compromise territorial integrity without significant impact to physical property
or immediately proximate impact on persons, cyber operations bring into sharp focus the question whether mere intrusions into territorialproperty amount to internationally wrongful acts.
General international law has not devoted to these low-intensity intrusions the significant attention it has dedicated to high-intensity andcoercive interactions between States. Where the latter events implicate asomewhat rich vocabulary of customary and codified norms and doctrine,
such as ius ad bellum and ius in bello, the former are governed chiefly by
the comparatively underdeveloped and vague framework of sovereignty.
To be sure, States have refined their notions of sovereignty in several
specific domains of international relations such as the seas and outerspace. Through customs and treaties, States have both reinforced andconditioned the legal import of sovereignty. However, the extent towhich these domain-specific refinements should be transposed to cyberspace or whether more general, baseline restraints should prevail is unclear. And if the baseline restraints of territorial sovereignty are to apply,
the precise content and extent of these rules, or whether any such rules
exist, has been shockingly neglected.
We begin this Article with a brief account of the extent and nature of
emerging State interactions in cyberspace. We devote particular attention
to increasingly common instances of competitive, even destructive, cyber
operations undertaken by States against cyber infrastructure located inother States’ territory. We then survey the history, development, and regulatory content of territorial sovereignty to evaluate its past and current
legal import as a rule of conduct. Although we concede contextual variations and exceptions have evolved for specialized domains of interaction
such as the seas, we identify in territorial sovereignty a baseline rule ofconduct and a corresponding duty on the part of States to refrain frominterference with the integrity of conditions in other States’ territory. We
then examine and evaluate public and private legal analyses of how territorial sovereignty operates in cyber contexts. We argue that based on historical origins, legal evolution, and recent State expressions concerning
applicability of international law to cyberspace, the baseline rules of territorial sovereignty should be currently understood as a rule of conductthat generally prohibits States’ nonconsensual interference with the in19
tegrity of cyber infrastructure on the territory of other States.

19

In 2012, the State Department Legal Adviser, Harold Koh, explained thatinternational law principles applied to cyberspace and that “States conducting

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This view may not hold forever, or even for long. State practice andemerging legal statements suggest States may soon adapt sovereignty tooperate differently in cyberspace, as they have in other contexts of international relations. However, in the absence of a lex specialis of cyber sovereignty and until States resort to deliberate international lawmaking, thebaseline guarantee of territorial integrity provides a principled and desirable understanding of sovereignty and how it relates to cyberspace.
II. CYBERSPACE AND INTERNATIONAL RELATIONSStates now widely recognize cyberspace as a vital domain of international relations and competition. Their policies and plans warn of in20
creasing use of cyberattacks as political instruments. The United Kingdom has acknowledged that it regularly suffers “attempts by states andstate-sponsored groups to penetrate UK networks for political, diplomatic, technological, commercial and strategic advantage, with a principal
focus on the government, defence, finance, energy and telecommunica21
tions sectors.” Russia’s recently declared cybersecurity posture focuses
on establishing an international legal regime aimed at creating condi22
tions for international information security. Russian strategy recognizes
activities in cyberspace must take into account the sovereignty of other States,
including outside the context of armed conflict.” U.S. DEP’T OF STATE OFF. OF THE
LEGAL ADVISOR, DIGEST OF THE UNITED STATES PRACTICE IN INTERNATIONAL LAW 596(CarrieLyn D. Guymon ed., 2012), https://www.state.gov/documents/organization/
211955.pdf. More recently, the leaders of the G20 nations, including the UnitedStates, affirmed “international law, and in particular the UN Charter, is applicable tostate conduct in the use of [information and communication technologies (ICTs)]and [we] commit ourselves to the view that all states should abide by norms of
responsible state behaviour in the use of ICTs . . . .” G20 LEADERS’ COMMUNIQUÉ,ANTAYLA SUMMIT 6 (Nov. 15–16, 2015), http://www.mofa.go.jp/files/000111117.pdf.
They also endorsed a 2015 report by the United Nations Group of Governmental
Experts on Developments in the Field of Information and Telecommunications in
the Context of International Security. Id. This report clearly stated, “State sovereignty
and international norms and principles that flow from sovereignty apply to the
conduct by States of ICT-related activities and to their jurisdiction over ICT
infrastructure within their territory” and that “States have jurisdiction over the ICT
infrastructure located within their territory.” U.N. Secretary-General, Rep. of the Groupof Governmental Experts on Developments in the Field of Information and Telecommunicationsin the Context of International Security, ¶ 11, U.N. Doc. A/70/174 (July 22, 2015)[hereinafter U.N. Doc. A/70/174].
20
U.S. DEP’T OF DEF., THE DEPARTMENT OF DEFENSE CYBER STRATEGY 2 (2015).
21
HM GOV’T, NATIONAL CYBER STRATEGY 2016–2021 18 (2016), https://www.
enisa.europa.eu/topics/national-cyber-security-strategies/ncss-map/national_cyber_security_strategy_2016.pdf.
22
COOPERATIVE CYBER DEFENCE CTR. OF EXCELLENCE, BASIC PRINCIPLES FOR STATEPOLICY OF THE RUSSIAN FEDERATION IN THE FIELD OF INTERNATIONAL INFORMATIONSECURITY TO 2020, 3 (2013), https://ccdcoe.org/sites/default/files/strategy/
RU_state-policy.pdf.

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the threat of information and communications technology used for terroristic, criminal, military, or political purposes inconsistent with international law and for interference into the internal affairs of sovereign States23
to violate the public order. The United States cyber strategy also recognizes threats to economic security from extortion, fraud, identity theftand child exploitation, while noting, “[c]ybersecurity threats can evenendanger international peace and security more broadly, as traditional
24
forms of conflict are extended into cyberspace.” For its part, the Chinese People’s Liberation Army has speculated that the entire Internet
25
may simply be a Western ploy to undermine Chinese sovereignty.
While States lament intrusions and disruptions of their own cyber infrastructure by outside agents, a survey of publicly-available accounts ofState conduct in cyberspace shows a simultaneous willingness to engage
in unfriendly cyber conduct dating to early stages of cyberspace. States
regularly engage in nefarious or hostile cyber operations and increasingly
resort to cyber means to deny other States effective use of cyberspace.
The disruptive and destructive potential of military operations in cyberspace was clear to the United States over a decade ago. The 2006 U.S. National Military Strategy boldly stated, “[t]he United States must have cyberspace superiority to ensure our freedom of action and deny the same
to our adversaries through the integration of network defense, exploita26
tion, and attack.” Similarly, the 2008 strategy for the U.S. Air Force
Cyber Command aimed to “provide decision-makers flexible options todeter, deny, disrupt, deceive, dissuade, and defeat adversaries through avariety of destructive and non-destructive, and lethal and non-lethal
27
means.”The extent to which the early architects of cyberspace anticipatedthese hostile conditions is unclear. Its designers initially conceived cyberspace as a communications platform. In the 1960s, the U.S. Advanced
Projects Research Agency, known as “ARPA,” sponsored studies to enable
computers to communicate with each other at distant locations or

23

Id. at 2–3.
EXEC. OFF. OF THE PRESIDENT, INTERNATIONAL STRATEGIES FOR CYBERSPACE:PROSPERITY, SECURITY AND OPENNESS IN A NETWORKED WORLD 4 (May 2011).
25
ADAM SEGAL, THE HACKED WORLD ORDER: HOW NATIONS FIGHT, TRADE,
MANEUVER, AND MANIPULATE IN THE DIGITAL AGE 29 (2016) (citing Army Newspaper: We
Can Absolutely Not Allow the Internet Become a Lost Territory of People’s Minds, CHINACOPYRIGHT & MEDIA (May 13, 2015), https://chinacopyrightandmedia.wordpress.
24

com/2015/05/13/army-newspaper-we-can-absolutely-not-allow-the-internet-become-a-listterritory-of-peoples-minds/).
26

PETER PACE, CHAIRMAN OF THE JOINT CHIEFS OF STAFF, THE NATIONAL MILITARYSTRATEGY FOR CYBERSPACE OPERATIONS 1 (2006), http://nsarchive.gwu.edu/NSAEBB/NSAEBB424/docs/Cyber-023.pdf.
27
MAJ. GEN. WILLIAM T. LORD, AIR FORCE CYBER COMMAND STRATEGIC VISION,
USAF II (Feb. 2008), www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA479060.

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28

nodes. In 1973, ARPA established its first international cyber nodes in29
30
Kjeller, Norway and at the University College of London. Whether anticipated or not, hostile conduct soon surfaced; the same year thesenodes became operational, ARPA discovered malicious behavior involving systems compromised and intentionally crashed by anonymous us31
ers.
On January 1, 1983, an improved communication protocol enabledmultiple computer networks to communicate with each other, forming a
32
network of networks, ARPANET or the early Internet. Mindful of its
power for both good and mischief, early cyber philosophers declared the33
Internet a realm free from sovereignty and State authority. Many
thought an unregulated, decentralized Internet would make government
34
control and censorship impossible. These accounts emphasized the35
seemingly virtual qualities of electronic storage and exchange. Others
characterized the Internet as a “global commons,” analogous to the high36
seas. As a global commons, cyberspace might be a domain outside the28
Robert H. Zakon, Hobbes’ Internet Timeline 25, ZAKON.ORG, https://www.zakon.
org/robert/internet/timeline/.
29
ARPANET: NORSAR Becomes the First Non-US Node on ARPANET, the Predecessor to
Today’s Internet, NORSAR, https://www.norsar.no/about-us/history/arpanet-article774-270.html.
30

30 Years of the International Internet, BRIT. BROADCASTING CORP. (Nov. 19, 2003),
http://news.bbc.co.uk/2/hi/technology/3280897.stm.
31
See RFC 602 - “The Stockings Were Hung by the Chimney with Care,” FAQS.ORG,
http://www.faqs.org/rfcs/rfc602.html.
32
MITCH WALDROP, DARPA AND THE INTERNET REVOLUTION 85 (2015),
http://www.darpa.mil/attachments/(2O15)%20Global%20Nav%20-%20About%20Us%
20-%20History%20-%20Resources%20-%2050th%20-%20Internet%20(Approved).pdf.
33

John Perry Barlow, A Declaration of the Independence of Cyberspace, ELEC. FRONTIER
FOUND. (Feb. 8, 1996), https://www.eff.org/cyberspace-independence. Later legal
analyses refined the argument somewhat noting differences in the scale and effect ofcyber interactions to justify departure from legacy legal frameworks includinginternational law. See David G. Post, Against “Against Cyberanarchy,” 17 BERKELEY TECH.
L.J. 1365, 1366 (2002).
34
Katherine Maher, The New Westphalian Web, FOREIGN POLICY (Feb. 25, 2013),
http://foreignpolicy.com/2013/02/25/the-new-westphalian-web/.
35
Johnson & Post, supra note 8, at 1370–71.
36
U.S. DEP’T OF DEF., STRATEGY FOR HOMELAND DEFENSE & CIVIL SUPPORT 1(2005); Elena Bojinova, Cyberlaw: Jurisdiction and Choice of Law, 7 NEW ENG. INT’L &COMP. L. ANN. 217, 217 (2001); Anupam Chander, The New, New Property, 81 TEX. L.
REV. 715, 720 (2003); Roger Hurwitz, Depleted Trust in the Cyber Commons, 6 STRATEGIC
STUD. Q. 20, 23 (2012); Lowell E. Jacoby, Global Commons and the Role for Intelligence, 83
INT’L L. STUD. 51, 52 (2007); Charles D. Siegal, Rule Formation in Non-Hierarchical
Systems, 16 TEMP. ENVTL. L. & TECH. J. 173, 216 (1998); Bill Davidow, The Tragedy of theInternet Commons, THE ATLANTIC (May 18, 2012), https://www.theatlantic.com/
technology/archive/2012/05/the-tragedy-of-the-internet-commons/257290/;
MAJ.
GEN. MARK BARRETT ET AL., SUPREME ALLIED COMMAND TRANSFORMATION, NORTH

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political control of any single State’s sovereignty, offering universal ac37
cess.
However, the Internet soon proved to be neither a global commons
nor a virtual or sovereignty-free realm. It manifested instead as a collection of linked but distinct, concrete, and physically identifiable infra38
structure. Today, most of the components of cyberspace are located on
territory fully subject to territorial sovereignty. The inner workings of its
functions and protocols often seem ethereal and remain, for most,clouded in mystery. Yet cyberspace clearly reveals itself in a physical architecture, including tangible hardware, connecting structures, cables,
and transmitters. With these material conceptions in mind, debates concerning international cyberspace governance quickly turned toward tra39
ditional regulatory models, including domestic and Westphalian-based
international law.
Social, practical, and political considerations explain the embrace of
the State-centric, Westphalian system in cyberspace. Professors Jack Goldsmith and Tim Wu offer three explanations why the State-centric systemof governance has been transposed to cyberspace. First, end users prefer40
local linguistic and cultural content. Despite its worldwide reach andearly dominance by English language sites, Internet use and content has
become more parochial, and therefore territorial, in many respects overtime. Second, technological developments have enabled State-imposed
41
controls, such as firewalls and closed networks. Notwithstanding its
technical capacity to operate in an entirely borderless fashion, the InterATLANTIC TREATY ORG., ASSURED ACCESS TO THE GLOBAL COMMONS xi (Apr. 3, 2011),
http://www.act.nato.int/images/stories/events/2010/gc/aagc_finalreport.pdf.
37
UN SYSTEM TASK TEAM ON THE POST-2015 UN DEVELOPMENT AGENDA, GLOBAL
GOVERNANCE AND GOVERNANCE OF THE GLOBAL COMMONS IN THE GLOBAL PARTNERSHIPFOR DEVELOPMENT BEYOND 2015 3 (2013), http://www.un.org/en/development/desa/
policy/untaskteam_undf/thinkpieces/24_thinkpiece_global_governance.pdf; Michael
Chertoff, The Strategic Significance of the Internet Commons, 8 STRATEGIC STUD. Q. 10, 10(2014).
38
JACK GOLDSMITH & TIM WU, WHO CONTROLS THE INTERNET?: ILLUSIONS OF A
BORDERLESS WORLD 68 (2008). See also Patrick W. Franzese, Sovereignty in Cyberspace:
Can it Exist?, 64 A.F. L. REV. 1, 17 (2009) (arguing that it is problematic tocharacterize cyberspace as a global commons because it lacks prerequisitecharacteristics, such as a global governing treaty with specific and identifiable usesand prohibitions, common and definable boundaries, consensus by States to forgo
sovereignty claims, and lack of state ability to control); Mark Raymond, Puncturing theMyth of the Internet as a Commons, 3 GEO. J. INT’L AFF. 53, 57–58 (2014) (characterizing
the internet as a set of nested clubs). But see Wolff Heintschel von Heinegg, Territorial
Sovereignty and Neutrality in Cyberspace, 89 INT’L L. STUD. 123, 126 (2013) (asserting thatcyberspace is properly classified as res communis omnium, while its components are
subject to territorial sovereignty rules).
39
Leo Gross, The Peace of Westphalia, 1648–1948, 42 AM. J. INT’L L. 20, 20 (1948).
40
GOLDSMITH & WU, supra note 38, at 149.
41
Id. at 149–50.

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net has been to some extent Balkanized by security controls erected andmaintained by States. Finally, States have felt compelled to enforce legacy
laws, especially those regulating national security, intellectual property,
contract enforcement, libel and slander, gambling, and content of42
speech. From a sovereignty-minded perspective, States have demonstrated a strong commitment to enforce their laws over Internet activities
within their territories.
It is not surprising that once States conceived of cyberspace as a domain commensurate with the competitive Westphalian system of international relations, that cyberspace would share the latter’s faults and security challenges. Cyberspace has proved to reflect, rather than to deviate
from, the contentious environment of international relations. Even before international cyber relations became common place, States recognized the potential for code to secure strategic advantage. During theCold War, the U.S. Central Intelligence Agency (CIA) tracked Soviet efforts to acquire Western technology by surreptitious means. The CIA reportedly worked with American industry to modify and allow Soviet
43
agents to steal defective technology. In one case, a covert operation deliberately slipped flawed natural gas pipeline software code to the Sovi44
ets. Months later a Soviet natural gas pipeline exploded, giving perhaps
45
the first literal effect to a “logic bomb.”
As cyberspace matured, campaigns ranging from small-scale, individual hacks to coordinated State practice proliferated rapidly. In 1986,
West German hackers broke into the Lawrence Berkley National Labora46
tories, the ARPANET/MILNET, and other U.S. networks. Searches for
keywords like “nuclear,” “sdi” (the Strategic Defense Initiative), “norad”(the joint Canadian-U.S. North American Aerospace Defense Command), and “kh-11” (a reconnaissance satellite) revealed an effort to locate sensitive national security information either on behalf of U.S. Cold47
War adversaries or for transfer to them. Breaches traced to the Nether-42

Id. at 150.
Gus. W. Weiss, Duping the Soviets: The Farewell Dossier, 39 STUD. IN INTELLIGENCE
121, 125 (1996).
44
THOMAS C. REED, AT THE ABYSS: AN INSIDER’S HISTORY OF THE COLD WAR 268–69(2004); David E. Hoffman, Reagan Approved Plan to Sabotage Soviets, WASH. POST,(Feb. 27, 2004), https://www.washingtonpost.com/archive/politics/2004/02/27/reagan43

approved-plan-to-sabotage-soviets/a9184eff-47fd-402e-beb2-63970851e130/?utm_term=.2582b0bd3829.
45

REED, supra note 44, at 269.
MILNET was created for operational military traffic in 1983 due to heavy useof the ARPANET. U.S. GEN. ACCOUNTING OFFICE, GAO/IMTEC-89-57, COMPUTER
SECURITY: VIRUS HIGHLIGHTS NEED FOR IMPROVED INTERNET MANAGEMENT 8–9 (1989)[hereinafter GAO/IMTEC-89-57].
47
Clifford Stoll, Stalking the Wily Hacker, 31 COMM. OF THE ACM 484, 489 (1988).
See also Jason Healey, A Brief History of U.S. Cyber Conflict, in A FIERCE DOMAIN: CONFLICT
46

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lands similarly accessed U.S. military networks searching for information
on Patriot missiles, nuclear weapons, and Operation Desert Storm from48
1990 to 1991. The Dutch hackers reportedly offered to sell the infor49
mation to the Iraqi government, which considered the offer a hoax. In
1994, British hackers gained unauthorized access to computer networks
at U.S Air Force laboratories in Rome, New York. They soon downloaded
sensitive research on air tasking orders, the messages used by militarycommanders to convey orders to pilots relating to wartime tactics and50
targeting. In 1998, teenagers from California and an Israeli citizen accessed U.S. and Israeli national security computer networks in the most51
organized and systematic infiltration discovered to that point.
State responses to each of these incidents focused on domestic crim52
inal processes. Little publicly-available information indicates the extent
to which the victim States regarded these incidents as international in
IN CYBERSPACE, 1986 TO 2012, 29 (Jason Healey ed., 2013); CLIFF STOLL, THE CUCKOO’S

EGG: TRACKING A SPY THROUGH THE MAZE OF COMPUTER ESPIONAGE 364–69 (2005).
48
U.S. GEN. ACCOUNTING OFF., GAO/T-IMTEC-92-5, COMPUTER SECURITY:
HACKERS PENETRATE DOD COMPUTER SYSTEMS 1–2 (1991) (statement of Jack L. Brock,Jr., Director, Government Information and Financial Management, Information
Management and Technology Division); Healey, supra note 47, at 36.
49
Computer Security Experts: Dutch Hackers Stole Gulf War Secrets, ASSOCIATED PRESS(Mar. 24, 1997), http://www.apnewsarchive.com/1997/Computer-security-expertsDutch-hackers-stole-Gulf-War-secrets/id-9bdfd653327fc9c17e643090f08d1d04.
50
Healy, supra note 47, at 37; U.S. GEN. ACCOUNTING OFF., GAO/T-AIMD-96-92,
COMPUTER SECURITY: COMPUTER ATTACKS AT DEPARTMENT OF DEFENSE POSE INCREASINGRISKS 3–4 (1996) [hereinafter GAO/T-AIMD-96-92] (statement of Jack L. Brock,
Director, Defense Information and Financial Management Systems, Accounting andInformation Management Division).
51
Five Teens Suspected of Hacking into Pentagon Computers, WASH. POST (Mar. 20,
1998),
https://www.washingtonpost.com/archive/politics/1998/03/20/five-teenssuspected-of-hacking-into-pentagon-computers/abc8a0bc-9741-43dd-aaa9a57ff873975a/?utm_term=.a2fa8e4469ee; Doug Struck, ‘Rites of Youth’: Hacking in the‘90s, WASH. POST (Mar. 21, 1998), https://www.washingtonpost.com/archive/politics/
1998/03/21/rites-of-youth-hacking-in-the-90s/4d17d284-b58f-47c9-b8e3-d3b16a3ef731/?utm_term=.58768745d178.
52

The German hackers were arrested. John Markoff, West Germans Raid Spy Ring
That Violated U.S. Computers, N.Y. TIMES (Mar. 3, 1989), http://www.nytimes.com/1989/
03/03/world/west-germans-raid-spy-ring-that-violated-us-computers.html. Although theDutch hackers were filmed by a television news team, they were not prosecuted
because the Netherlands had no laws prohibiting computer hacking at the time.
Computer Security Experts, supra note 49; John Markoff, Dutch Computer Rogues Infiltrate
American Systems with Impunity, N.Y. TIMES (Apr. 21, 1991), http://www.nytimes.com/
1991/04/21/us/dutch-computer-rogues-infiltrate-american-systems-with-impunity.html.

The Dutch Parliament enacted a Computer Crime Act in 1993 to prevent further
hacking. Bert-Jaap Koops, Cybercrime Legislation in the Netherlands, 4 CYBERCRIME &SECURITY 1 (2005), http://www.cyberlawdb.com/docs/netherlands/cybercrime.pdf.
One British hacker, codenamed “Datastream Cowboy,” was caught, while the other,codenamed “Kuji,” was not. GAO/T-AIMD-96-92, supra note 50, at 4. Datastream
Cowboy, who was 16 years old in 1994, was fined over £1,200 for the intrusions. Id.

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character. While these cases were concerning, they represented a mere
prelude to later events as malicious cyber operations between State actors
became paramount.
It soon became clear that State cyber operations no longer operated
on an ad hoc basis. Rather, States had developed complex, deliberate, andsystematic cyber exploitation agendas and actively cultivated the personnel and means to carry them out. By the late 1990s, the United States andother Western powers surmised that the Russian government ran an organized and well-resourced operation to infiltrate computer systems fromdefense ministries, space agencies, other government departments and53
universities. Publicly-available information on these programs and theextent of Western awareness of them is still limited. In an incident thatreceived extensive after-the-fact coverage, Russia is reported to have infiltrated classified U.S. government systems using thumb drives scattered54
near U.S. overseas military bases. Buoyed by these successes, Russian
55
cyber infiltration and manipulation campaigns have proliferated since.
In 2005, the United States confirmed an extensive cyber campaign
56
by China. A decade later, Chinese hackers managed to breach the United States Office of Personnel Management and steal sensitive infor57
mation on U.S. Government personnel. China denied the charges, then53

Adam Elkus, Moonlight Maze, in A FIERCE DOMAIN: CONFLICT IN CYBERSPACE,
1986 TO 2012, 152 (Jason Healey ed., 2013).
54
Karl Grindal, Operation BUCKSHOT YANKEE, in A FIERCE DOMAIN: CONFLICT IN
CYBERSPACE, 1986 TO 2012 205–7 (Jason Healey ed., 2013). While the virus sent a
beacon over the internet, it was disabled before any instructions were received. Id. at
205.
55
Andy Greenberg, Russian Hackers Have Used the Same Backdoor for Two Decades,
WIRED (Apr. 3, 2017), https://www.wired.com/2017/04/russian-hackers-used-backdoortwo-decades/. See also Craig Whitlock & Missy Ryan, U.S. Suspects Russia in Hack ofPentagon Computer Network, WASH. POST (Aug. 6, 2015), https://www.washingtonpost.
com/world/national-security/us-suspects-russia-in-hack-of-pentagon-computernetwork/2015/08/06/b80e1644-3c7a-11e5-9c2d-ed991d848c48_story.html?utm_term=.4792c856dd65 (describing Russian infiltration of the U.S. Joint Chiefs of Staff email

system); Kim Zetter, Russian ‘Sandworm’ Hack Has Been Spying on Foreign Governments
For Years, WIRED (Oct. 14, 2014), https://www.wired.com/2014/10/russian-sandwormhack-isight/ (describing how Russians exploited vulnerabilities in the Windows
operating system since 2009 to collect intelligence and diplomatic information on
Ukraine); Kim Zetter, Russian Spy Gang Hijacks Satellite Links to Steal Data, WIRED(Sept. 9, 2015), https://www.wired.com/2015/09/turla-russian-espionage-gang-hijackssatellite-connections-to-steal-data/ (describing how the Russian state-sponsored “Turla”
gang covertly hacked satellite IP addresses between 2007 and the article’s publicationin 2015).
56
Adam Segal, From TITAN RAIN to BYZANTINE HADES: Chinese Cyber Espionage,
in A FIERCE DOMAIN: CONFLICT IN CYBERSPACE, 1986 TO 2012 166 (Jason Healey ed.,2013).
57
Brendan I. Koerner, Inside the Cyberattack That Shocked the US Government, WIRED(Oct. 23, 2016), https://www.wired.com/2016/10/inside-cyberattack-shocked-usgovernment/; OPM to Notify Employees of Cybersecurity Incident, U.S. OFF. OF PERSONNEL

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publicly accused the U.S. of cyber espionage relying on revelations from
Edward Snowden, a U.S. National Security Agency contractor who disclosed top-secret information, including accounts of sensitive and threat58
ening U.S. cyber capabilities. The United States eventually indicted five
Chinese military personnel for commercial espionage under domestic
59
criminal law.
Although serious, China’s allegations against the U.S. were not especially scandalous given that the U.S. had already publicly admitted to en60
gaging in cyber intelligence collection. A number of specific cyber espionage events have been attributed to the U.S. and its allies. In 2012, forexample, the Russian antivirus firm Kaspersky Lab discovered spyware
dubbed “Flame” on computers primarily located in the Middle East and61
attributed it to contractors hired by the United States and Israel.
Of course, cyber espionage is not limited to large, powerful nations.
In fact, given the modest means required to carry out cyber espionage,
cyberspace has proved something of a leveler between strong and weakStates. North Korea, for example, reportedly hacked the operator ofSouth Korean nuclear reactors and threatened to sell the information to62
other States. Similarly, researchers from Palo Alto Networks discovered

MGMT. (June 4, 2015), https://www.opm.gov/news/releases/2015/06/opm-to-notifyemployees-of-cybersecurity-incident/.
58
James T. Areddy, China Says U.S. also Engages in Hacking, WALL ST. J.
(May 27, 2014), https://www.wsj.com/articles/china-issues-its-own-allegations-on-u-scyberespionage-1401162497; Siobhan Gorman, Defense Secretary Says U.S. Not Seeking to‘Militarize’ Cyberspace, WALL ST. J. (Mar. 28, 2014), https://www.wsj.com/articles/
defense-secretary-says-u-s-not-seeking-to-militarize-cyberspace-1396036239.
59
Press Release, U.S. Dep’t of Justice, U.S. Charges Five Chinese Military Hackers
for Cyber Espionage Against U.S. Corporations and a Labor Organization forCommercial Advantage (May 19, 2014), https://www.justice.gov/opa/pr/us-chargesfive-chinese-military-hackers-cyber-espionage-against-us-corporations-and-labor.
Seegenerally Press Release, The White House, FACT SHEET: President Xi Jinping’s State
Visit to the United States (Sept. 25, 2015), https://obamawhitehouse.archives.gov/
the-press-office/2015/09/25/fact-sheet-president-xi-jinpings-state-visit-united-states(noting that following the indictment, the United States and China have agreed that“neither country’s government will conduct or knowingly support cyber-enabled theftof intellectual property”).
60
Andy Greenberg, Cyberespionage Is a Top Priority for CIA’s New Directorate, WIRED(Mar. 9, 2015), https://www.wired.com/2015/03/cias-new-directorate-makes-cyberespionage-top-priority/; Gorman, supra note 58.
61
Kim Zetter, Meet ‘Flame,’ The Massive Spy Malware Infiltrating Iranian Computers,
WIRED (May 28, 2012), https://www.wired.com/2012/05/flame/.
62
Ju-min Park & Meeyoung Cho, South Korea Blames North Korea for December Hackon Nuclear Operator, REUTERS (Mar. 17, 2015), http://www.reuters.com/article/usnuclear-southkorea-northkorea-idUSKBN0MD0GR20150317.

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Iranian spyware on 326 computers in 35 countries thought to have been
63
in place from 2007 until discovery in 2016.
While the mere collection of intelligence information is evident inlongstanding and widespread State conduct and has perhaps establisheditself as an exception to sovereignty-based duties prohibiting interference, a relatively new practice appears to be developing. In recent cases,
information has been extracted from cyber infrastructure and then selectively released to influence or corrupt policymaking and potentially thepolitical processes of victim States.
Disclosures of electronically-stored State secrets gained notoriety
with high-profile cases involving individuals like Snowden and U.S. Army
Private First Class Bradley (now Chelsea) Manning. Each independently
obtained classified information from U.S. classified networks, then released it to media outlets to inform the public of questionable U.S. gov64
ernment behavior. In 2016, 2.6 terabytes of confidential emails and files
65
from a Panamanian law firm were released to the press. These “Panama
Papers” implicated world leaders and others in massive tax avoidance
66
schemes. Although the documents did not name Russian President Vladimir Putin, they demonstrated how his close associates made billions of67
dollars from his influence. Putin responded by citing a WikiLeaks tweet
connecting the funding of one of the media organizations reporting on
the Panama Papers to the U.S., and declared, “WikiLeaks has showed us
68that official people and official organs of the US are behind this.” The
63

Lucian Constantin, Researchers Dismantle Decade-Long Iranian Cyberespionage
Operation, PCWORLD (June 29, 2016), http://www.pcworld.com/article/3089878/
researchers-dismantle-decade-long-iranian-cyberespionage-operation.html.
64Mark Norris, Bad “Leaker” or Good “Whistleblower”? A Test, 64 CASE W. RES. L.
REV. 693, 696–98 (2013).
65
Andy Greenberg, How Reporters Pulled Off the Panama Papers, the Biggest Leak in
Whistleblower History, WIRED (Apr. 4, 2016), https://www.wired.com/2016/04/reporterspulled-off-panama-papers-biggest-leak-whistleblower-history/.
66
Luke Harding, What are the Panama Papers? A Guide to History’s Biggest Data Leak,THE GUARDIAN (Apr. 5, 2016), https://www.theguardian.com/news/2016/apr/03/
what-you-need-to-know-about-the-panama-papers.
67
Roman Anin, Russia: Banking on Influence, ORGANIZED CRIME & CORRUPTIONREPORTING PROJECT (OCCRP) (June 9, 2016), https://www.occrp.org/en/
panamapapers/rossiya-putins-bank/; Luke Harding, Revealed: The $2Bn Offshore Trailthat Leads to Vladimir Putin, THE GUARDIAN (Apr. 3, 2016), https://www.theguardian.
com/news/2016/apr/03/panama-papers-money-hidden-offshore.
68
Alec Luhn & Luke Harding, Putin Dismisses Panama Papers as an Attempt to
Destabilise Russia, THE GUARDIAN (Apr. 7, 2016), https://www.theguardian.com/news/
2016/apr/07/putin-dismisses-panama-papers-as-an-attempt-to-destabilise-russia;
Panama Papers: Putin Rejects Corruption Allegations, BRIT. BROADCASTING CORP. (Apr. 7,2016), http://www.bbc.com/news/world-europe-35989560. While Wikileaks pointed to
U.S. funding of a media outlet, Wikileaks later tweeted, “[c]laims that
#PanamaPapers themselves are a ‘plot’ against Russia are nonsense.” Neil
MacFarquhar & Stephen Castle, Panama Papers Continue to Shake Leaders, Including

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whistleblower behind the Panama Papers has not been revealed, but denied working for any government or intelligence agency, and claims the69
motivation was to reveal injustice.
Regardless who leaked the Panama Papers, Russia selectively released
information collected by its intelligence sources to the media to generate
political effects in other countries. By 2016, the world learned that Russia’s intelligence services had used cyber means to collect information on
70
targets associated with both major U.S. political parties. Russia thenleaked victim data to media outlets and WikiLeaks to influence U.S. elec71
tions. Russian hackers are accused of similar behavior in French elec72
tions. Experts believe Russia was not simply releasing selective information collected through cyber means, but also altering it to create
disinformation, creating confusion and undermining the credibility of73
foreign media.
Cameron and Putin, N.Y. TIMES (Apr. 7, 2016), https://www.nytimes.com/2016/04/08/
world/europe/vladimir-putin-panama-papers-american-plot.html.
69

Caroline Mortimer, Panama Papers: Whistleblower Breaks Silence to Explain Why
They Leaked the 11.5M Files, INDEP. (May 6, 2016), http://www.independent.co.uk/
news/world/politics/panama-papers-whistleblower-breaks-silence-to-explain-why-heleaked-the-115m-files-a7017691.html.
70
OFFICE OF THE DIR. OF NAT. INTELLIGENCE, BACKGROUND TO “ASSESSING RUSSIAN
ACTIVITIES AND INTENTIONS IN RECENT US ELECTIONS”: THE ANALYTIC PROCESS ANDCYBER INCIDENT ATTRIBUTION (2017), https://www.dni.gov/files/documents/ICA_2017_01.pdf.
71

Id.
Andy Greenberg, The NSA Confirms It: Russia Hacked French Election‘Infrastructure,’ WIRED (May 9, 2017), https://www.wired.com/2017/05/nsa-directorconfirms-russia-hacked-french-election-infrastructure/. Earlier Russian cyber election
inference consisted of taking unfavorable websites off the internet, slowing down
access to them, or changing them. Andy Greenberg, Everything We Know About Russia’s
Election-Hacking Playbook, WIRED (June 9, 2017), https://www.wired.com/story/russiaelection-hacking-playbook/.
73
Andy Greenberg, Russian Hackers Are Using ‘Tainted’ Leaks to Sow Disinformation,
WIRED (May 25, 2017), https://www.wired.com/2017/05/russian-hackers-usingtainted-leaks-sow-disinformation/. During the Cold War, the Soviet Union madeconsiderable use of “active measures,” which a senior KGB official described as“clandestine actions designed to affect foreign governments, groups, and influential
individuals in ways that favored the objectives of Soviet policy and weakened the
opposition to them.” TENNENT H. BAGLEY, SPYMASTER: STARTLING COLD WAR
REVELATIONS OF A SOVIET KGB CHIEF 170 (2013). Active measures consisted ofreleasing public documents or facts embarrassing to Western governments orofficials. Id. They also involved disinformation, where facts were distorted, concealed,invented, or forged. Id. See also CHRISTOPHER ANDREW & VASILI MITROKHIN, THE SWORD
AND THE SHIELD: THE MITROKHIN ARCHIVE AND THE SECRET HISTORY OF THE KGB 234–46(1999) (describing active measures against J. Edgar Hoover, the FBI, U.S. SenatorHenry “Scoop” Jackson, National Security Adviser Zbigniew Brzezinski, and Ronald
Reagan, as well as other similar operations); DECEPTION OPERATIONS: STUDIES IN THE
EAST-WEST CONTEXT 1 (David A. Charters & Maurice A. J. Tugwell eds., 1990)(detailing the Soviet deception operation designed to falsely blame the AIDS72

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A survey of State practice reveals States also use cyber means to denyaccess to information. In 1988, a college student created one of the earliest computer viruses, the Morris Worm, to replicate itself on infected machines, slowing systems to a virtual halt until the virus could be re74
moved. More recent cyber denial techniques consist of denial of service(DOS) and distributed denial of service (DDOS) operations to generate
75
more traffic than service providers, networks, or nodes can handle. Service is restored easily when the operation ends, and effects can be avertedwith firewalls and sufficient bandwidth, but the political effects can beenormous and lasting. Although these events may be thought of as temporary and reversible, they can still be costly in terms of lost productivity
and clean-up. For example, a researcher estimated that the Morris Worm
caused between $100,000 and $10 million in losses even though no per76
manent hardware damage occurred. More difficult to estimate are thepolitical costs of a public’s loss of confidence in government capacity tosafeguard cyber infrastructure and guarantee free and functioning communications and information storage.
As in early cyber espionage cases, individual hackers were responsible for early Internet DOS events. The first notable events occurred in
1999, as pro-Serbian “patriotic hackers” denied access to U.S.
whitehouse.gov sites as well as U.S. Navy and NATO websites during op77
eration Allied Force. Chinese patriotic hackers similarly responded to78
the bombing of the Chinese embassy and later EP-3 collision. 1999 also
saw patriotic hackers intervene to deny access to and deface websites dur-

epidemic on biological weapons experiments carried out by the United States).
Western powers also leveraged deception and information operations, but the KGB
had considerably more freedom to tell lies, allowing it to create propaganda
quantitatively and qualitatively superior to the West. BAGLEY at 171; U.S. DEP’T OF
STATE, CONTEMPORARY SOVIET PROPAGANDA AND DISINFORMATION: A CONFERENCEREPORT (1985) (released Mar. 1987). The West, with its more open society, was also
more vulnerable to these active measures. DECEPTION OPERATIONS at 405.
74
GORDON CORERA, INTERCEPT: THE SECRET HISTORY OF COMPUTERS AND SPIES
135–40 (2015).
75
Large scale DDOS attacks frequently leverage botnets, which are networks ofhijacked, remotely controlled computers. See LIIS VIHUL ET AL., COOPERATIVE CYBER
DEFENCE CTR. OF EXCELLENCE, LEGAL IMPLICATIONS OF COUNTERING BOTNETS 2 (2012),
https://ccdcoe.org/sites/default/files/multimedia/pdf/VihulCzosseckZiolikowskiAa
smannIvanovBr%C3%BCggemann2012_LegalImplicationsOfCounteringBotnets.pdf.
76
GAO/IMTEC-89-57, supra note 46, at 17.
77
Jonathan Diamond, Early Patriotic Hacking, in A FIERCE DOMAIN: CONFLICT IN
CYBERSPACE, 1986 TO 2012, 137–38 (Jason Healey ed., 2013). Hackers had been
blocking DoD and NATO sites and defacing websites intermittently since 1994. Id. at
140.
78
Id. at 138–39. KENNETH GEERS, NATO SCI. & TECH. ORG., CYBERSPACE AND THE
CHANGING NATURE OF WARFARE 7, https://www.sto.nato.int/publications/STO%20
Meeting%20Proceedings/RTO-MP-IST-076/$MP-IST-076-KN.pdf.

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79

ing Israeli-Palestinian and India-Pakistan conflicts. In 2007, Estonia fell
victim to DDOS attacks when it began efforts to move a Soviet-era war
80
memorial. A pro-Kremlin youth group claimed responsibility for the Estonian incident as a “cyber defense” measure. The group had originallybeen created by the Kremlin and received occasional funding from it, but
it remained nominally independent because most of its funding camefrom business leaders in the private sector looking to ingratiate them81
selves with the government. Russian hacker groups are also thought tobe responsible for 300 defaced websites in Lithuania following the adoption of a new law prohibiting the public display of Soviet and Nazi insignia, as well as playing their respective anthems at public gatherings in82
2008. In these examples, States used—or at least acquiesced to—private
citizens denying Internet services in other countries often to serious political effect.
Difficulties arising from efforts to identify the sources of these incidents frustrate legal analysis and political responses. For example, Kyrgyzstan faced a country-wide DDOS attack generated from Russia in 2009,
but experts are unsure whether the attack was directed by the Russian
government to motivate the Kyrgyz to close a U.S. airbase quickly, or if
the Kyrgyzstan government itself was trying to silence opponents to the83base closure. More recently, a group calling itself “Izz ad-Din al-Qassam
79

Diamond, supra note 77, at 145–49. KENNETH GEERS, COOPERATIVE CYBER
DEFENCE CTR. OF EXCELLENCE, 1 PANDEMONIUM: NATION STATES, NATIONAL SECURITY,
AND THE INTERNET 7, 10 (2014), https://ccdcoe.org/publications/TP_Vol1No1_
Geers.pdf.
80

ENEKEN TIKK ET AL., COOPERATIVE CYBER DEFENCE CTR. OF EXCELLENCE,
INTERNATIONAL CYBER INCIDENTS: LEGAL CONSIDERATIONS 16 (2010), https://
ccdcoe.org/publications/books/legalconsiderations.pdf; Andreas Schmidt, The Estonian
Cyber Attacks, in A FIERCE DOMAIN: CONFLICT IN CYBERSPACE, 1986 TO 2012, 174 (Jason
Healey ed., 2013).
81
Noah Shachtman, Kremlin Kids: We Launched the Estonian Cyber War, WIRED(Mar. 11, 2009), https://www.wired.com/2009/03/pro-kremlin-gro/; Steven Lee
Myers, Youth Groups Created by Kremlin Serve Putin’s Cause, N.Y. TIMES (July 8, 2007),
http://www.nytimes.com/2007/07/08/world/europe/08moscow.html. Russia defines“net NGOs” as “internet combatants who as a rule declare the absence of any linkwith State bodies but which as a rule are financed by them, or by other entities.” KEIR
GILES, “INFORMATION TROOPS” – A RUSSIAN CYBER COMMAND?, (COOPERATIVE CYBER
DEFENCE CTR. OF EXCELLENCE) 54 (Christian Czosseck, Enn Tyugu, & Tom Wingfieldeds., 2011), https://ccdcoe.org/sites/default/files/multimedia/pdf/InformationTroops
ARussianCyberCommand-Giles.pdf.
82
83

TIKK ET AL., supra note 80, at 53–54.
Ward Carroll, Russia Now 3 and 0 in Cyber Warfare, MILITARY.COM (Jan. 30,2009),

https://www.defensetech.org/2009/01/30/russia-now-3-and-0-in-cyber-warfare/#ixzz2kC8saBkH+; Nathan Hodge, Russian ‘Cyber Militia’ Takes Kyrgyzstan Offline?, WIRED(Jan. 28, 2009), https://www.wired.com/2009/01/cyber-militia-t/; Andrzej
Kozlowski, Comparative Analysis of Cyberattacks on Estonia, Georgia and Kyrgyzstan, 3 EUR.
SCI. J. 237, 240–41 (2014); JOSE NAZARIO, COOPERATIVE CYBER DEFENCE CTR. OF
EXCELLENCE, POLITICALLY MOTIVATED DENIAL OF SERVICE ATTACKS 8–9 (2009),

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Cyber Fighters” claimed responsibility for launching DOS operations
84
against U.S. banks in 2013. United States government officials, however,85
believe the group to be a cover for the Iranian government. Iran has
denied responsibility, citing its respect for international law and legal
86
prohibitions on targeting economic and financial institutions. Similarly,
when the Syrian Electronic Army claimed responsibility for DOS attacks
and a spear-phishing campaign to compromise the computer systems of
the U.S. government and other entities in support of the Syrian Government and President Bashar al-Assad, U.S. officials were reported to be87
lieve that they were actually Iranian. The U.S. later indicted individuals
residing in Syria and Germany for the Syrian Electronic Army’s activi88
ties. Still, absent reliable attribution, the full custom and practice of nations in cyberspace is relatively unknown in public circles.
To the degree attribution is possible, States appear to have resorted
to temporary and reversible cyber measures in conjunction with use offorce. In 2007, for example, Israel is thought to have used cyber technology to suppress Syrian air defense systems during an airstrike on a sus89
pected nuclear reactor. When Russia and Georgia went to war in August
https://ccdcoe.org/sites/default/files/multimedia/pdf/12_NAZARIO%20Politically%
20Motivated%20DDoS.pdf.
84

Nicole Perlroth & Quentin Hardy, Bank Hacking Was the Work of Iranians,
Officials Say, N.Y. TIMES (Jan. 8, 2013), http://www.nytimes.com/2013/01/09/
technology/online-banking-attacks-were-work-of-iran-us-officials-say.html.
85
Id.
86
Id. For more on the legal issues involved in the targeting of economic and “warsustaining” entities, see WILLIAM BOOTHBY, THE LAW OF TARGETING 106 (2012); Burrus
M. Carnahan, The Law of Air Bombardment in its Historical Context, 17 A.F. L. REV. 39, 42(1975); Janina Dill, The 21st-Century Belligerent’s Trilemma, 26 EUR. J. INT’L L. 83, 95(2015); Yoram Dinstein, Legitimate Military Objectives Under the Current Jus in Bello, 78
INT’L L. STUD. 139, 145 (2002); Ryan Goodman, Comment, Targeting ‘War-Sustaining’
Objects in Non-International Armed Conflict, 110 AM. J. INT’L L. 663 (2016); Theodore T.
Richard, Nuclear Weapons Targeting: The Evolution of Law and U.S. Policy, 224 MIL. L.
REV. 862, 954–61 (2016).
87
David E. Sanger, Syria War Stirs New U.S. Debate on Cyberattacks, N.Y. TIMES (Feb.
24, 2014), https://www.nytimes.com/2014/02/25/world/middleeast/obama-worriedabout-effects-of-waging-cyberwar-in-syria.html.
88
Press Release, U.S. Dep’t of Justice, Computer Hacking Conspiracy Charges
Unsealed Against Members of Syrian Electronic Army (Mar. 22, 2016),
https://www.justice.gov/opa/pr/computer-hacking-conspiracy-charges-unsealedagainst-members-syrian-electronic-army. The hacker residing in Germany was a Syrian
National who was later extradited to the U.S. and pleaded guilty to felony charges ofconspiring to receive extortion proceeds and conspiring to unlawfully accesscomputers. Press Release, U.S. Dep’t of Justice, Syrian Man Affiliated with Syrian
Electronic Army Pleads Guilty (Sept. 28, 2016), https://www.justice.gov/usaoedva/pr/syrian-man-affiliated-syrian-electronic-army-pleads-guilty.
89
Lewis Page, Israeli Sky-Hack Switched Off Syrian Radars Countrywide, THE
REGISTER (Nov. 22, 2007), https://www.theregister.co.uk/2007/11/22/israel_air_raid_syria_hack_network_vuln_intrusion/; Sharon Weinberger, How Israel Spoofed Syria’s

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2008, Russia not only defaced Georgian websites, but also blocked Georgia’s ability to communicate through the Internet and shut down its
90
banking sector. The Russian hackers were not State government em91
ployees, but the Kremlin was thought to have actively coordinated them.
Sporadic DDOS attacks and website defacements have been attributed topatriotic hackers from Russia and the Ukraine after Ukrainian protestors
drove out a pro-Russia president, Russia’s occupation of the Crimean
92
Peninsula, and the beginning of armed conflict in eastern Ukraine. The
Russo-Ukrainian conflict also saw deployment of advanced cyber espionage tools, selective leaking of stolen confidential information, cutting ofinternet cables, attempted interference in the Ukrainian election result
reporting, and Russian employment of hundreds of “trolls”—operatives
posting pro-Russian propaganda on social media to influence domestic
93
and international audiences.
The gravity of cyber operations in the Russo-Ukrainian conflict wassignificantly elevated on December 23, 2015, when hackers denied elec94
trical power to a significant segment of Ukraine. As part of this effort,
hackers rewrote code on servers to render the devices permanently use95
less. During the conflict, hackers also permanently erased terabytes of96
data from the Ukrainian finance ministry. In 2017, the NotPetya cyberattack became the most costly in history as malware, which permanently
encrypted computer systems, spilled over from financial and energy sec97
tor targets in Ukraine to computers in 60 countries. These represent the
Air Defense System, WIRED (Oct. 4, 2007), https://www.wired.com/2007/10/how-israelspoo/; Ward Carroll, Israel’s Cyber Shot at Syria, MILITARY.COM (Nov. 26, 2007),https://www.military.com/defensetech/
2007/11/26/israels-cyber-shot-at-syria.
90
Andreas Hagen, The Russo-Georgian War 2008, in A FIERCE DOMAIN: CONFLICT IN
CYBERSPACE, 1986 TO 2012, 196–98 (Jason Healey ed. 2013); TIKK ET AL., supra note 80,
at 69–71.
91
TIKK ET AL., supra note 80, at 75; Jason Healey, How to Beat a Russian Cyber
Assault on Ukraine, NEW ATLANTICIST (Mar. 3, 2014), http://www.atlanticcouncil.
org/blogs/new-atlanticist/how-to-beat-a-russian-cyber-assault-on-ukraine. Russian writers
perceived that their cyber, or information, campaign in the conflict performed poorly
and was in need of improvement. Giles, supra note 13, at 46.
92
NATO COOPERATIVE CYBER DEFENCE CTR. OF EXCELLENCE, CYBER WAR INPERSPECTIVE: RUSSIAN AGGRESSION AGAINST UKRAINE 8 (Kenneth Geers ed., 2015).
93
Id. at 11.
94
Andy Greenberg, How an Entire Nation Became Russia’s Test Lab for Cyberwar,
WIRED (June 20, 2017), https://www.wired.com/story/russian-hackers-attack-ukraine/.
95
Id. More recently, the malware used to destroy Ukrainian electrical power
generating systems was found on similar infrastructure in the U.S. Id.
96
Id.
97
NATO Cooperative Cyber Defence Ctr. of Excellence, NotPetya and WannaCry
Call for a Joint Response from International Community (June 20, 2017) https://
ccdcoe.org/notpetya-and-wannacry-call-joint-response-international-community.html.
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final broad category of unfriendly multinational cyber relations: destructive cyber operations.
State cyber operations have now matured beyond mere espionage
and temporary disruptions of service. State actions intended to destroy
systems and wipe data from cyber infrastructure located on other States’
territory have been uncovered in the last decade. Destructive cyber operations often involve “application-level attacks” where an attacker takes
98
over a compromised machine from a remote location. Apart from the
Russo-Ukrainian conflict, these destructive attacks have not been associated with a conventional armed conflict. In 2010, researchers discovereda highly complex worm, later code named Stuxnet. Allegedly an American and Israeli creation, Stuxnet caused permanent physical damage to99
Iranian uranium enrichment gas centrifuges. The worm ultimately rendered nearly a thousand Iranian centrifuges useless. Later, in spring of
2012, Iran’s oil production was targeted by the “Wiper” virus. Wiper systematically scrubbed hard drives clean, deleting the malware’s code
100
along with it. Subsequently, Iran has been suspected of destructive(June 28, 2017) https://www.wired.com/story/petya-ransomware-ukraine/. The
United States, United Kingdom, and Denmark recently attributed the attack to theRussian military. The White House, Statement from the Press Secretary, (Feb. 15,2018) https://www.whitehouse.gov/briefings-statements/statement-press-secretary25/; Andy Greenberg, The White House Blames Russia for NotPetya, the ‘Most Costly
Cyberattack In History’, WIRED (Feb. 15, 2018) https://www.wired.com/story/whitehouse-russia-notpetya-attribution/.
98
KARLIS PODINS & PABLO ANDREU BARASOAIN, NATO COOPERATIVE CYBER
DEFENCE CTR. OF EXCELLENCE, APPLICATION LEVEL ATTACKS STUDY, 4, 19 (2012),
https://ccdcoe.org/sites/default/files/multimedia/pdf/PodinsBarasoain2012_
ApplicationLevelAttacksStudy.pdf.
99
Ellen Nakashima & Joby Warrick, Stuxnet Was Work of U.S. and Israeli Experts,
Officials Say, WASH. POST (June 2, 2012), https://www.washingtonpost.com/world/
national-security/stuxnet-was-work-of-us-and-israeli-experts-officials-say/2012/06/01/
gJQAlnEy6U_story.html?utm_term=.6a619d322841. Stuxnet was two distinct computerworms. Ralph Langner, Stuxnet’s Secret Twin, FOREIGN POL’Y (Nov. 19, 2013),
http://foreignpolicy.com/2013/11/19/stuxnets-secret-twin/. It was also part of alarger effort against Iran’s nuclear weapon program. Chris Morton, Stuxnet, Flame,and Duqu – the Olympic Games, in A FIERCE DOMAIN: CONFLICT IN CYBERSPACE, 1986 TO
2012 212 (Jason Healey ed. 2013).
100
Thomas Erdbrink, Facing Cyberattack, Iranian Officials Disconnect Some Oil
Terminals From Internet, N.Y. TIMES (Apr. 23, 2012), http://www.nytimes.com/2012/04/24/world/middleeast/iranian-oil-sites-go-offline-amid-cyberattack.html; Kim Zetter,
Wiper Malware That Hit Iran Left Possible Clues of its Origins, WIRED (Aug. 29, 2012),
https://www.wired.com/2012/08/wiper-possible-origins/.

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cyber operations against Aramco, a Saudi state oil company, RasGas,
102
103
a Qatari natural gas firm, and the U.S.-based Sands Casino.
As with cyber espionage, cyber sabotage and attacks are not the exclusive province of strong States. North Korea is thought to havelaunched several destructive cyber assaults. It is considered responsiblefor destructive attacks on South Korean banks and television broadcasters
104
in 2013. A year later, North Korea reportedly used cyber means todamage Sony computers and destroy data located within the UnitedStates after the company refused to pull The Interview, a film that ridi105
culed the North Korean leader. In 2017, North Korea allegedly deployed the WannaCry computer worm affecting as many as 300,000 people, businesses, and organizations in 150 countries, encrypting their
106
computers and demanding ransom payments to unlock them. North
Korea may not reflect prevailing ideals of international relations or legal
101

Nicole Perlroth, In Cyberattack on Saudi Firm, U.S. Sees Iran Firing Back, N.Y.
TIMES (Oct. 23, 2012), http://www.nytimes.com/2012/10/24/business/global/
cyberattack-on-saudi-oil-firm-disquiets-us.html.
102
Doha News Team, US Officials: Cyberattacks on Aramco, RasGas May Have Come
From Iran, DOHA NEWS (Oct. 14, 2012), https://dohanews.co/us-officials-cyberattackson-aramco-rasgas-may-have/; Kim Zetter, Qatari Gas Company Hit with Virus in Wave ofAttacks on Energy Companies, WIRED (Aug. 30, 2012), https://www.wired.com/2012/08/hack-attack-strikes-rasgas/.
103
Jose Pagliery, Iran Hacked an American Casino, U.S. Says, CNN (Feb. 27, 2015),
http://money.cnn.com/2015/02/27/technology/security/iran-hackcasino/index.html; BARBARA SLAVIN & JASON HEALEY, BRENT SCOWCROFT CTR. ON INT’L
SECURITY S. ASIA CTR, IRAN: HOW A THIRD TIER CYBER POWER CAN STILL THREATEN THE
UNITED STATES, ATLANTIC COUNSEL, 2 (2013), http://www.atlanticcouncil.org/images/
publications/iran_third_tier_cyber_power.pdf.
104
Symantec Security Response, Four Years of DarkSeoul Cyberattacks Against South
Korea Continue on Anniversary of Korean War, SYMANTEC OFFICIAL BLOG (June 26, 2013),
https://www.symantec.com/connect/blogs/four-years-darkseoul-cyberattacks-againstsouth-korea-continue-anniversary-korean-war.
105
Peter Elkind, Sony Pictures: Inside the Hack of the Century, Part I, FORTUNE.COM(June 25, 2015), http://fortune.com/sony-hack-part-1/; Jim Finkle, Exclusive: FBI
Warns of ‘Destructive’ Malware in Wake of Sony Attack, REUTERS (Dec. 1, 2014),
http://www.reuters.com/article/us-sony-cybersecurity-malware-idUSKCN0JF3FE20141202;
Kim Zetter, Sony Got Hacked Hard: What We Know and Don’t Know So Far, WIRED (Dec 3,2014), https://www.wired.com/2014/12/sony-hack-what-we-know/.
106
Ellen Nakashima, The NSA Has Linked the WannaCry Computer Worm to North
Korea, WASH. POST (June 14, 2017), https://www.washingtonpost.com/world/nationalsecurity/the-nsa-has-linked-the-wannacry-computer-worm-to-north-korea/2017/06/14/
101395a2-508e-11e7-be25-3a519335381c_story.html?tid=ss_tw&utm_term=.26286673bc39.

According to the computer security firm Kasperski Lab, Russia suffered the most
attacks from the WannaCry attack, followed by computers in Ukraine, India, andTaiwan. Andrew E. Kramer, Russia, This Time the Victim of a Cyberattack, Voices Outrage,
N.Y. TIMES (May 14, 2017), https://www.nytimes.com/2017/05/14/world/europe/
russia-cyberattack-wannacry-ransomware.html; Alex Perekalin, WannaCry: Are You
Safe?, KASPERSKY LAB DAILY (May 13, 2017), https://www.kaspersky.com/blog/
wannacry-ransomware/16518/.

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behavior. State responses to its behavior, however, may be indicative of
the present and future international legal climate.
States have made nascent efforts to rein in these cyber operations.
The United States and China concluded a framework agreement to refrain from “cyber-enabled theft of intellectual property, including trade
secrets or other confidential business information, with the intent of
107
providing competitive advantages to companies or commercial sectors.”
A 2015 Communiqué issued by world leaders attending the 20 Antalya
Summit similarly proclaimed, “no country should conduct or support
ICT-enabled theft of intellectual property, including trade secrets or other confidential business information, with the intent of providing competitive advantages to companies or commercial sectors” and “all statesshould abide by norms of responsible state behavior” in using infor108
mation and communication technologies. Despite the apparent détente relating to commercial espionage, malicious and exploitive cyber
operations are a prominent and persistent feature of twenty-first-century
international relations.
Based on State practice over several decades, examples of malicious
cyber activities appear to fall into three broad categories: (1) espionage
and information release, (2) connectivity disruption and information
denial, and (3) data and hardware destruction. Apart from interceptionof or interference with wireless transmissions, malicious cyber activities
generally take place on routers, servers, computers, and associatedequipment located on territory within the jurisdiction of a State. Spyware,
malware, or other programming tools must be inserted on this equipment and either disable it or change its intended function. These practices increasingly challenge traditional understandings of the limits on
State activity attendant to territorial sovereignty during times of peace.
An examination of the history, development, and current state of territorial sovereignty illuminates both the legal context for emerging cyber operations and suggests that States are rapidly approaching a critical crossroads in the relationship between cyberspace and international law.
III. THE INTERNATIONAL LAW OF TERRITORIAL SOVEREIGNTY
It is widely acknowledged that State cyber operations have potential
to amount to grave violations of international law. Popular attention to
cyber conflict has long focused on catastrophic events—so-called cyber
Pearl Harbors—sudden, broad-scale, and debilitating attacks on critical

107

Press Release, The White House, FACT SHEET: President Xi Jinping’s State
Visit to the United States (Sept. 25, 2015), https://obamawhitehouse.archives.
gov/the-press-office/2015/09/25/fact-sheet-president-xi-jinpings-state-visit-unitedstates.
108
G20 LEADERS’ COMMUNIQUÉ, supra note 19, at 6.

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infrastructure perhaps resulting in human casualties. However, as thepreceding accounts perhaps indicate, the far more prevalent form ofState-sponsored cyber exploitation involves consequences below thethresholds of use of force or even the coercive element required by the110
principle of non-intervention. Despite their comparatively slight impact, these operations do not take place in a legal vacuum. Low-intensity
cyber operations implicate important and long-standing international-law
norms. And despite predating cyberspace by, in some cases, centuries, extant norms of public international law bear directly on State conduct.
One such example is the principle and associated rule respecting territorial sovereignty.
No treaty comprehensively defines territorial sovereignty or expresses it as a stand-alone international legal concept. It is chiefly a creature ofcustomary international law derived from the general and consistent111
practices of States, carried out from a sense of legal duty or obligation.
All the same, territorial sovereignty has deep roots in international law
and violations of those rules have long been regarded as breaches of legal
obligations. Although often expressed as a vague principle, guideline, orframework, the legal history of sovereignty clearly establishes territorial
sovereignty as a legally binding rule of conduct between States.
Attempting to express the customary law of territorial sovereignty,
the American Law Institute’s Third Restatement of Foreign Relations Law observes that sovereignty “implies a state’s lawful control over its territory
generally to the exclusion of other states, authority to govern in that ter112
ritory, and authority to apply law there.” The comment’s resort to thequalifying terms “implies” and “generally” indicates some of the equivocation that surrounds expressions of territorial sovereignty. The Restatement echoes somewhat stronger phrasing in a 1928 international arbitration decision by Max Huber:

109

See, e.g., SEGAL, supra note 25, at 6 (recounting warnings by then-Secretary of
Defense Leon Panetta concerning the threat of sudden, debilitating cyber operations
against critical U.S. infrastructure).
110
See Terry D. Gill, Non-Intervention in the Cyber Context, in PEACETIME REGIME FOR
STATE ACTIVITIES IN CYBERSPACE: INTERNATIONAL LAW, INTERNATIONAL RELATIONS ANDDIPLOMACY 218 (Katharina Ziolkowski ed., 2013); Catherine Lotrionte, CounteringState-Sponsored Cyber Economic Espionage Under International Law, 40 N.C. J. INT’L L. &COM. REG. 443, 492–509 (2015); Sean Watts, Low-Intensity Cyber Operations and thePrinciple of Non-Intervention, in CYBERWAR: LAW AND ETHICS FOR VIRTUAL CONFLICTS 250(Jens David Ohlin et al. eds., 2015).
111
See Statute of the International Court of Justice, art. 38(1)(b), June 26, 1945,
59 Stat. 1055, 33 U.N.T.S. 993; North Sea Continental Shelf Cases, 1969 I.C.J. Rep. 3,
22, ¶ 19; RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES §102 (1987).
112
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 206
cmt. b (1987).

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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 exclusion of any other State, the functions of aState. The development of the national organisation of States during the last few centuries and, as a corollary, the development of international law, have established this principle of the exclusivecompetence of the State in regard to its own territory in such a way
as to make it the point of departure in settling most questions thatconcern international relations.113

The international relations scholar Stephen Krasner echoes the emphasis on exclusivity. He defines “Westphalian sovereignty” as a “politicalorganization based on the exclusion of external actors from authority
114
structures within a given territory.” Krasner explains, “Westphalian sovereignty is violated when external actors influence or determine domestic
115
authority structures.” Krasner and others have questioned the historicalaccuracy of associating this norm of State behavior with the 1648 Peace of116
Westphalia. He concedes Westphalian or, more precisely, territorial
sovereignty has origins in the sixteenth and seventeenth centuries, butemphasizes that the concept has evolved considerably, both in practiceand in law. A brief look at this historical development illustrates not only
its origins, but also how sovereignty matured into a primary rule of inter117
national law.
The series of treaties that formed the Peace of Westphalia, which
ended the Thirty Years War, is regarded as the starting point for the113

Island of Palmas (U.S. v. Neth.), 2 R.I.A.A. 829, 838 (Perm. Ct. Arb. 1928).
STEPHEN D. KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY 3–4 (1999). Krasner
identifies three other uses of the term sovereignty: international legal sovereignty,
which deals with recognition between states; domestic sovereignty, which deals withthe formal organization of political authority within a state; and interdependence
sovereignty, which deals with “the ability of public authorities to regulate the flow of
information, ideas, goods, people, pollutants, or capital across the borders of theirstate.” Id.
115
Id. at 20.
116
Id.; Michael Axworthy & Patrick Milton, The Myth of Westphalia, FOREIGN AFF.
(Dec. 22, 2016), https://www.foreignaffairs.com/articles/europe/2016-12-22/myth-west
phalia; Andreas Osiander, Sovereignty, International Relations, and the Westphalian Myth,55 INT’L ORG. 251, 261 (2001).
117
Primary rules of international law establish obligations for a State, whilesecondary rules are “the general conditions under international law for the State to
be considered responsible for wrongful actions or omissions, and the legal
consequences which flow therefrom.” INT’L L. COMM’N, DRAFT ARTICLES ONRESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS, WITH COMMENTARIES
31 (2001), http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.
pdf.
114

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modern system of international relations and law. The Peace of Westphalia created a system of legally equal States, reliant principally on abalance of political, diplomatic, and military power to maintain stability
119
but also based on observance of international legal norms. The Peaceof Westphalia was not entirely novel. It built on foundations of sovereignty introduced by the 1555 Peace of Augsburg, which recognized distinct
States wherein sovereign rulers determined State religion—cuius region
120
eius religio. Ultimately, the religious settlement of the Peace of Augsburg, and the notion that political unity relied on religious unity, col121
lapsed under political and sectarian dissent. The Westphalian solution,
addressing in large part the States within the Holy Roman Empire, clarified contentious religious rights and adjusted territorial arrangementswith a view toward a more durable peace. For legal purposes and for
purposes of understanding its contribution to the modern system ofStates, Westphalia formalized the rights of the States, declaring:[T]o prevent for the future any Differences arising in the Politick
State, all and every one of the Electors, Princes and States of the
Roman Empire, are so establish’d and confirm’d in their antient
Rights, Prerogatives, Libertys, Privileges, free exercise of Territorial
Right, as well Ecclesiastick, as Politick Lordships, Regales, by virtueof this present Transaction: that they never can or ought to be molested therein by any whomsoever upon any manner of pretence.122

118

HENRY WHEATON, HISTORY OF THE LAW OF NATIONS IN EUROPE AND AMERICA;
FROM THE EARLIEST TIMES TO THE TREATY OF WASHINGTON, 1842 69 (1845); Gross, supranote 39, at 21; HENRY KISSINGER, WORLD ORDER 2–3 (2014).
119
Gross, supra note 39, at 29. The “equal states” were those within the territoryof the Holy Roman Empire which were equally granted legal rights within the
Empire, including, “political autonomy . . . , [the] right of participating in decisions
on major Imperial policy areas, concluding alliances with other Imperial Estates andforeign powers, maintaining armies, waging war, and making peace.” Michael
Axworthy et al., Series Report: Report on Phase One of the Seminar Series and Project “AWestphalia for the Middle East,” UNIVERSITY OF CAMBRIDGE, DEPARTMENT OF POLITICS AND
INTERNATIONAL STUDIES FORUM ON GEOPOLITICS (Oct. 13, 2016), https://www.coggs.
polis.cam.ac.uk/news/westphalia-report. The Swiss Confederation and the United
Provinces of the Netherlands were recognized as independent States within Europe.
PHILLIP BOBBITT, THE SHIELD OF ACHILLES: WAR, PEACE, AND THE COURSE OF HISTORY
507 (2002).
120
BOBBIT, supra note 119, at 487.
121
See Gordon A. Christenson, “Liberty of the Exercise of Religion” in the Peace ofWestphalia, 21 TRANSNAT’L L. & CONTEMP. PROBS. 721, 736 (2013).
122
Treaty of Westphalia: Peace Treaty Between the Holy Roman Emperor and the King ofFrance and Their Respective Allies, YALE LAW SCH. AVALON PROJECT art. LXIV, http://
avalon.law.yale.edu/17th_century/westphal.asp. The Emperor retained the authority
to intervene within the German states, who were not fully sovereign in the modern
sense, but the Emperor could not act arbitrarily because France and Sweden
guaranteed the rights of Catholics and Protestants, respectively. BRENDAN SIMMS,EUROPE: THE STRUGGLE FOR SUPREMACY FROM 1453 TO THE PRESENT 43 (2013).

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and,
the free Towns, and other States of the Empire, shall have decisive
Votes; they shall, without molestation, keep their Regales, Customs,
annual Revenues, Libertys, Privileges to confiscate, to raise Taxes,
and other Rights, lawfully obtain’d from the Emperor and Empire,or enjoy’d long before these Commotions, with a full Jurisdiction
within the inclosure of their Walls, and their Territorys . . . .123

Territorial sovereignty within the Empire recognized States withequal rights for individual and collective security, so long as “[a]lliances
be not against the Emperor, and the Empire, nor against the Publick
124
Peace.” The Peace of Westphalia also established common restrictions
on these States. Under its terms, they were forbidden to interfere with or“molest[]” one another, nor could they legally jeopardize the general125
peace without cause.
The rudimentary legal foundation laid by the Peace of Westphalia
soon matured into a far more intricate system of relationships and rules
between States, including firm notions of territorial sovereignty. No jurist’s description of this burgeoning legal system was more influential
than that of the seventeenth-century Dutch legal scholar, Hugo Groti126
us. His account of international law, based on an underlying “naturallaw,” drew on a comprehensive study of the customs and practices of nations, supported and explained by opinions of philosophers and other127
experts. Grotius envisioned a juridical order of State entities possessing
fundamental rights and freedoms, but lacking a higher or centralized au128
thority. Grotius described the sovereign State as one “whose Acts are
not subject to another’s Power, so they cannot be made void by any other129
human Will.” At the same time, he noted that every State had the duty
to serve interests of the wider community of States as a whole in accord130
ance with rules they could agree upon: the “Law of Nations.”
The first article of the Treaty of Westphalia reflected this duty when
it observed, “each Party shall endeavour to procure the Benefit, Honour
and Advantage of the other; that thus on all sides they may see this Peace
123

Treaty of Westphalia, supra note 122, at art. LXVII.
Id. at art. LXV.
125
Id. at art. LXVII.
126
Ove Bring, The Westphalian Peace Tradition in International Law: From Jus ad
Bellum to Jus contra Bellum, 75 INT’L L. STUD. 57, 58 (2000). King Gustavus Adolphusof Sweden, one of the major combatants in the Thirty Years War, is reported to havecarried a volume of Grotius everywhere. CICELY V. WEDGWOOD, THE THIRTY YEARS WAR
261 (1938).
127
BOBBIT, supra note 119, at 513–14; Bring, supra note 126, at 58–59.
128
BOBBIT, supra note 119, at 508; Bring, supra note 126, at 58–59.
129
HUGO GROTIUS, THE RIGHTS OF WAR AND PEACE, BOOK I 259 (Richard Tuck ed.,2005).
130
Id. at 94; BOBBIT, supra note 119, at 517.
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and Friendship in the Roman Empire, and the Kingdom of France flour131
ish, by entertaining a good and faithful Neighbourhood.” In support oftheir duty to the collective body of States, Grotius deduced States should
refrain from interfering with the territorial dominion of other States.
Although the Peace of Westphalia hardly prevented such interferences,or even war (in fact, the Grotian system licensed warfare to enforce State
rights), the international, legal, and political concepts it created en132
dured.
Admittedly, the Westphalian model and the supporting Grotian legal
framework did not secure universal support. Notably, Arman Jean duPlessis, Cardinal de Richelieu, the First Minister of France from 1624 to1642, promulgated the concept of raison d’état: that the well-being of aState justified whatever means were employed to further it; national secu133
rity interests supplanted morality. Another contemporary of Grotius,
the political philosopher Thomas Hobbes, denied that States owed any
international duties to one another. Hobbes insisted States had only aduty to obey the “law of nature” and to tend to the safety and best inter134
ests of their own people. Hobbes’s descriptive characterization of international relations has been associated with present-day international
135
relations “realism.” In legal terms, a purely Hobbesian world views
skeptically any legal duty to refrain from interfering with another State136
inside its territorial jurisdiction. To the extent any such norm existed, itwould yield entirely to the perceived needs of the sovereign.
The German legal scholar Samuel Pufendorf bridged some of thedifferences between Hobbesian, self-interested realism and the coopera-

131

Treaty of Westphalia, supra note 122, at art. I.
Bring, supra note 126, at 65.
133
HENRY KISSINGER, DIPLOMACY 58–59 (1994). When Grotius faced financial
hardships, Richelieu presented him with tempting employment opportunities if
Grotius would agree to completely serve French interests. HAMILTON VREELAND, JR.,HUGO GROTIUS: THE FATHER OF THE MODERN SCIENCE OF INTERNATIONAL LAW 178–79(1917). Grotius declined, explaining, “I must adhere to my former way of thinking.”
Id. at 179. Richelieu is considered the father of the modern state system while Grotius
is considered the father of international law.
134
THOMAS HOBBES, THE ESSENTIAL LEVIATHAN 188–89 (Nancy A. Stanlick ed.,2016).
135
EDWARD HALLETT CARR, THE TWENTY YEARS’ CRISIS 1919–1939: AN
INTRODUCTION TO THE STUDY OF INTERNATIONAL RELATIONS 153 (1949); W. Julian
Korab-Karpowicz, Political Realism in International Relations, STANFORD ENCYCLOPEDIA OF
PHILOSOPHY (July 26, 2010), https://plato.stanford.edu/entries/realism-intl-relations/.
136
Hans J. Morgenthau, To Intervene or Not to Intervene, 45 FOREIGN AFF. 425, 425–
26 (1967); Hans J. Morgenthau, Positivism, Functionalism, and International Law, 34 AM.
J. INT’L L. 260, 264–65 (1940); KENNETH H. WALTZ, THEORY OF INTERNATIONAL
POLITICS 103 (1979); Stephen D. Krasner, Realist Views of International Law, 96 AM.
SOC’Y INT’L L. PROC. 265, 268 (2002); Kenneth N. Waltz, Structural Realism after the Cold
War, 25 INT’L SECURITY 5, 13, 27 (2000).
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tive, Grotian society of nations. Like Hobbes, Pufendorf found no difference between the law of nations and law of nature. However, heviewed Hobbes’s characterization of the law of nature as unreasonably
harsh. Pufendorf expressed a duty to institute a broader political society
138
for collective security. As for the concept of sovereignty, Pufendorf detected frequent misuse of the term. In Pufendorf’s view, sovereignty
should properly apply almost exclusively to people. Sovereignty, to theextent it applied to territory at all, merely signified a requirement of consent to persons residing within the sovereign’s dominion. He explained,“and they who come to sojourn there only for a time, are, during that
139
Space, obliged to acknowledge his Jurisdiction.” To Pufendorf’s mind,
no entity had power to interfere with a sovereign’s rights to a place under140
his dominion. He may not have embraced the term “territorial sovereignty,” but Pufendorf clearly articulated the State’s authority to control
and set rules for its territory and its broader duty not to molest anotherState’s rights within its dominion.
Grotius and Pufendorf remained highly influential in these nascentand formative stages of international law. However, the most important
contributor to early understandings of territorial sovereignty may have141
been the eighteenth-century Swiss Diplomat Emer de Vattel. A widely
read and acknowledged authority on international law, Vattel offered a142
cosmopolitan vision of international law. Where some of his Swiss contemporaries favored independent, Hobbesian approaches to international relations and law, Vattel described a collective, even collaborative
community of States. Although he explained, “[e]very nation that governs itself . . . without dependence on any foreign power, is a sovereign
143
state,” he emphasized each State is obligated to cultivate peace with
144
other States and avoid disturbing that peace. Vattel further detailed
rights and obligations of States relating to the national domain, which he145
defined as the State’s territories and rights. He explained:

137
David Boucher, Resurrecting Pufendorf and Capturing the Westphalian Moment, 27
REV. OF INT’L STUD. 557, 565 (2001).
138
SAMUEL PUFENDORF, OF THE LAW OF NATURE AND NATIONS 632 (Basil Kennett
trans., 4th ed. 1729); Boucher, supra note 137, at 565–66.
139
PUFENDORF, supra note 138, at 396.
140
Id.
141
Jesse S. Reeves, The Influence of the Law of Nature Upon International Law in the
United States, 3 AM. J. INT’L L. 547, 549 (1909).
142
Id.; Charles G. Fenwick, The Authority of Vattel, 7 AM. POL. SCI. REV. 395, 395(1913); Brian Richardson, The Use of Vattel in the American Law of Nations, 106 AM. J.
INT’L L., 547, 570 (2012).
143
EMER DE VATTEL, THE LAW OF NATIONS 83 (Béla Kapossy & Richard Whatmore
eds., 2008) (emphasis in original).
144
Id. at 652–53.
145
Id. at 302.

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The sovereignty united to the domain establishes the jurisdictionof the nation in her territories, or the country that belongs to her.
It is her province, or that of her sovereign, to exercise justice in all
the places under her jurisdiction, to take cognisance of the crimes
committed, and the differences that arise in the country.
Other nations ought to respect this right.146

Vattel expanded on the importance of territorial sovereignty and described the resemblance of a primary rule prohibiting violations of sovereignty:
We should not only refrain from usurping the territory of others;
we should also respect it, and abstain from every act contrary to therights of the sovereign: for a foreign nation can claim no right in it.
We cannot then, without doing an injury to a state, enter its territories with force and arms in pursuit of a criminal, and take him fromthence. This would at once be a violation of the safety of the state,
and a trespass on the rights of empire or supreme authority vested
in the sovereign. This is what is called a violation of territory; andamong nations there is nothing more generally acknowledged as an
injury that ought to be vigorously repelled by every state that would
not suffer itself to be oppressed. We shall make use of this principle
in speaking of war, which gives occasion for many questions on therights of territory.
The sovereign may forbid the entrance of his territory either toforeigners in general, or in particular cases, or to certain persons,or for certain particular purposes, according as he may think it advantageous to the state. There is nothing in all this, that does notflow from the rights of domain and sovereignty: every one is obliged
to pay respect to the prohibition; and whoever dares to violate it,
incurs the penalty decreed to render it effectual.147

Thus, the writings of Grotius, Pufendorf, and Vattel established anearly framework regulating how nations ought to interact with one another. Based on studies of history and religion, they documented rules
for interactions between sovereign States, each the supreme authorities
over their own territories and within their respective jurisdictions. These
rules amounted to the foundation of international law in Europe andNorth America. They also identified early legal doctrine for rules of conduct, including insistence on nearly absolute respect for States’ exclusive
and independent control of territory. This doctrine would be tested by
evolving customs and the future practices of nations. But legal support

146

Id. at 303–04. Supreme Court Justice and author Joseph Story characterized
this passage from Vattel as laying “down the true doctrine, in clear terms.” JOSEPH
STORY, COMMENTARIES ON THE CONFLICT OF LAWS 787 (2d ed. 1841).
147
VATTEL, supra note 143, at 308–09 (emphasis added) (internal citation
omitted).

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for territorial sovereignty rules persisted through the eighteenth and into
the nineteenth century, although observance and the force of the law
were often significantly diminished in the political and military interestsof maintaining a balance of power.
Indeed, efforts to settle territorial, political, and military scores presented a significant challenge to territorial sovereignty. At the conclusionof the Napoleonic Wars, European powers sent diplomatic representatives to Vienna to redraw political borders and to revise rules for future148
relations. In a secret clause added to the First Treaty of Paris, the great
power victors of the wars, Austria, Great Britain, Prussia, and Russia,
granted themselves a status superior to other European powers thinking
they might maintain peace through selective interventions in the name of149
balance. They agreed to meet periodically and to reach agreements on
150
emerging crises. Within three years, France joined the great powers in151
this balancing function. Not only did the great powers agree to maintain an equilibrium of resources and people, they also agreed to act in152
the common interests of Europe as a whole. The resulting Vienna system, known as the Concert of Vienna or Concert of Europe, appeared toreflect two important concepts for the future of international relations.
First, the Concert was an early resort to positivism as a means to better
express and secure compliance with behavioral norms. Second, it reflected further investment in the notion of territorial sovereignty as a means
153
to ensure peaceful relations between States.
State practice from the early years of the Concert of Europe illustrates how positivism and territorial sovereignty operated in tandem.
When Austria, Russia, and Prussia adopted measures to give the great
powers a “perpetual pretext” for interfering in the concerns of different

148

KYLE LASCURETTES, RAND CORP. PERSPECTIVE, THE CONCERT OF EUROPE AND
GREAT-POWER GOVERNANCE TODAY 4 (2017), http://www.rand.org/content/dam/rand/pubs/perspectives/PE200/PE226/RAND_PE226.pdf.
149
Id. at 5–6. To the foreign ministers of Austria, Great Britain, and France, thebalance of power meant maintaining an equilibrium of forces between the great
powers to discourage unilateral aggression by any of them. GORDON A. CRAIG, EUROPE
SINCE 1815 18 (2d ed. 1966). In 1961, the U.S. Department of Justice argued that thisbalance of power system lacked long-term, “enduring relationships” between States,
which “had to be free to change their alignment any time the balance was threatened,
and free to use force whenever the system required it. Checks on the use of force
were, therefore, political ones rather than legal ones, and war was not formallyoutlawed.” Nicholas deB. Katzenbach, Intervention by States and Private Groups in theInternal Affairs of Another State, Apr. 12, 1961, in 1 SUPPLEMENTAL OPINIONS OF THE
OFFICE OF LEGAL COUNSEL OF THE UNITED STATES DEPARTMENT OF JUSTICE 226 (Nathan
A. Forrester ed., 2013).
150
LASCURETTES, supra note 148, at 6; KISSINGER, supra note 118, at 3.
151
KISSINGER, supra note 118, at 60.
152
BOBBITT, supra note 119, at 551–53 (2002).
153
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States based on the Neapolitan revolution of 1820, the British government balked. Britain dissented “not only upon the ground of their being,
if reciprocally acted on, contrary to the fundamental laws of Great Britain, but such as could not safely be admitted as part of a system of inter154
national law.” The British foreign minister wrote that international law
would only allow intervention to be justified “by the strongest necessity”
and would not admit a general exception to deal with revolutionary155
movements. In 1822, Britain threatened hostilities with France over its
potential interference in the Spanish revolution because there was no“direct and imminent danger to the safety and interests of other states,
156
which might justify a forcible interference.” Both Great Britain and theUnited States warned Spain and its allies against interventions in the rev157
olutionary contests taking place in South and Central America. In the
United States, insistence on non-interference by European powers took158
political form in the 1823 Monroe Doctrine. Great Britain’s position,
upholding international law norms against interference in the absence of159
justification, opened a rift among European great-power States. Austria,
Russia, and Prussia continued to justify anti-revolutionary interferences154

WHEATON, supra note 118, at 518.
Id.
156
Id. at 519.
157
Id. at 520.
158
Arnulf Becker Lorca, Universal International Law: Nineteenth-Century Histories of
Imposition and Appropriation, 51 HARV. INT’L L.J. 475, 515 (2010). With the Monroe
Doctrine, the United States asserted the right to take all necessary action to prevent
any non-American power from obtaining control over territory in the Western
Hemisphere. Norbert A. Schlei, Authority Under International Law to Take Action if theSoviet Union Establishes Missile Bases in Cuba, Aug. 30, 1962, in 1 SUPPLEMENTAL
OPINIONS OF THE OFFICE OF LEGAL COUNSEL OF THE UNITED STATES DEPARTMENT OFJUSTICE 255 (Nathan A. Forrester ed., 2013). In 1846, the “Polk Corollary” of theDoctrine was added to assert this right regardless of whether the inhabitants of thearea affected consented to the foreign intervention. Id. During the Cuban Missile
Crisis, the Department of Justice explained that the legal justifications for the
Monroe Doctrine and Polk Corollary were still valid because the rights asserted werebased on regional self-defense. Id.
159
LASCURETTES, supra note 148, at 13. The British appeared to have viewed
international law as a law-abiding sentiment for the society of advanced nations,rather than as strict obligations imposed by a universal sovereign authority. MARTTIKOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL
LAW 1870–1960, at 48–49 (2004). The Prime Minister responded to an 1887 proposal
in the House of Lords to create a court of international arbitration by explaining,“International law has not any existence in the sense in which the term ‘law’ is usually
understood. It depends generally upon the prejudices of writers of text-books. It canbe enforced by no tribunal, and therefore to apply it to the phrase ‘law’ is to someextent misleading . . . .” THOMAS ALFRED WALKER, THE SCIENCE OF INTERNATIONAL LAW
1 (1893) (emphasis omitted).
155

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based on maintaining stability in Europe, while Great Britain generally
160
protested their actions, frequently on international legal grounds.
The period also introduced a new voice in international law, theEnglish philosopher Jeremy Bentham. Bentham is reputed to have161
coined the term “international” and applied it to law. He posited, contrary to the elitist arrangement of the Concert of Europe, that the objective for a universal international code would be universal, equal utility of162
all nations. Bentham also proposed the concept of an international
163
court or “common tribunal” to adjudicate disputes. Students of Bentham spread his ideas to newly independent States during the nineteenth
century as a counterweight to the cynical positivism of the Concert of Eu164
rope.
Meanwhile, other nineteenth-century international lawyers
equivocated, embracing equality but with limits or conditions. Some wentso far as to rank States based on a standard of civilization, with the European model on top, allowing States to articulate a legal justification for
165
colonialism. In doing so, these lawyers rejected the indiscriminate universalism of Bentham, denying benefits of European international law to
the rest of the world and reserving full sovereignty to a civilized, elite
166
community of States.
160

LASCURETTES, supra note 148, at 14. France tried to establish the Hapsburg
Archduke Maximilian in Mexico while the United States was preoccupied with its
Civil War. SIMMS, supra note 122, at 230.
161
MARK MAZOWER, GOVERNING THE WORLD: THE HISTORY OF AN IDEA, 1815 TO THE
PRESENT 19 (2012). Bentham wrote early manuscripts on international law from1786–89. See generally JEREMY BENTHAM, THE WORKS OF JEREMY BENTHAM (John Bowringed., 1843).
162
BENTHAM, supra note 161, at 537.
163
Id. at 552.
164
MAZOWER, supra note 161, at 21–22.
165
Id. at 71–74; L. OPPENHEIM, 1 INTERNATIONAL LAW: A TREATISE 148 (2d ed.
1905). Other legal writers of the age, like Frantz Despargnet and Charles Salomon,
warned against these justifications. Id. at 81.
166
KOSKENNIEMI, supra note 159, at 142. Turkey, for example, was not part of theConcert of Europe until after the Crimean War. ORLANDO FIGES, THE CRIMEAN WAR: A
HISTORY 423 (2010). That mid-nineteenth century conflict presents an interestingcase study of the era’s interventions and balance of power politics. It resulted fromthe Russian invasion of the Ottoman Empire to enforce its perceived legal rights toprotect the Orthodox Christians within Ottoman territories. Id. at 104–16; IAN
FLETCHER & NATALIA ISHCHENKO, THE CRIMEAN WAR: A CLASH OF EMPIRES 12–16(2004). Fearing a Russian takeover of the Straits of Bosporus and Dardanelles, GreatBritain and France responded to defend Turkey’s sovereignty. COLEMAN PHILLIPSON,
WHEATON’S ELEMENTS OF INTERNATIONAL LAW 108 (5th ed. 1916). Yet it would bewrong to assert the Crimean War was merely about resolving legal disputes; religion,
national pride, and national strategies played significant roles in the decision to go to
War. FIGES at 123–25, 157–58. The war left the Ottoman Empire indebted to the
Allies. Id. at 427–28. Repayment loans were conditioned on the Ottomans issuing adecree for religious equality. Id. This type of lawful cultural intervention was
disruptive to the social fabric within the Ottoman Empire, causing significant anti-

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At the end of the century, the British international law scholar Lassa
Oppenheim explained that sovereignty contained three fundamental
qualities: independence of State action, internally and externally; territorial supremacy over all persons and things within the State’s boundaries;
167
and personal supremacy over the State’s citizens at home and abroad.
The territorial sovereignty rule reflected these qualities:
The protection granted to these qualities by the Law of Nations
finds its expression in the right of every State to demand that otherStates abstain themselves, and prevent their organs and subjects,
from committing any act which contains a violation of its independence and its territorial as well as personal supremacy.168

The duty of non-interference was clear:
It is impossible to enumerate all such actions as might contain a violation of this duty. But it is of value to give some illustrative examples. Thus, in the interest of the independence of other States, aState is not allowed to interfere in the management of their international affairs nor to prevent them from doing or to compel themto do certain acts in their international intercourse. Further, in theinterest of the territorial supremacy of other States, a State is not allowed to send its troops, its men-of-war, and its police forces into or
through foreign territory, or to exercise an act of administration or
jurisdiction on foreign territory, without permission.169

Oppenheim acknowledged, however, that State custom and practiceallowed for broad exceptions for interferences based on self-defense,
170
maintenance of the balance of power, and the interests of humanity.
While these exceptions were expansive, Oppenheim cautioned against
their abuse because “any unjustifiable intervention by one State in the af171
fairs of another gives a right of intervention to all other States.”
Some of the period’s international law experts expressed even lesstolerance for practices of interference. The British legal scholar Thomas
Walker wrote that international law rested on territorial sovereignty,
meaning that all States were formally equal and the only justification for

Christian violence. Id. at 430–32. The Ottomans ultimately failed to enforce religious
equality reforms, which in turn had consequences in the Balkans where the Christianmajority began rising up against Muslim landlords and generated nationalist
movements that later ignited the First World War. Id. at 432. In retrospect, theinterventions of the nineteenth century demonstrate the inadequate ability of theperiod’s international law to constrain the forces of raison d’état, national pride, andreligious affiliations.
167
OPPENHEIM, supra note 165, at 170–71.
168
Id. at 171.
169
Id. at 173.
170
Id. at 182–91. See also PHILLIPSON, supra note 166, at 91–92.
171
OPPENHEIM, supra note 165, at 188.

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172

an interference was “the imperative necessity of self-protection.” In
Walker’s view, the intrusions of European powers were examples fallingshort of the ideal; the progress of history showed that the rule of nonin173
terference was strengthening.
Henry Halleck, a lawyer who would become the United States Army
Chief of Staff during the American Civil War, published a leading international law treatise in 1861. Addressing the nature and effect of territorial sovereignty, he emphasized the significance of non-interference witha sovereign State:
No writer of authority, on international law, advocates any general right of one sovereign and independent state to interfere withthe domestic concerns and internal government of another sovereign and independent state. Some, however, make numerous exceptions to the general rule, and attempt to justify interference by
one state, in the internal affairs of another, in particular cases andfor certain specified objects. The principal grounds upon whichsuch interference has been justified are: first, self defence; second,the obligations of treaty stipulations; third, humanity; and fourth,the invitation of the contending parties in a civil war.174

Halleck recognized that States had interfered in the internal affairsof other States based on pretexts, but declared that the noninterference
rule was “the fundamental principle of international jurisprudence” andtherefore “usage, and custom, cannot make it justifiable or lawful, for no
175
length of usage can justify a wrong.” Halleck also explained that a State
could not transgress upon the territory of a peaceful neighboring State inpursuit of hostile rebels or other belligerents, but allowed for one exception: “If the neighboring state, from the want either of the will or of theability, neglects to prevent such excursions, or to suppress such organizations, the threatened state may cross the frontier and attack or destroy
176
the threatened danger.”
172

WALKER, supra note 159, at 57, 112.
Id. at 151.
174
H.W. HALLECK, INTERNATIONAL LAW; OR, RULES REGULATING THE INTERCOURSEOF STATES IN PEACE AND WAR 83 (1861). See generally A.G. HEFFTER, LE DROIT
INTERNATIONAL PUBLIC DE L’EUROPE §§ 44–46 (Jules Bergson trans., 1866); ROBERTPHILLIMORE, COMMENTARIES UPON INTERNATIONAL LAW 204–05 (1854); WILLIAM OKE
MANNING, COMMENTARIES ON THE LAW OF NATIONS 98 (1839); ANTONIO RIQUELME,ELEMENTOS DE DERECHO PÚBLICO INTERNACIONAL, lib. 1, tit. 2, cap. 14 (1849);
FRIEDRICH AUGUST WILHELM WENCK, CODEX JURIS GENTIUM RECENTISSIMI, tit. 1, 8
(1781).
175
HALLECK, supra note 174, at 84.
176
Id. at 95–96. The debate concerning the “unwilling or unable” standard
observed by Halleck persists today. See, e.g., Dawood I. Ahmed, Defending Weak States
Against the “Unwilling or Unable” Doctrine of Self-Defense, 9 J. INT’L L. & INT’L REL. 1(2013); Ashley S. Deeks, “Unwilling or Unable”: Toward a Normative Framework forExtraterritorial Self Defense, 52 VA. J. INT’L L. 483 (2012); Kevin Jon Heller, The Absence of173

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The end of the nineteenth century saw the final fragmentation of
the Concert of Europe. As much as any other factor, Britain’s adherence
to international law principles of sovereignty and territorial integrity ultimately carried it into armed conflict with Germany in the twentieth century. Germany’s invasion of Belgium, which had been guaranteed neutrality by a treaty with the great-powers, brought the British into the First
177
World War. Likewise, President Wilson’s fourteen-point plan, uponwhich the United States based its actions during the war, called for an association of nations to afford “mutual guarantees of political independ178
ence and territorial integrity to great and small states alike.”
Wilson’s vision of an association of nations, much like the earlier
Concert of Europe and Grotius’s community of States before that, foundlife in the form of positive international law. Following the First World
War, States drafted the Covenant of the League of Nations, a multilateraltreaty creating an international body to promote cooperation, as well as
peace and security. One of its declared purposes was to firmly establish“international law as the actual rule of conduct among Governments
179. . . .” The Covenant required State parties to “respect and preserve as
against external aggression the territorial integrity and existing political180
independence of all Members of the League.” Some hoped the new
League would provide a mechanism to preserve sovereign rights and val181
ues over the unchecked power of foreign States. The effort foundered,however, especially after the United States Senate declined to consent to
the Covenant, in part because it appeared to strengthen political allianc182
es rather than international law.
In the interwar period, territorial sovereignty was the focus of seminal litigation at the Permanent Court of International Justice. In the S.S.
Lotus case, France claimed Turkey had violated its sovereignty by subjecting to its criminal jurisdiction the watch officer of a French vessel involved in a collision with a Turkish ship on the high seas which killed 8
Turkish sailors. France characterized the ship as sovereign territory, argu-

Practice Supporting the “Unwilling or Unable” Test, OPINIO JURIS (Feb. 17, 2015), http://
opiniojuris.org/2015/02/17/unable-unwilling-test-unstoppable-scholarly-imagination/.
177

ISABEL V. HULL, A SCRAP OF PAPER: BREAKING AND MAKING INTERNATIONAL LAW
DURING THE GREAT WAR 41–43 (2014).
178
President Woodrow Wilson’s Fourteen Points, YALE L. SCH. AVALON PROJECT,
http://avalon.law.yale.edu/20th_century/wilson14.asp. Fifty years later the U.S.
Department of Justice explained that international law changed after World War I toprohibit armed interventions. Katzenbach, supra note 149, at 226.
179
The Covenant of the League of Nations, YALE L. SCH. AVALON PROJECT, http://
avalon.law.yale.edu/20th_century/leagcov.asp.
180
Id. at art. 10.
181
Sir Geoffrey Butler, Sovereignty and the League of Nations, 1 BRIT. Y.B. INT’L L.
35, 41 (1920–21).
182
MAZOWER, supra note 161, at 138.

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ing the officer’s wrongful act fell outside Turkish jurisdiction. The
Court stated, “the first and foremost restriction imposed by internationallaw upon a State is that—failing the existence of a permissive rule to thecontrary—it may not exercise its power in any form in the territory of another184
State.” The Court, however, explained that international law permitted
a victim State to exercise criminal jurisdiction over an offense that occurred in another State when the effects take place within the victim
185
State. Both France, on whose territory the watch officer’s act occurred,
and Turkey, on whose territory the effects occurred, had concurrent le186
gal authority to take action.
The League of Nations infamously collapsed prior to the Second
World War but was soon succeeded by the United Nations in 1945, which
adopted many of the League’s expectations with respect to territorial in187
violability. The United Nations Charter lies at the structural core ofmodern international relations but refers to sovereignty only twice. First,
the Charter notes that the United Nations “is based on the principle of188
the sovereign equality of all its Members.” Second, the Charter explainsthat when a territory under a trusteeship becomes a Member State, itceases to be a trustee because the relationship among Member of theUnited Nations “shall be based on respect for the principle of sovereign
189
equality.” The Charter does not define sovereignty. However, the drafting conference that produced it understood that sovereign equality included the following elements:(1) that states are juridically equal;(2) that each state enjoys the right inherent in full sovereignty;(3) that the personality of the state is respected, as well as its territorial integrity and political independence;(4) that the state should, under international order, comply faithfully with its international duties and obligations.190

183

S.S. Lotus (Fr. v. Turk.), Judgment, 1927 P.C.I.J. (ser. A) No. 10, 6–7 (Sept. 7).
Id. at 18 (emphasis added).
185
Id. at 25–27.
186
Id. at 31.
187
Charles Townshend, The League of Nations and the United Nations, BBC (Feb. 17,2011), http://www.bbc.co.uk/history/worldwars/wwone/league_nations_01.shtml.
188
U.N. Charter, art. 2, ¶ 1.
189
Id. at art. 78.
190
LELAND M. GOODRICH & EDVARD HAMBRO, CHARTER OF THE UNITED NATIONS:COMMENTARY AND DOCUMENTS 66 (1946) (quoting UNCIO, Report of Rapporteur ofCommittee 1 to Commission I, Doc. 944, I/1/34(1), p. 12; Verbatim Minutes of Second
Meeting of Commission I, Jun. 15, 1945, Doc. 1123, I/8, p. 5–7; and Verbatim Minutes of
the Ninth Plenary Session, Jun. 25, 1945, Doc. 1210, P/20, p. 3).
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Members of the U.S. delegation negotiating the Charter resisted defining “sovereign equality” because they feared undermining the strengthof the rule. Mr. Leo Pasvolsky, the Special Assistant to the U.S. Secretaryof State, explained, “an enumeration of what is included under the term‘sovereign equality’ would weaken the concept which, stated in general191
terms, covers a very broad field.” For example, as the negotiations addressed terms to protect the territory of States from external aggression,
Mr. Harley A. Notter, an advisor to the U.S. delegation, objected to detailing such rules, stating, “[w]e interpret sovereign equality as embodying the principle of respect for territorial integrity. We consider the principle implicit so that it is difficult to answer the question why we object to192
spelling it out.” Thus, Mr. Pasvolsky proposed language for the Charter
that would not “involve a guarantee of territorial integrity” because it
193
risked objections from the Soviet bloc. The language he preferred,“[a]ll members of the United Nations shall refrain in their international
relations, from the threat or use of force against the territorial integrity orpolitical independence of any member or state, or in any other manner inconsistent with the purposes of the United Nations[,]” was subsequently in194
cluded in the Charter, with slight modification, in Article 2(4). The
Charter’s use of force provisions were included at the request of smaller
195
nations as to preserve them against external aggression. Thus, while theCharter’s legal obligation to refrain from the use of force is treaty-based
and somewhat qualified, it is evident the obligation is derived from cus196
tomary law understandings of sovereignty far broader in scope.
Since the Charter entered force, judgments of the International
Court of Justice have addressed territorial sovereignty, especially post-war
customary law notions of noninterference. In its Corfu Channel judgment,
the Court held the United Kingdom violated Albania’s sovereignty byrouting warships and conducting demining operations in Albania’s terri-

191
Minutes of the Fourteenth Meeting of the United States Delegation, Held at San
Francisco, Tuesday, April 24, 1945, 9:30 a.m., reprinted at FOREIGN RELATIONS OF THE
UNITED STATES: DIPLOMATIC PAPERS, 1945, GENERAL: THE UNITED NATIONS, VOL. I, 375(1972).
192
Minutes of the Thirty-Ninth Meeting of the United States Delegation, Held at San
Francisco, Tuesday, May 15, 1945, 9 a.m., reprinted at FOREIGN RELATIONS OF THE UNITEDSTATES: DIPLOMATIC PAPERS, 1945, GENERAL: THE UNITED NATIONS, VOL. I, 726 (1972)(emphasis in original).
193
Id.
194
Id. (emphasis in original).
195
GOODRICH & HAMBRO, supra note 190, at 68.
196
Although some perceive treaty obligations as undermining sovereignty, a State
enters such obligations based on its authority and plenary prerogative to deal withother States. See Thomas C. Heller & Abraham D. Sofaer, Sovereignty: The Practioners’
Perspective, in PROBLEMATIC SOVEREIGNTY: CONTESTED RULES AND POLITICALPOSSIBILITIES 24, 45 (Stephen D. Krasner, ed., 2001).

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torial waters without its consent. The United Kingdom sought to justify
the operations to secure its freedom of navigation rights through interna198
tional straits. The Court characterized the U.K. demining operations as
an exercise of an “alleged right of intervention as the manifestation of apolicy of force, such as has, in the past, given rise to most serious abuses
199
and such as cannot . . . find a place in international law.” The Corfu
Channel Judgment clearly stands for the proposition that one State’s nonconsensual operations in the territory of another—a violation of sovereignty—cannot be justified based on general security concerns.
Later, in the 1986 Case Concerning Military and Paramilitary Activities inand Against Nicaragua, the International Court of Justice offered now
widely-cited elaborations on the principle of non-intervention and theprohibition on the use of force. But the Court also offered significant
200
and underappreciated observations on territorial sovereignty. The casearose from claims related to United States support of armed groups allegedly responsible for attacks in Nicaragua and for alleged U.S. opera201
tions undertaken in Nicaraguan territorial waters and airspace. The
Court applied the customary law principle of nonintervention and determined that U.S. financial and other support for rebels in Nicaragua
amounted to a coercive intervention in matters committed to the exclu202
sive prerogative of the Nicaraguan government. Elaborating on the link

197

Corfu Channel (U.K. v. Alb.), Judgment, 1949 I.C.J. Rep. 4 ¶¶ 69–70 (Apr. 9).
Id. at 64–65.
199
Id. at 35. While the Court held the British action violated Albania’s
sovereignty, it allowed no redress apart from the declaration of the violation. Id. at 47.
200
Military and Paramilitary Activities in and Against Nicaragua (hereinafter,
Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 251 (June 27).
201
Id. at ¶¶ 21, 250. Aspects of this case are viewed skeptically by U.S.
government attorneys. Davis Robinson, the U.S. State Department Legal Adviser from
1981–1985, expressed “disquiet” over this decision because, “[a]fter the fact, events
have confirmed, as we then believed, that Nicaragua’s application [to theInternational Court of Justice] was based on a fraudulent affidavit.” Davis R.
Robinson, The Reagan Administration – Davis R. Robinson (1981-1985), in SHAPINGFOREIGN POLICY IN TIME OF CRISIS: THE ROLE OF INTERNATIONAL LAW AND THE STATE
DEPARTMENT LEGAL ADVISER 62 (Michael P. Scarf & Paul R. Williams eds., 2010).
Robison also points out that Nicaragua’s lead attorney on the case admitted tocommunicating with an ICJ judge before filing the case. Id. In assessing earlier
support to anti-communist groups, the Department of Justice had opined that aneutral State could not support an organized armed attack upon another State, but
explained “there would appear to be no violation of this precedent by the mere
provision of arms by private parties, even the stockpiling of arms, as long as theyremain within the control of private groups rather than belligerent parties, or bypermitting volunteers to be recruited, assembled, and perhaps even trained so long as
this did not approach the point of an organized military force.” Katzenbach, supranote 149, at 225.
202
Nicar. v. U.S., 1986 I.C.J. at ¶ 242. The Court based much of its legal findingson the use of force and non-intervention on the 1970 U.N. General Assembly
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between territorial sovereignty and the principle of non-intervention, theCourt observed,
The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference;
though examples of trespass against this principle are not infrequent, the Court considers that it is part and parcel of customaryinternational law. As the Court has observed: “Between independent States, respect for territorial sovereignty is an essential foundation of international relations . . .”, and international law requires
political integrity also to be respected.203

The Court also held, somewhat controversially, that U.S. logistical support to the Nicaraguan rebels, including arming and training, amounted
204
itself to a prohibited use of force. Understandably, these two holdings
attracted the lion’s share of attention following the case. They surely represented the gravest breaches of international law involved in the case.
However, the Paramilitaries judgment also included important observations on territorial sovereignty, independent from its holdings on theprinciples related to use of force and intervention.
A limit on the parties’ consent to its jurisdiction prevented the Court
from directly applying the United Nations Charter to the litigation, including the Article 2, paragraph 4 prohibition on the threat or use of

Declaration on Principles of International Law concerning Friendly Relations andCo-operation among States. Id. (citing G.A. Res. A/RES/25/2625, Declaration on
Principles of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations (Oct. 24, 1970),
http://www.un-documents.net/a25r2625.htm). The Court acknowledged the nonbinding nature of General Assembly instruments, however it also noted the UnitedStates voted in favor of the Declaration without reservations and had accepted similarstatements of principles in other settings. Id. at ¶ 188.
203
Nicar. v. U.S., 1986 I.C.J. at ¶ 202 (quoting Corfu Channel (U.K. v. Alb.),
Judgment, 1949 I.C.J. Rep. 4 ¶ 35 (Apr. 9)).
204
Nicar. v. U.S., 1986 I.C.J. at ¶ 228. This decision proved to be so controversial
to the United States that it led to the revocation of its consent to the Court’s
compulsory jurisdiction. See U.S. DEP’T OF STATE, LETTER AND STATEMENT CONCERNINGTERMINATION OF ACCEPTANCE OF ICJ COMPULSORY JURISDICTION, 24 I.L.M. 1742 (1985).
The focus of the controversies involved the Court’s acceptance of jurisdiction, theright of El Salvador to intervene in the litigation, and the Court’s finding that
Nicaragua’s claims were justiciable. U.S. Terminates Acceptance of ICJ Compulsory
Jurisdiction: Hearing Before the Senate Foreign Relations Committee (Dec. 4, 1985)(statement of Abraham D. Sofaer, Legal Advisor, U.S. Dep’t of State), reprinted in 86
Dep’t of State Bull. 67 (Jan. 1986); Sean D. Murphy, The United States and theInternational Court of Justice: Coping with Antinomies in THE SWORD & THE SCALES: UNITEDSTATES AND INTERNATIONAL COURTS AND TRIBUNALS 83 (Cesare Romano ed., 2009).
United States legal advisors also criticized the Court’s distinctions between an armed
attack and the use of force in this case. See Abraham D. Sofaer, Terrorism, the Law, andthe National Defense, 126 MIL. L. REV. 89, 92–93 (1989); William H. Taft IV, Self-Defense
and the Oil Platforms Decision, 29 YALE J. INT’L L. 295, 300–01 (2004).

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205

force. However, the Court frequently resorted to the Charter for evi206
dence of the customary international law it applied to the case. With
respect to territorial sovereignty, the Court cited, inter alia, Article 2, paragraph 1 of the Charter, which recites “the sovereign equality of all its
207
Members.” The Court supplemented its findings on territorial sovereignty and extended them to airspace and territorial seas with citations to
the 1944 Chicago Aviation Convention and the 1958 Geneva Convention
208
on Territorial Sea. The Court easily concluded that these treaties offered clear support for a customary duty on the part of States to refrainfrom violating the exclusive control enjoyed by sovereigns over their ter209
ritory, including seas and air space.
The Court also relied pointedly on its own decisions in its examination of territorial sovereignty. The Court quoted and reaffirmed its Corfu
Channel case repeatedly for the legal effect of sovereignty, observing,“[b]etween independent States, respect for territorial sovereignty is an
210
essential foundation of international relations.” Discussing the related
principle of nonintervention, the Court identified a compelling parallel
between U.S. intermeddling in Nicaragua and the United Kingdom’s effort “to secure evidence in the territory of another State” in Corfu Chan211
nel. Returning to the issue of territorial sovereignty, the Court examined whether U.S., “attacks on Nicaraguan territory, incursions into its
territorial sea, and overflights” were violations of Nicaraguan sovereign212
ty. The Court held that the attacks, “not only amount to an unlawful
use of force, but also constitute infringements of the territorial sovereignty of213
Nicaragua.” The Court made a similar determination with respect to
U.S. maritime and overflight operations ruling, “they constitute a viola214
tion of Nicaragua’s sovereignty.”

205

Nicar. v. U.S., 1986 I.C.J. at ¶¶ 56, 172.
Id. at ¶ 182.
207
U.N. Charter, art. 2, ¶ 1.
208
United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833
U.N.T.S. 397, [hereinafter UNCLOS]; Geneva Convention on the Territorial Sea,
Apr. 29, 1958, 516 U.N.T.S. 205; Convention on International Civil Aviation, Dec. 7,1944, 15 U.N.T.S. 295 [hereinafter Chicago Convention].
209
Nicar. v. U.S., 198 I.C.J. at ¶¶ 212–13.
210
Id. at ¶ 202 (quoting Corfu Channel (U.K. v. Alb.), Judgment, 1949 I.C.J. Rep.
4 ¶ 35 (Apr. 9)).
211
Id.
212
Id. at ¶ 250.
213
Id. at ¶ 251 (emphasis added).
214
Id.
206

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The importance of territorial integrity as an aspect of sovereignty has
215
also been vigorously emphasized by States. In 1989, not long after theParamilitaries case, United States State Department Legal Adviser Abraham Sofaer explained, “‘[t]erritorial integrity’ is a cornerstone of international law; control over territory is one of the most fundamental at216
tributes of sovereignty.” Thus it should be no surprise that Presidents of
the United States and other senior government officials frequently in217
voke the need to respect sovereignty. Accordingly, the United States
215
Michael N. Schmitt & Liis Vihul, Respect for Sovereignty in Cyberspace, 95 TEX. L.
REV. 1639, 1657–59 (2017) (recounting State reactions to violations of territorial
sovereignty).
216
Digest of United States Practice in International Law 1989–1990, at 93–96(Margaret S. Pickering et al. eds., 2003) (quoting Hearing Before Subcommittee on
Civil Constitutional Rights of House Committee on the Judiciary (Nov. 8, 1989)(statement of Abraham D. Sofaer, Legal Advisor, U.S. Dep’t of State)).
217
See, e.g., Dwight D. Eisenhower, Special Message to the Congress on the Situation in the
Middle East, AM. PRESIDENCY PROJECT, http://www.presidency.ucsb.edu/ws/?pid=11007(“Our country supports without reservation the full sovereignty and independence ofeach and every nation of the Middle East.”); Richard Nixon, Fourth Annual Report to theCongress on United States Foreign Policy, AM. PRESIDENCY PROJECT, http://www.presidency.
ucsb.edu/ws/?pid=3832 (“These are principles which the United States has sought toengage the other great powers in observing[:] Coexistence, negotiated solutions,avoiding the use or threat of force, great power restraint, noninterference, respect forthe sovereignty and territorial integrity of states, renunciation of hegemony or
unilateral advantage . . . . They are not new principles; every member state of theUnited Nations has subscribed to their essential elements.”); Jimmy Carter, Vienna
Summit Meeting Joint U.S.-U.S.S.R. Communiqué, AM. PRESIDENCY PROJECT, http://
www.presidency.ucsb.edu/ws/?pid=32497 (“The two sides stressed the importance ofpeaceful resolution of disputes, respect for the sovereignty and territorial integrity ofstates, and of efforts so that conflicts or situations would not arise which could serve
to increase international tensions.”); William J. Clinton, United States-European Union
Summit Statement on Chechnya, AM. PRESIDENCY PROJECT, http://www.presidency.ucsb.
edu/ws/?pid=57087 (“We stress that the respect for the territorial integrity andsovereignty of neighboring states is a fundamental principle of the international
system.”); George W. Bush, Joint Statement by President George W. Bush and President
Vladimir V. Putin of Russia on a New Relationship Between the United States and Russia, AM.
PRESIDENCY PROJECT, http://www.presidency.ucsb.edu/ws/?pid=63384 (“We support
the building of a European-Atlantic community whole, free, and at peace, excluding
no one, and respecting the independence, sovereignty and territorial integrity of allnations.”); United States and India: Prosperity Through Partnership, WHITE HOUSE (Jun.
26, 2017), https://www.whitehouse.gov/the-press-office/2017/06/26/united-statesand-india-prosperity-through-partnership (declaring support for “ensuring respect forsovereignty and territorial integrity, the rule of law, and the environment”). See also
Schmitt & Vihul, supra note 215, at 1662–63 (summarizing similar statements by
President Barak Obama and officials in his administration); Joint Statement forEnhancing the Comprehensive Partnership between the United States of America and theSocialist Republic of Vietnam, WHITE HOUSE (May 31, 2017), https://www.whitehouse.
gov/briefings-statements/joint-statement-enhancing-comprehensive-partnership-unitedstates-america-socialist-republic-vietnam/ (jointly committing to an enhanced
Comprehensive Partnership “grounded in respect for the United Nations Charter

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has found that a State’s agents have no arrest authority in a foreign State
without the consent of the foreign State (absent a situation involving self218
defense). The United States expressed its “grave[] concern[s]” to Canada after Canadian authorities arrested an American citizen 200 yards on
219
the United States’ side of the border. U.S. objections to a foreign State
official acting within U.S. territory is in line with a series of similar cases,
perhaps the most notorious of which involved Israeli Mossad agents abducting the Nazi war criminal Adolph Eichmann from Argentina for trial
220
in Israel without first obtaining Argentina’s consent. Argentina referred
Eichmann’s case to the United Nations Security Council, which agreed
that the transfer of Eichmann from Argentina to Israel constituted a violation of Argentina’s sovereignty that was incompatible with the U.N.
221
Charter and risked undermining international peace and security. Although the Security Council did not order Eichmann released, it did re222
quest Israel make reparations to Argentina. These examples underscore sovereignty’s place as a primary rule of international law clearlyprohibiting a State from taking acts associated with jurisdiction in a for223
eign territory without consent.
Sovereignty rules do not merely prohibit a State’s unilateral law enforcement activities in a foreign territory; they prohibit officials andagents from nonconsensual entry into the territory of a foreign State. For
example, in accord with the International Court of Justice’s rulings, airspace over a State is considered sovereign; consequently, aircraft are notgenerally entitled to enter the airspace above the territory of a foreign
224
State without permission. This is a significant part of the basis for Pakistan’s objections to U.S. unmanned vehicles conducting operations over225
Pakistani territory. Similar sovereignty rules apply to a State’s territorial
waters, with many States asserting their sovereignty by seizing trespassing
226
foreign military vessels. As noted scholar Quincy Wright explained,
and international law, each other’s independence, sovereignty, territorial integrity,
and respective political systems.”).
218
Sofaer Testimony, supra note 216, at 93 (citing 1 INTERNATIONAL LAW: BEING
THE COLLECTED PAPERS OF HERSCH LAUTERPACHT, 487–88 (Elihu Lauterpacht ed.,1970)); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 433(1987).
219
DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1991–1999, at 445–
46 (Sally J. Cummins & David P. Stewart eds., 2005).
220
L.C. Green, The Eichmann Case, 23 MODERN L. REV. 507, 508–10 (1960).
221
S.C. Res. S/4349 (June 23, 1960).
222
Id. at ¶ 2.
223
RESTATEMENT (THIRD) OF FOREIGN RELATIONS §§ 432(2), 433.
224
Chicago Convention, supra note 208, ¶¶ 1, 6; Oliver J. Lissitzyn, The Treatment
of Aerial Intruders in Recent Practice and International Law, 47 AM. J. INT’L L. 559 (1953).
225
Schmitt & Vihul, supra note 215, at 1657.
226
Id. at 1657–58 (detailing the 2007 seizure of the British crew from the HMS
Cornwall and the 2016 capture of U.S. riverine craft by Iranian Islamic Revolutionary

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States have habitually protested “against private military expeditions proceeding from foreign territory with complicity or negligence of the government of that territory; and even against injuries to persons or property in their territory originating from acts in foreign territory without
227
hostile intent or negligence by the government of that state.” Based on
this precedent, State sovereignty protections extend well beyond prohibitions on the use of force and non-intervention into another State’s political, economic, social and cultural system, or the formulation of its foreign policy; each State has the exclusive right to control activities within
its borders and to refrain from undertaking nonconsensual activities
within the borders of foreign States.
Outside of the threshold for wartime hostilities, States have agreed to
specific innocent transit regimes for the air and sea domains. In the maritime environment, a treaty, the United Nations Convention of the Lawof the Sea (UNCLOS), established rules for the innocent passage of other States’ military vessels. The treaty grants that ships of all States are allowed continuous and expeditious passage through the territorial sea of aforeign State so long as the movement is innocent, meaning that it does228
not prejudice the peace, good order, or security of the coastal State. To
avoid confusion, UNCLOS lists activities considered to be prejudicial, toinclude: the threat of use of force; weapons use, practice, or exercise; information collection; propaganda broadcasting; launching or landing
aircraft or devices; loading or unloading cargo; fishing; polluting; research and surveys; or interference with communications of facilities in229
the coastal State. UNCLOS also allows coastal states to adopt necessary
230
safety regulations relating to maritime navigation and traffic. Coastal
states, however, do not have the authority to require advance permission
or notification of a foreign warship’s transit, nor may a coastal state close
off or otherwise impose arbitrary limits on the passage through its terri231
torial seas during peacetime. The UNCLOS innocent passage rules
were agreed upon by States to balance their collective interests in maintaining the oceans as a common resource for transportation and comGuard forces, as well as U.S. and Chinese conduct over disputed waters in the South
China Sea).
227
Quincy Wright, Legal Aspects of the U-2 Incident, 54 AM. J. INT’L L. 836, 844(1960). See also Schmitt & Vihul, supra note 215, at 1652–55, 1660–61 (discussing
Australia’s assertion of sovereignty at the ICJ to stop France from atmosphericnuclear weapons testing where effects manifested in Australia; assertions ofsovereignty by Nicaragua and Costa Rica over transboundary environmental damage;and Canadian assertions of sovereignty in response to damage by a Soviet spacecraft
crash).
228
UNCLOS, supra note 208, at arts. 17–18, 24.
229
Id. at art. 19.
230
Id. at arts. 21–22, 25.
231
Ronald D. Neubauer, The Right of Innocent Passage for Warships in the Territorial
Sea: A Response to the Soviet Union, 68 NAVAL WAR C. REV. 189, 191 (1988).

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munication with the interests of coastal States in protecting their interests
232
and especially their territorial sovereignty.
Overflight of foreign territory is also governed by treaties and international agreements. The 1919 Convention Relating to the Regulation of
Aerial Navigation recognized that every State “has complete and exclu233
sive sovereignty over the air space above its territory.” This was understood to reflect the unilateral and absolute right of each nation to permit
234
or deny entry into its territory and to control all movements therein.
The primacy of sovereignty was repeated in the 1944 treaty governingaviation, the Convention on International Civil Aviation (Chicago Con235
vention). This treaty is a primary modern source of law for State obligations for all aircraft (although it applies exclusively to civil aircraft, it has
236
provisions applicable to State aircraft). Unlike the UNCLOS regime,
the Chicago Convention prohibits a State’s military aircraft from flying
over or landing in the territory of a foreign state without special authori237
zation. State charter flights over foreign territory may be required toobtain permission and provide information relating to flight plans and238
stopovers. The Chicago Convention does have a mechanism for aircraft
in distress to make emergency landings in a foreign State without ad239
vance notice. These rules for aircraft were at the center of an international dispute in 2001, when a U.S. Navy EP-3 aircraft was forced to makean emergency landing in territory belonging to the People’s Republic of
240
China following a midair collision with a Chinese F-8 aircraft. In thatcase, the Chinese argued the U.S. violated their sovereignty with an unannounced entry and landing, while the U.S. argued that it’s aircraft in
distress committed no wrong and that its sovereignty was violated by sub241
sequent Chinese actions.

232

Karin M. Burke and Deborah A. DeLeo, Innocent Passage and Transit Passage inthe United Nations Convention on the Law of the Sea, 9 YALE J. WORLD PUB. ORD. 389, 391(1983).
233
Convention Relating to the Regulation of Aerial Navigation, Oct. 13, 1919, art.
1, 11 L.N.T.S. 173.
234
PAUL S. DEMPSEY, PUBLIC INTERNATIONAL AIR LAW 43 (2008); Christopher M.
Petras, The Law of Air Mobility—The International Legal Principles Behind the U.S. Mobility
Air Forces’ Mission, 66 A. F. L. REV. 1, 10–11 (2010) (citing John Cobb Cooper,
Backgrounds of International Public Air Law, 1 Y.B. AIR & SPACE L. 3 (1967)).
235
Chicago Convention, supra note 208, art. 1.
236
Id. at art. 3.
237
Id.
238
Petras, supra note 234, at 10–11.
239
Chicago Convention, supra note 208, at art 25; 2 Y.B. OF THE INT’L L.
COMMISSION 102 (1978).
240
DIGEST OF THE UNITED STATES PRACTICE IN INTERNATIONAL LAW 2001, at 703(Sally J. Cummins & David P. Stewart eds., 2002).
241
Id. at 707–10.

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Not every potential exception to sovereignty can be found in international treaties. Whether an exception exists for espionage in the formof information and intelligence gathering in the territory of a foreign
State appears to be unresolved. A notable modern case study looks at the
U.S. overflight program of the Soviet Union by U-2 reconnaissance air242
craft from 1956 until 1960. On May 1, 1960, the Soviets shot down the243
U-2 flown by Francis Powers. Contemporary legal experts examining
the United States’ U-2 reconnaissance overflights of the Soviet Union in1960 conclude they probably violated international law, despite the argument that the flights were necessary to protect against surprise at244
tack. Similar prohibitions against espionage in another State’s territori-

242
President Truman officially authorized reconnaissance overflights of theSoviet Union starting in 1950. R. Cargill Hall, The Truth About Overflights: Military
Reconnaissance Missions Over Russia Before the U-2 Are One of the Cold War’s Best Kept
Secrets, 9 MIL. HIST. Q. 24, 28 (1997). The British Royal Air Force began a similar
program in 1951. Id. at 29. The U-2 overflights started in 1956. Id. at 39.
243
Wright, supra note 227, at 836.
244
Id. at 838, 846–47. See also Eleanor H. Finch, Comment, Lester H. Woolsey 1877–
1961, 56 AM. J. INT’L L.130, 139 (1962) (noting that after the U-2 was shot down, theUnited States complained about the numerous acts of espionage committed by Soviet
agents in the United States, but “refrained from claiming a legal right to overfly theSoviet Union for reconnaissance purposes, and some representatives attachedimportance to the announcement of the United States that the U-2 flights over the
U.S.S.R. had been discontinued.”); Quincy Wright, Espionage and the Doctrine of NonIntervention in Internal Affairs, in ESSAYS ON ESPIONAGE AND INTERNATIONAL LAW 18(Roland J. Stanger, ed., 1962) (noting that self-defense is only permitted in cases ofarmed attack or the threat thereof, but the U.S. justifications for the U-2 flights werebased on ascertaining Soviet policy and intent, not from an immediate threat of
attack). Thomas Reed, a Secretary of the Air Force during the Ford administration,stated, “[t]he aerial overflights of the Soviet Union had no justification ininternational law. They were espionage, pure and simple.” REED, supra note 44, at 37.
Professor Schmitt and Ms. Vihul argue that the U.S. failure to protest the U-2 shootdown was an acknowledgement of Soviet sovereignty over its airspace, especially when
the U.S. protested the shoot down of another aircraft over the high seas earlier inthat year. Schmitt & Vihul, supra note 215, at 1656–57. The relevant issue is notwhether the Soviets had sovereignty over their airspace (they clearly did), butwhether the U.S. violated international law by sending the spy craft over Soviet
territory in the first place. W. Hays Parks emphasizes this point: “Penetration of astate’s airspace for purposes of collection of intelligence, while often vaguely
characterized as a ‘violation of international law,’ more correctly may be regarded asa violation of the sovereignty of that state as recognized by international law. The
remedy generally lies with the state whose airspace has been violated rather than ininternational law as such.” W. Hays Parks, The International Law of Intelligence Collection,in NATIONAL SECURITY LAW 439 (John Norton Moore et al. eds., 1990). Due to thedomestic law remedy, Parks asserts that the U-2 overflights did not constitute a per seviolation of international law, even though the Soviets were justified in resorting toproportional levels of force to defend their sovereignty. Id. Self-help, however, is atypical mechanism for dealing with international law violations due to the absence of

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245

al waters may exist. Land-based espionage involving territorial trespassby agents would be similarly prohibited. In fact, one expert found that“national territory has a stricter national legal regime than the territorial
sea and national airspace” and found that espionage involving territorial
246
incursions did, in fact, violate international law. Despite its potential
peacetime illegality, States have long engaged in peacetime espionage,
247
but rarely acknowledge doing so.
This longstanding international relations reality has led to a tu quoque argument (i.e., everybody spies), where many conclude that interna248
tional law does not address espionage. As a former General Counsel toa central authority for enforcement of rules. L. OPPENHEIM, 1 INTERNATIONAL LAW 13–
14 (photo Reprint 1962) (H. Lauterpacht ed., 8th ed. 1955).
245
JOHN KISH, INTERNATIONAL LAW AND ESPIONAGE 89 (David Turns ed., 1995);
James Kraska, Putting Your Head in the Tiger’s Mouth: Submarine Espionage in Territorial
Waters, 54 COLUM. J. TRANSNAT’L L. 164, 181 (2015).
246
KISH, supra note 245, at 83.
247
Wright, supra note 227, at 849.
248
Hugo Grotius stated, “sending [spies] is beyond doubt permitted by the law ofnations”—although the context of his discussion on sending spies dealt with wartime
practice. HUGO GROTIUS, DE BELLI AC PACIS, BOOK III, CH. IV 655 (1925). Wartime
espionage is permissible because belligerents are not obligated to respect eachother’s territory or government, while peacetime espionage arguably violates a State’s
duty to respect another’s territorial integrity and political independence. Wright,
supra note 244, at 12. Other legal scholars have found espionage to be legal. See, e.g.,
Christopher D. Baker, Tolerance of International Espionage: A Functional Approach, 19
AM. U. INT’L REV. 1091, 1092 (2004) (“[I]nternational law neither endorses nor
prohibits espionage, but rather preserves the practice as a tool by which to facilitate
international cooperation.”); Ashley Deeks, An International Legal Framework for
Surveillance, 55 VA. J. INT’L L. 291, 300 (2015) (observing that “[w]ith a few exceptions. . . , most scholars agree that international law either fails to regulate spying or
affirmatively permits it.”); Craig Forcese, International Law and Intelligence Collection, 5
J. NAT’L SEC. L. & POL’Y 179, 204-05 (2011) (observing that “there is no clear answer
on the international legality of extraterritorial espionage, assessed from thesovereignty perspective, and the international community seems content with an
artful ambiguity on the question.”); OPPENHEIM, supra note 165, at 491 (observing
that “[a]lthough all States constantly or occasionally send spies abroad, and although
it is neither morally nor politically and legally considered wrong to send spies, suchagents have, of course, no recognised position whatever according to InternationalLaw, since they are not agents of States for their international relations.”); Parks,
supra note 244, at 433–34 (“Intelligence collection as such does not violate
international law. However, some aspects of international law affect the means to be
utilized in collection. A leading example is the sovereign right of each nation tocontrol access to its territory, coastal waters, and the airspace above each; and to limit
activities within each.”); A. John Radsan, The Unresolved Equation of Espionage andInternational Law, 28 MICH. J. INT’L L. 595, 596 (2007) (observing that “espionage isneither legal nor illegal under international law.”); Glenn Sulmasy & John Yoo,Counterintuitive: Intelligence Operations and International Law, 28 Mich. J. Int’l L. 625,
637 (2007) (observing that “[i]nternational law has never prohibited intelligencecollection, in peacetime or wartime. State practice has always supported the principle

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the Central Intelligence Agency explained, “espionage is such a fixture ininternational affairs, it is fair to say that the practice of states recognizes
espionage as a legitimate function of the state, and therefore it is legal as249
a matter of customary international law.” Indeed, after the aforementioned U-2 shoot down, the Soviet Foreign Minister response was not todispute the lawfulness of espionage when confronted with Soviet behavior, but to distinguish ordinary espionage from aerial reconnaissance,with the later presumably having a greater capacity to carry destructive
250
weapons than a trespassing agent. States, however, generally do not discuss their espionage programs, let alone attempt to make public assertions of their legality. The lack of opinio juris from States on espionage
251
suggests that its international law status is indeterminate at best.
In sum, history and practice make a strong case for recognition of
territorial sovereignty as a standing rule of conduct between States. Whileoriginally conceived to reorganize and balance volatile political relations,
territorial sovereignty soon developed into both the basis for an entire
juridical order and a primary rule of conduct comprising that order. Sovereignty matured into a clear, albeit frequently compromised and contextually conditioned, rule of conduct between States promising exclusive and independent control of territory and the persons and property
located on it. Alongside the widely recognized authority of sovereigns toexercise dominion over territory, a complementary duty to refrain frominterfering with other States’ authority in that respect emerged, including expectations of near inviolability of political borders. By the end of
the nineteenth century, the duty to refrain from interference with territorial sovereignty was clear, though conditioned by exceptions such ascases of self-defense. By the twentieth century, interactions between
States in domains such as the seas called for further compromises concerning inviolability. And while the conflict-plagued twentieth century
offered sufficiently frequent and grave breaches of territorial sovereignty
to perhaps call the rule of non-interference into question, tribunals, publicists, and States, in their construction of collective security arrange-that such activity, although it can affect the territorial sovereignty of the target, isnevertheless critical to maintaining peace and international security.”).
249
Jeffrey H. Smith, Keynote Address, 28 MICH. J. INT’L L. 543, 544 (2007).
250
Wright, supra note 227, at 849. Wright, however, argues that both aerial
reconnaissance over foreign territory and secret agents on foreign territory amountto illegitimate enterprises. Id.
251
State practice, without opinio juris, cannot create a customary international law
rule. Schmitt & Vihul, supra note 215, at 1645. The United States and other nations
may be establishing opinio juris relating to espionage, where it would be limited togaining information necessary for national security decisions. Martin Libicki, The
Coming of Cyber Espionage Norms, 9TH INT’L CONFERENCE ON CYBER CONFLICT 3 (2017),
https://ccdcoe.org/sites/default/files/multimedia/pdf/Art%2001%20The%20Com
ing%20of%20Cyber%20Espionage%20Norms.pdf.

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ments, offered unwavering support for territorial sovereignty as a rule of252
conduct.
IV. EMERGENT VIEWS ON TERRITORIAL SOVEREIGNTY IN
CYBERSPACE
As illustrated above, States quickly perceived cyberspace as a criticaldomain of international relations. Nearly as quickly, they understood theimportance of developing international legal theories and doctrine tojustify their actions in this new realm. Yet for a variety of political reasons,253
State expressions of applicable legal doctrine have been sporadic. In
the case of the United States, initial enthusiasm for expressing cyber legal
doctrine soon gave way to a sustained silence on the subject, broken only
recently and selectively. Meanwhile, private opinions, chiefly from theacademy and nongovernmental efforts, have proliferated and, in thewake of relative State silence, have assumed perhaps outsized influence.
Both State and private sources have tackled the question of territorial
sovereignty in cyberspace. While consensus that territorial sovereignty
operated as a limit on cyber intrusion held for nearly two decades, thatconsensus has recently vanished. This section showcases and evaluates
the merits of these somewhat fragmented views on territorial sovereignty
in cyberspace.
In 1999, the Office of General Counsel of the U.S. Department of
Defense issued an assessment of international legal issues raised by the
Department’s increasing resort to information operations, including
254
cyber operations. A ground-breaking study, the assessment surveyed an
extraordinarily broad range of international law disciplines, including
the law of war, space law, communications law, and other peacetime re255
gimes regulating relations between States. Although no section of theassessment addresses territorial sovereignty exclusively or comprehensively, the subject pervades the entire work. While it reserves judgment on
many doctrinal details, the assessment repeatedly characterizes sovereign-252

Eli Lauterpacht, Sovereignty—Myth or Reality?, 73 INT’L AFF. 137, 139–40 (1997)(characterizing territorial aspects of sovereignty as clear and involving comparatively
little difficulty in comparison with other aspects).
253
See generally Michael N. Schmitt & Sean Watts, The Decline of International
Humanitarian Law Opinio Juris and the Law of Cyber Warfare, 50 TEX. INT’L L.J. 189, 222(2015); Michael N. Schmitt & Sean Watts, State Opinio Juris and International
Humanitarian Law Pluralism, 91 INT’L L. STUD. 171, 174 (2015) (noting and critiquing
significantly reduced State expressions of international law opinions).
254
See Office of Gen. Counsel, Dep’t of Def., An Assessment of International
Legal Issues in Information Operations (1999).
255
Id. at i.

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ty not only as a recurring theme of international law but also as a rule of256
conduct with potential to limit State operations in cyberspace.
The assessment’s first observations concerning territorial sovereignty
survey the concept broadly. The assessment’s characterizations of territorial sovereignty emphasize the independence and exclusivity attendant inhistory and practice. Acknowledging the contextual nature of sovereignty, the assessment contrasts State treatment of the subject in space law
with that of air law, two regimes of international law developed in response to novel domains of international relations. The assessment notesthat while overflights of air space are “regarded as a serious violation ofsovereignty and territorial integrity,” orbits in outer space above territori257
al boundaries are not. The assessment does not set out to explain the258
difference. However, it in no way calls into question the general normative character of territorial sovereignty as a rule of conduct. Instead, theassessment surmises that outer space was regarded by States as “beyond
259
the territorial claims of any nation.”
Expressing similar support for a rule of conduct related to territorial
sovereignty, the assessment cites the International Court of Justice Corfu
260
Channel Case. The assessment relates the Court’s conclusion that British
warships’ entry into Albanian waters “constituted a violation of Albania’s
261
territorial sovereignty.” The assessment concludes that the judgment
supports “recognition of a general international law of trespass” butquickly notes that remedies for such breaches are limited and may simply
262
amount to a declaration of wrongfulness. The important point, however, is that the assessment clearly expresses the guarantee of exclusivity,
the duty to refrain from violations, and the unlawful character of breaches of territorial integrity.
After significant attention to the question whether cyber operations
could amount to uses of force or armed attacks under the UN Charter
regimes, the assessment briefly and presciently considers the legal signifi256

Id. at 2, 19–20.
Id. at 2.
258
Id. The lack of sovereignty in outer space orbit presumably flows from theTreaty on Principles Governing the Activities of States in the Exploration and Use ofOuter Space, Including the Moon and Other Celestial Bodies, art. 2, opened forsignature Jan. 27, 1967, 18 U.S.T. 2410, T.I.A.S. No. 6347, 610 U.N.T.S. 205 (enteredinto force Oct. 10, 1967). Furthermore, no formal record of any State objecting tobeing over-flown by another State’s satellite exists, thus there appears to be no
persistent objectors to the lack of sovereignty in space orbits in general. FRANCISLYALL & PAUL B. LARSEN, SPACE LAW: A TREATISE 161 (2009). Some equatorial Statesasserted rights over geostationary orbits above their territories, but no spacefaring
State has accepted or respected this claim. Id. at 255.
259
Office of Gen. Counsel, supra note 254, at 2.
260
Id. at 16–17.
261
Id. at 16.
262
Id. at 17.
257

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cance of unauthorized intrusions into another State’s cyber infrastructure. The assessment unequivocally supports resort to self-help to expel
or counter such intrusions. Turning to the legal characterization of suchan event, the assessment observes,
An unauthorized electronic intrusion into another nation’s computer systems may very well end up being regarded as a violation of
the victim’s sovereignty. It may even be regarded as equivalent to aphysical trespass into a nation’s territory, but such issues have yet tobe addressed in the international community. Furthermore, the actof obtaining unauthorized access to a nation’s computer systemcreates a vulnerability, since the intruder will have had access to theinformation in the system and he may have been able to corrupt data or degrade the operating system. Accordingly, the discovery thatan intrusion has occurred may call into question the reliability ofthe data and the operating system and thus reduce its utility. If anunauthorized computer intrusion can be reliably characterized asintentional and it can be attributed to the agents of another nation,
the victim nation will at least have the right to protest, probably
with some confidence of obtaining a sympathetic hearing in theworld community.263

While the assessment appears to reserve final judgment on whether all
nonconsensual cyber intrusions amount to violations of sovereignty, it offers compelling arguments in favor of such a conclusion. Support for resort to self-help suggests support for a conclusion that unauthorizedcyber intrusions may constitute the sorts of unlawful activities giving riseto international law counter-measures. More significantly, the quoted
passage again offers clear support for a general rule of conduct prohibiting nonconsensual cyber interferences.
The 1999 assessment stood for nearly two decades as the most comprehensive and authoritative U.S. statement on how international law
applies to cyber operations. Although several of its passages suggest thatlegal analysis and doctrine would mature as the U.S. gained experience
with operating in cyberspace, the U.S. did not offer a substantial update
to or replacement of the assessment. Public statements, such as a 2010
State Department Legal Adviser’s remarks, intervened but paled in termsof breadth and depth of analysis and cannot be regarded as a replace264
ment of the 1999 assessment in any sense. The assessment is a rare example of a State undertaking and expressing publicly an early, deliberate,
and thorough evaluation of international law in an emergent area of international relations. Meanwhile, private efforts to identify the legal obligations applicable to cyberspace proliferated quickly.

263

Id. at 19–20.
DIGEST OF THE UNITED STATES PRACTICE IN INTERNATIONAL LAW, supra note 19,
at 594–96.
264

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The earliest private commentators to consider the question of nonconsensual cyber intrusions concluded easily that territorial sovereignty
constitutes a rule of conduct applicable to cyberspace. Taking up thecyber questions left open by the 1999 legal assessment, two early commentators concluded that even low-intensity cyber interference with the
integrity or exclusivity of cyber infrastructure amounts to an unlawful vio265
lation of sovereignty. Since these early opinions, others have taken up
the question and confirmed the general proposition but with somewhat
more circumspect conclusions.
A leading effort in this respect is The Tallinn Manual 2.0 on Interna266
tional Law Applicable to Cyber Operations (the Manual). Sponsored andproduced under the auspices of the North Atlantic Treaty Organization’s
Cooperative Cyber Defence Centre of Excellence, the Manual reflects the
personal assessments of a group of international law specialists drawn
267
from a wide variety of regions and legal traditions. Like the 1999 DoD
assessment, the Manual addresses an extraordinarily broad range of international law subjects including many of the peacetime regimes of public international law. Also, like the assessment, sovereignty in cyberspaceis among the first subjects addressed.
Four rules and their associated commentaries express the Manual’s
268
views on sovereignty. The first three sovereignty rules address, respec269
tively, general application of sovereignty to cyberspace, exercises of in270
ternal sovereignty over cyber activity and infrastructure, and exercises

265

Benedikt Pirker, Territorial Sovereignty and Integrity and the Challenges ofCyberspace, in PEACETIME REGIME FOR STATE ACTIVITIES IN CYBERSPACE 199–203(Katharina Ziolkowski ed., 2013); Wolff Heintschel von Heinegg, Legal Implications of
Territorial Sovereignty in Cyberspace, in FOURTH INTERNATIONAL CONFERENCE ON CYBERCONFLICT 11 (C. Czosseck et al. eds., 2012) (observing “any activity attributable toanother State, e.g. because it constitutes an exercise of that State’s jurisdiction, is tobe considered a violation of the sovereignty of the territorial State”).
266
TALLINN MANUAL 2.0 ON INTERNATIONAL LAW APPLICABLE TO CYBER OPERATIONS(Michael N. Schmitt ed., 2017). The Tallinn Manual 2.0 is an expansion of a previous
legal manual, the Tallinn Manual on International Law Applicable to Cyber Warfare, that
had addressed legal considerations arising in cyber operations related to uses of force
and armed conflict. See TALLINN MANUAL ON THE INTERNATIONAL LAW APPLICABLE TOCYBER WARFARE (Michael N. Schmitt ed., 2013). Professor Watts, one of the authors of
this Article, was a member of the international group of experts that authored theManual.
267
See TALLINN MANUAL 2.0, supra note 266, at xxvi–xxvii.
268
Id. at 11, 13, 16, 17 (reflecting the consensus of the authors while
commentaries develop practical applications of rules and express the various
opinions of the authors, including majority and minority views, on rule interpretationand other issues).
269
TALLINN MANUAL 2.0, supra note 266, at 11.
270
Id. at 13.

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271

of external sovereignty over the same. These rules recognize sovereign272
ty as “a foundational principle of international law.”
In addition to traditional sources, the Manual cites a pair of recent
reports from a United Nations-convened Group of Government Experts
273(GGE) to support application of sovereignty to cyberspace. In the 2013274
and 2015 meetings, the GGE, comprised respectively of fifteen and275
twenty States’ representatives including each of the permanent members of the UN Security Council, confirmed, “[i]nternational law, and inparticular the Charter of the United Nations, is applicable and is essential
to maintaining peace and stability and promoting an open, secure,peaceful and accessible ICT [information and communications technol276
ogies] environment.” The 2013 report observed with respect to sovereignty, “State sovereignty and international norms and principles thatflow from sovereignty apply to State conduct of ICT-related activities, and277
to their jurisdiction over ICT infrastructure within their territory.”
An earlier UN GGE report produced in 2010 did not include a clear278
conclusion that international law is applicable to cyberspace. Accountsof the 2010 process indicate China and Russia withheld consent from any
279
conclusion that international law applied fully. The 2010 Report merely
recommended dialogue to develop cyber-specific “norms” and to increase cooperation and “[c]onfidence-building . . . measures” between
280
States. Against this backdrop of initial reluctance by two major powers
to concede international regulation, the 2013 and 2015 conclusions takeon added weight.

271

Id. at 16.
Id. at 11.
273
Id. at 11 n.4.
274
Members of the 2013 UN GGE included Argentina, Australia, Belarus,
Canada, China, Egypt, Estonia, France, Germany, India, Indonesia, Japan, theRussian Federation, the United Kingdom of Great Britain and Northern Ireland, andthe United States of America. U.N. Secretary-General, Rep. of the Group of Governmental
Experts on Developments in the Field of Information and Telecommunications in the Context ofInternational Security, at 12–13, U.N. Doc. A/68/98 (June 24, 2013).
275
Members of the 2015 UN GGE included Belarus, Brazil, China, Colombia,
Egypt, Estonia, France, Germany, Ghana, Israel, Japan, Kenya, Malaysia, Mexico,
Pakistan, the Republic of Korea, the Russian Federation, Spain, the United Kingdomof Great Britain and Northern Ireland, and the United States of America. U.N. Doc.
A/70/174, supra note 19, at ¶¶ 15–17.
276
U.N. Doc. A/68/98, supra note 274, at ¶ 19.
277
Id. at ¶ 20.
278
U.N. Secretary General, Rep. of the Group of Governmental Experts on Developmentsin the Field of Information and Telecommunications in the Context of International Security, at
4, U.N. Doc. A/65/201 (July 30, 2010).
279
See generally, Eichensehr, supra note 11, at 362.
280
U.N. Doc. A/65/201, supra note 278, at ¶ 18.
272

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The Manual summarizes its understanding of sovereignty in cyberspace when it observes that a State’s resort to cyberinfrastructure andconnection to the Internet or any other outlet of cyberspace is not “a281
waiver of its sovereignty.” It concludes that sovereignty relates to each282
aspect of cyberspace—the physical, logical, and social layers. The infrastructure, the code, and the users that comprise cyberspace are each insome way encompassed by State sovereignty. The Manual observes thatmost often territorial presence gives rise to the rights and obligations attendant to sovereignty. Thus servers, cables, routers, and processors present on a State’s territory are associated with its sovereignty like other283
physical property. Similarly, data and programs can be conceived as residing on infrastructure which has territorial presence and, therefore
284
protection. And finally, persons conducting activities in cyberspace—programmers, technicians, and computer engineers—are generally subject to the sovereignty of the territorial State in which they are located.
While the Manual maintains consensus on issues of applicability,questions regarding implementation of the law in cyberspace frequently
break consensus. For instance, commentary presents split opinions on
extraterritorial expectations and exercises of sovereignty in cyberspace. A
small number of contributors extend their view of State sovereignty tonational infrastructure and data stored abroad as well as to nationals lo285
cated in another State’s territory. Yet the prevailing view of the Manual
limits the scope of sovereignty to territorial property and activities, apartfrom provisions made by specialized regimes of international law such as
286
sovereign immunity.
The preceding observations culminate in a rule of conduct for sovereignty. The rule states, “[a] State must not conduct cyber operations
287
that violate the sovereignty of another State.” The rule’s importancelies chiefly in its characterization of violations of sovereignty as internationally wrongful conduct. The rule’s commentary is significant as an illustration of the range of cyber activities that run afoul of the independ288
ence and exclusivity associated with sovereignty.
Like the 1999 DoD assessment before it, the Manual confronts gaps
in State practice that complicate its legal conclusions. In these cases, it
281

TALLINN MANUAL 2.0, supra note 266, at 12–13.
Id. at 12, 14.
283
See Yochai Benkler, Constitutional Bounds of Database Protection: The Role of
Judicial Review in the Creation and Definition of Private Rights in Information, 15 BERKELEY
TECH. L.J. 535, 562–63 (2000) (describing a physical layer of the information
environment).
284
See id. (describing a logical layer of the information environment).
285
TALLINN MANUAL 2.0, supra note 266, at 15–16.
286
Id. at 16.
287
Id. at 17.
288
Id. at 17–24.
282

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resorts to a series of hypothetical examples to illustrate the relationshipbetween cyber activities and the protection afforded by sovereignty—289
efforts to address mixed questions of law and fact. In some cases, factual analogies to non-cyber examples facilitate the analysis. For instance,
cyber operations involving physical intrusion by a State into another290
State’s territory are unanimously regarded as violations of sovereignty.
To illustrate the point, the Manual relates the example of a State’s agent
physically entering foreign territory to introduce malware by inserting a
291
USB storage device into cyber infrastructure present on that territory.
As victim of an internationally wrongful act, a State that suffered such an
intrusion could resort to countermeasures as a means of self-help in response.
Not all cyber scenarios considered by the Manual, however, offer
such helpful factual analogies. For instance, the commentary to Rule 4292
presents split opinions concerning remote access cyber operations.
Many authors hesitate to conclude that introduction of code by electron293
ic means amounted to a violation of sovereignty in every case. Consequently, the Manual offers a wide range of views on the legal status ofremote access operations. Some contributors express a maximally protective approach. These authors conclude that even slight alteration of a system, for example installation of a backdoor or other access mechanism
or emplacement of code such as malware, is sufficient to establish a viola294
tion of sovereignty. These contributors ground their view in the object
and purpose of sovereignty, namely a legal guarantee of “full control over
295
access to and activities on their territory.”
Other contributors are unable to conclude that mere nonconsensual access violates sovereignty. These authors adopt an effectsbased approach to remote access cyber operations. For many of these authors remote access simpliciter is not meaningfully intrusive or does not
sufficiently compromise independence and exclusivity to conclude a vio296
lation of sovereignty is involved. However, remote access operations
that result in physical damage, loss of functionality, or compromise of inherently governmental functions amount to violations of sovereignty in297
these authors’ view.

289

Id. at 14–15.
Id. at 14.
291
Id. at 19.
292
Id. at 19–20.
293
Id. at 20–21.
294
Id. at 21.
295
Id.
296
Id. at 20–21.
297
Id.
290

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Still other authors do not consider remote access cyber operations as
categorical violations of sovereignty, even when resulting in physicaldamage or loss of functionality or compromise of governmental func298
tions. These authors describe a more holistic approach to evaluating a
violation of sovereignty, wherein damage or loss of functionality are but
299
one of many considerations.
A further form of effect-based analysis considers the extent to whicha cyber activity interferes with a State’s governmental functions. Tracing
sovereignty to a legal right to govern exclusively, this view concludes thatcyber operations by States that disrupt or impede “inherently govern300
mental functions” amount to violations of sovereignty. This view does
not measure effects in cyber terms—by integrity, functionality, or damage
to cyber infrastructure—but rather by governance. The Manual identifies
essential social services, elections, law enforcement, national defense activities, and diplomacy as consensus examples of inherently governmental
301
functions. While State interference with other States’ governmental
functions recalls the principle of non-intervention, the Manual clarifies
that where an intervention requires coercion, a mere violation of sover302
eignty does not. Further, the Manual observes that while the concept of
domaine reserve associated with intervention—matters committed exclusively to the prerogative of a State—overlaps with inherently governmen303
tal affairs, the concepts are not identical.
The Manual presents split conclusions on the question of cyber operations conducted as part of peacetime espionage. A majority expresses
the view that the purpose of information gathering associated with espionage does not excuse or exempt the physical intrusion from constitut304
ing a violation of sovereignty. In this view, although espionage is notitself proscribed by international law, the constitutive acts of espionage,
305
such as a non-consensual physical intrusion may be. A small number of
the authors, however, considers State practice to support a narrow exception that permits what might otherwise amount to a violation of sover306
eignty when carried out as part of espionage.
Of course, the Manual concedes that sovereignty is not absolute. International lawyers as well as international relations specialists characterize States as surrendering sovereignty to international regulatory regimes298

Id. at 20.
Id.
300
Id. at 22.
301
Id.
302
Id. at 24.
303
Id.
304
Id. at 20.
305
Id.
306
Id. at 19.
299

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307

and institutions. The Manual emphasizes repeatedly that States havemade exceptions to their independence by adopting international legal
regimes that limit their freedom of action or that grant other States ac308
cess to their territory, such as the regimes applicable to air and seas.
Still, the Manual declines to apply such exceptions to cyberspace, applying instead the baseline rule of territorial sovereignty from general inter309
national law.
In sum, the Manual offers a highly orthodox understanding of sovereignty in cyberspace that is fully substantive in nature. Relying heavily on
recent State expressions of support for application of international law tocyberspace, the Manual, like the 1999 DoD assessment, identifies sovereignty as both a source of law and a rule of conduct itself. In this view,
States do not waive sovereignty in any significant respect by resorting tocyber means or by hosting cyber infrastructure on their territory. Nordoes development of State cyber capabilities that make accessible otherStates’ infrastructures excuse the territorial interferences involved in remote access operations. Limited to descriptive work and careful to account for States’ limited, publicly-available legal conclusions, the Manual’s conclusions with respect to territorial sovereignty in cyberspace
would not seem at first blush to be a significant or likely point of contention. Experience soon proved otherwise.
On January 19, 2017, the last day of President Barak Obama’s Administration, the outgoing General Counsel of the U.S. Department of
Defense issued to U.S. Combatant Commands a memorandum titled “International Law Framework for Employing Cyber Capabilities in Military310
Operations” (“the memo”). Like its 1999 predecessor, the memo addresses a broad range of international legal issues associated with military
operations in cyberspace. The memo is significant not merely for its timing and its guidance on a pressing operational issue but also for its clear
rejection of the outlook on sovereignty captured by the Tallinn Manual
2.0.
Overall, the memo offers a greatly constrained view of the legal effect of sovereignty. At its essence, the memo expresses territorial sovereignty as an organizing principle of international law, foundational, yet311
lacking independent or substantive legal effect. In many respects, the307Heller & Sofaer, supra note 196, at 25. In fact, Heller and Sofaer rejectconsent to international law as a surrender of sovereignty, preferring to regard treaty
ratification and accession and consent to be bound by custom as “exercise[s]” ofsovereignty. Id. at 45.
308
TALLINN MANUAL 2.0, supra note 266, at 13, 15–17.
309
Id. at 11.
310
Memorandum from Jennifer M. O’Connor, Gen. Counsel of the Dep’t ofDef., International Law Framework for Employing Cyber Capabilities in Military
Operations (Jan. 19, 2017).
311
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memo portrays territorial sovereignty in cyberspace as nominal, conclud312
ing States are sovereigns over cyber infrastructure in name only. Accordingly, its legal conclusions legitimize an extraordinarily broad range
of intrusive cyber operations and thus it merits careful attention.
Much of the memo’s general guidance replicates or elaborates only
slightly on existing legal doctrine. For instance, the memo confirms thatmilitary cyber operations must comply with international law including313
the law of war. Department of Defense lawyers received identical guid314
ance in the 2015 Department of Defense Law of War Manual. The memo
315
also recites the principle of non-intervention. It notes that precisely
how the non-intervention principle operates in cyberspace is still unclear
but confirms its relevance to cyber operations and predicts that State
316
practice will refine how it applies over time. Neither of these observations is unprecedented or unexpected.
However, shortly after these routine observations the memo takes a
provocative turn when it observes, “[m]ilitary cyber activities that are neither a use of force, nor that violate the principle of non-intervention are317
largely unregulated by international law at this time . . . .” The memo
does not go so far as to conclude that such cyber operations take place ina lawless zone. It concludes that the domestic law of the State in which acyber operation takes place or where its effects manifest may be rele318
vant. But in the realm of low-intensity cyber operations—operations
short of the use of force or prohibited intervention—the memo identifies
319
no generally applicable international law restraints.
The memo’s direct treatment of territorial sovereignty begins withobservations that align with widely-held understandings. It cautions that“[s]overeignty may impact the conduct of military cyber operations and320
requires careful legal analysis.” It formulates sovereignty as “a funda321
mental principle of international law.” And, like the Manual, the memo
confirms that sovereignty features both internal and external aspects. Internal aspects of sovereignty capture the independence and exclusivity
322
States enjoy in the control of their territory. External sovereignty refers
to States’ relationships with one another, especially their equality and in-312

Id. at 3–4.
Id. at 1.
314
U.S. DEP’T OF DEF., LAW OF WAR MANUAL ¶ 16.2 (2015).
315
Memorandum from Jennifer M. O’Connor, supra note 310, at 1–2.
316
Id. at 2.
317
Id. at 1.
318
Id. at 2.
319
Id.
320
Id. at 3.
321
Id.
322
Id.
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dependence from other States and their general freedom from restraints,
323
citing the familiar Lotus principle especially for the latter proposition.
Also like the Manual, the memo emphasizes that sovereignty is not
absolute. It characterizes international law as a series of limitations on
324
sovereignty. In this respect, it cites the United Nations Charter, theright of self-defense, the law of war, and international human rights
325
law. Each of these regimes in its own way replaces the sovereignty-based
Lotus presumption in favor of freedom of action with meaningful limits
326
on State action.
But in its concluding paragraphs, the memo concludes that sovereignty is not itself an independent restraint on State action. Although it
acknowledges sovereignty as a foundational principle that supports andinforms other rules that restrain State conduct, the memo concludes,“there is insufficient evidence of state practice or opinio juris to support
the assertion that sovereignty acts as 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 another327
State.” Adding operational context, the memo opines that sovereignty
does not prevent States from undertaking a cyber operation against cyber
infrastructure used by terrorists in other States even without the consent
of the latter State so long as the operation is short of the use of force or
328intervention. Though not explicit, the connection to nonconsensual,
remote access cyber operations such as Glowing Symphony is easily implied.
The memo observes that States suffering unwanted cyber intrusions
below the threshold of intervention are not without remedies. The memo
recites diplomatic exchanges and retorsion as options available to such
329
States. Protests and démarches are commonplace means of diplomacy by330
which States express disapproval. Retorsion, unfriendly though not unlawful acts by States undertaken in response to unwelcome or even unlawful acts by other States, also seem to represent a warranted response
331
according to the memo. Examples of retorsion include withdrawal offavorable, though not legally compelled treatment such as advantageous

323

Id.
Id. at 1.
325
Id. at 3.
326
S.S. Lotus (Fr. v. Turk.), Judgment, 1927 P.C.I.J. (ser. A) No. 10, 7 (Sept. 7).
327
Memorandum from Jennifer M. O’Connor, supra note 310, at 3.
328
Id. at 4.
329
Id. at 2.
330
Id.
331
U.N. INT’L LAW COMM’N, Draft Articles on State Responsibility of States forInternationally Wrongful Acts, with Commentaries, in 2 Y.B. OF THE INT’L L. COMMISSION
128 (2001); Memorandum from Jennifer M. O’Connor, supra note 310, at 2.
324

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trade practices. The usual purpose of retorsion is to induce an offending State to cease unwanted conduct. But because acts undertaken as retorsion may not involve unlawful conduct, the memo’s analysis seems topreclude resort to countermeasures in response to noncoercive but nonconsensual State cyber intrusions. Countermeasures involve self-help
measures that involve otherwise unlawful conduct by a victim State. Thus,
under the DoD guidance, a State could not resort to an act amounting tointervention in response to a cyber operation that did not itself amountto intervention or use of force.
In sum, the memo confirms the applicability of international law toStates’ cyber operations, confirms the prohibitions on the use of force
and intervention as meaningful limits relevant to cyber operations, but
concludes that these limits reflect something of a floor of internationallywrongful conduct in cyberspace. While the memo identifies territorial
sovereignty as the source of a right on the part of States to control territory to the exclusion of other States (internal sovereignty), it does notdeduce an obligation on the part of a State to consider itself legally excluded from nonconsensual operations within the territory of anotherState. According to the memo, State cyber operations that interfere with
the integrity of cyber infrastructure without the consent of a territorial
State, that intrude into such cyber infrastructure, or perhaps even thatalter such systems or their data without effects amounting to force or in333
tervention do not amount to internationally wrongful acts. Such operations and their effects reflect accepted practice between States in the
cyber context.
It is unclear what precisely provoked the memo. Its release not longafter revelation of Operation Glowing Symphony raises the possibility it
was produced to instruct DoD components of the legal analysis that supported the operation. DoD lawyers familiar with the 1999 DoD assessment might have found it difficult to reconcile Glowing Symphony andother reports of invasive remote access cyber operations. Thus, the memo
may also have been intended to notify the DoD community of U.S. resolve to continue such operations and to signal support for proposal bysubordinate commands to plan for and execute similar operations. It isalso possible the memo was prepared in advance of publication of theManual to caution DoD lawyers. Drafts of the Manual, including thechapter on sovereignty, were circulated widely to governments, thus it is334
likely the memo’s authors were aware of the Manual’s position.
It is also unclear whether the memo reflects views of the U.S. government outside the Department of Defense. Department of State andDepartment of Justice views seem to be especially important in the inter332

See 2 Y.B. OF THE INT’L L. COMMISSION, supra note 331, at 128.
Memorandum from Jennifer M. O’Connor, supra note 310, at 2–3.
334
Schmitt & Vihul, supra note 215, at 1649.
333

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connected and fast-moving realm of cyberspace. Thus, the memo leaves
U.S. legal advisors, allies, and adversaries in an uncertain position withrespect to predicting future U.S. conduct in cyberspace, especially the extent to which it will regard nonconsensual intrusions as justified and how
the U.S. will react to nonconsensual intrusions into its own territorial
cyber infrastructure. A clear-minded adjudication of the contrasting positions of the 1999 DoD assessment and the Manual on the one hand andthe 2017 memo on the other is essential.
V. BASELINE TERRITORIAL SOVEREIGNTY
It would be easy to minimize the significance of the disagreement
between the memo and the Manual as a minor difference of interpretation in an evolving area of law in a dynamic realm of State relations. Afterall, the Manual itself presents contrasting views on exactly these sorts ofquestions. But it is important to realize that disagreement between the
Manual and the memo is far more significant. They disagree on a fundamental question of law. Namely, they disagree whether violations ofsovereignty are internationally wrongful acts. There is common groundbetween the two sources in that both regard sovereignty as a principle of335international law. Moreover, both agree that principles of internationallaw apply to cyberspace. However, where the Manual concludes that violations of principles of international law are wrongful, the memo distinguishes principles of law from rules of conduct, limiting wrongfulness tobreaches of the latter. On balance, the Manual offers the more persuasiveview.
It is true that States have reduced many regimes of international law
to clear treaty law and offered refined, clearly-stated rules of conduct.
There may be a view that principles are not themselves rules of conduct
but rather, form the bases of such rules. Under this view, principles of international law are not viewed as self-executing. Like the dualist view ofinternational law in domestic systems, principles might be understood to335

Principles of international law should be distinguished from generalprinciples of law or, as termed by the Statute of the International Court of Justice,“general principles of law recognized by civilized nations.” Statute of theInternational Court of Justice, supra note 111, at art. 38(1)(c). The former refers toregulatory provisions of a broad character that form part of the corpus of public
international law itself, whereas the latter are not peculiar to the public international
legal system but rather form part of all legal systems, including municipal regimes
and private law. See Cherif Bassiouni, A Functional Approach to “General Principles ofInternational Law,” 11 MICH. J. INT’L L. 768, 770–71 (1990); Rudolf B. Schlesinger,
Research on the General Principles of Law Recognized by Civilized Nations, 51 AM. J. INT’L L.
734, 739 (1957). Professor Bassiouni identifies four functions of general principles of
law including: a source of interpretation; a means for developing new norms; asupplemental source to international law; and a modifier of international law.
Bassiouni, supra note 335, at 775–76.

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require implementing legislation in the form of international rules. But
failure to reduce rules to treaty form and even failure to refine principles
to specifically proscribed conduct do not prevent the conclusion that acts
inconsistent with such principles amount to wrongful behavior. In fact,some treaties give full legal effect to international law principles, author337
izing their application to adjudications.
And it is unlikely in this respect that a principle-rule distinction is either firmly established or particularly useful in practice. Professor Crawford, for instance, is skeptical of rigid distinctions between principles and338
rules. He observes, “[t]he rubric ‘general principles of international
law’ may alternatively refer to rules of customary international law, togeneral principles of law as in Article 38(1)(c) [of the Statute of the International Court of Justice], or to certain logical propositions underly339
ing judicial reasoning on the basis of existing international law.” Others, more accepting of a distinction, simply maintain that like rules,
340
principles of international law can entail rights and obligations. Just as
violations of the ius in bello principle of distinction are wrongful on thepart of States, it is possible to regard violation of the principle of sovereignty as wrongful. It is true that the ius-in-bello principle of distinction
found refined expression in twentieth-century treaties more clearly expressed as rules. But this evolution has not necessarily prevented violation of the preexisting principle itself from constituting wrongful con341
duct during armed conflict.
The character of the principle of non-intervention further illustrates
the point. No widely-ratified treaty, including the UN Charter, codifies
that principle. Yet few States reject its status as binding law and the International Court of Justice has confirmed as much. Admittedly, in a brief tothe International Court of Justice during the Nicaragua case, the U.S. argued momentarily that Article 2(4) of the UN Charter reflected the floor342
of internationally wrongful interferences between States. But the Court
336

DEP’T OF THE ARMY, LAW OF PEACE 1 (1979).
See, e.g., Rome Statute of the International Criminal Court, art. 21(1)(b),opened for signature July 17 1998, 2187 U.N.T.S. 3 (entered into force July 1, 2002).
Article 21 of the Rome Statute provides in relevant part: “The Court shall apply: . . .
applicable treaties and the principles and rules of international law, including theestablished principles of the international law of armed conflict . . . .” Id. at art. 21(1).
338
JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF INTERNATIONAL LAW 37 (8th ed.
2012).
339
Id.
340
Rüdiger Wolfrum, Sources of International Law, in MAX PLANCK ENCYCLOPEDIA OF
PUBLIC INTERNATIONAL LAW 6 (Rüdiger Wolfrum ed., 2011).
341
See e.g Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion,
1996 I.C.J. Rep. 226, ¶ 30 (July 8) (addressing law-of-war principles of necessity andproportionality).
342
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.),
Judgment, 1986 I.C.J. Rep. 14, ¶ 174 (June 27) (rejecting U.S. arguments that lower
337

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abruptly dismissed the idea that the UN Charter reflects the complete
343
universe of internationally wrongful intrusions. The Court also rejected
the argument that codification of a rule necessarily precludes wrongfulness of any conduct below, short of, or not meeting the legal elements of344
that rule.
A second basis to reject the memo’s position concerns States’ now
widespread agreement that public international law applies to cyberspace. It is true, Russia and China fitfully offered a variation of the “cyber
as sovereign” view at various stages of the ongoing United Nations Group345
of Government Experts (UN GGE) proceedings. A more emphatic
characterization of their view might be that of “cyber as legal void.” During the UN GGE proceedings, Russia and China suggested that cyberspace presents circumstances too different from preexisting interactions
between States to concede application of the legacy rules of international346
law. Each contended its cyber operations might be free from existing347
legal restraints. There were, however, doubts concerning the authenticity of the Russian and Chinese view. Skepticism formed whether this viewreflected considered legal analysis. Some preferred to brand their “cyberas legal void” position as a negotiating position developed specifically for
the UN GGE process—a position they were willing to abandon in exchange for more robust approval of authoritarian control over domestic
cyber infrastructure. Whatever the truth, Russia and China have bothabandoned the public international law void view in the last two rounds

forms of interference had been subsumed by the UN Charter prohibition on thethreat or use of force).
343
Id. at ¶ 175.
344
Id.
345
See Eichensehr, supra note 11, at 326–27 (terming a regulatory approach to
cyber that rejects traditional, Westphalian governance as “cyber as sovereign”).
346
Eneken Tikk-Ringas, Developments in the Field of Information andTelecommunication in the Context of International Security: Work of the UN First Committee
1998-2012, ICT4PEACE PUBLISHING pp. 5–6 (2012), available at http://www.ict4peace.
org/wp-content/uploads/2012/08/Eneken-GGE-2012-Brief.pdf.
347
See Alex Grigsby, Overview of Cyber Diplomatic Initiatives, in BRIEFINGS TO THE
GLOBAL COMMISSION OF THE STABILITY OF CYBERSPACE FOR THE FULL COMMISSIONMEETING, NEW DELHI, at 14 (Nov. 2017), available at https://cyberstability.org/wpcontent/uploads/2017/12/GCSC-Briefings-from-the-Research-Advisory-Group_NewDelhi-2017.pdf, (“China takes the position that there are no ‘general internationalrules in cyberspace that . . . govern the behavior’ of states.”) (omission in original);
Eneken Tikk-Ringas, International Cyber Norms Dialogue as an Exercise of Normative Power,
GEORGETOWN J. INT’L AFFAIRS (2017), available at http://ict4peace.org/wp-content/
uploads/2017/02/Tikk-Normative-Power.pdf (“During the 15-year GGE process, Russia
has remained skeptical about the efficacy of international law in cyberspace, taking
the view that not all legal norms ‘automatically’ extend to interstate relations in thefield of ICTs and relevant criteria need to be specified.”).

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of UN GGE statements. The extent to which they will abide by the current position in practice is another question altogether on which there
are compelling opinions.
At first blush, States’ concession that international law applies to cyberspace may seem merely prosaic or even trivial. But it is crucial—
especially on matters of legal interpretation and application. It is an essential signal of the starting point or baseline for legal evaluation ofStates’ cyber operations. By consenting to the operation of internationallaw in the domain of cyberspace (if domain-by-domain consent by States
was ever really required), States accept as binding a massive and growing
collection of rules of conduct as relevant. Existing general international
law then forms the legal baseline of limits on cyber conduct by States. Describing what this baseline looks like and how it operates in practicalterms is precisely what the Manual set out to do.
With respect to the baseline rule of territorial sovereignty, it is easy toconclude that international law guarantees a degree of independence
and exclusivity to States. It is also clear that independence from outside
interference and exclusivity as to control are never more clearly guaranteed by international law than with respect to a State’s own territory andproperty thereon. The previously-mentioned Island of Palmas arbitrationand the Corfu Channel judgments were important supplemental sourcesof this understanding, but only as expressions of what seemed clearly to
be State views on what sovereignty meant in practice. It is true that neither proceeding awarded significant relief based on violations of sovereignty nor produced significant analysis of sovereignty itself (nor did the
Nicaragua Court for that matter). But this was not because of doubts as to
the wrongfulness of violations, rather it is attributable to the minimal
damages caused and, especially in the cases of Corfu Channel and Nicaragua, the attention these tribunals devoted to more specific rules and regimes of international law (i.e. a duty to warn of mines and use of force,
respectively).
If one accepts that sovereignty is an aspect of the existing international law that States have conceded applies to cyberspace and if one accepts that sovereignty, at minimum, protects States from interferencewith the independent and exclusive control of their territory by otherStates, the conclusion that interferences with cyber infrastructure violate
sovereignty is not an especially difficult one to reach. Exclusion of external interference has been a foundation of the Westphalian system at least349
since the seventeenth century. A rough syllogism helps illustrate the348

Michael Schmitt & Luis Vihul, International Cyber Law Politicized: The UN GGE’s
Failure to Advance Cyber Norms, JUST SECURITY (June 30, 2017), https://www.justsecurity.
org/42768/international-cyber-law-politicized-gges-failure-advance-cyber-norms/.
349

Samantha Besson, Sovereignty, in MAX PLANCK ENCYCLOPEDIA OF PUBLICINTERNATIONAL LAW ¶ 13 (Rüdiger Wolfrum ed., 2011).

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point. A major premise would state, ‘sovereignty prohibits interferencewith States’ independent and exclusive management of territorial property.’ A minor premise might state, ‘cyber infrastructure is property located on State territory.’ A conclusion follows, ‘cyber operations that interfere with a sovereign’s independent and exclusive control of territorial
cyber infrastructure are prohibited.’ Although the syllogism’s cyber context involves still somewhat novel circumstances, the legal baseline it employs and its factual assumptions seem entirely reasonable.
Returning to the UN GGE statements, application of international
law to cyberspace involves applying a clear norm of integrity with respect
to territorial property to cyber infrastructure. The syllogism leaves unanswered the mixed question of fact and law involving what exactly constitutes an interference in cyber context. But this ambiguity does not undermine the conclusion of law that violations of sovereignty involving
cyber infrastructure and cyberspace are wrongful.
To be sure, territorial sovereignty has never been an absolute re350
straint on foreign interference. As related above, State and academic
commentary on sovereignty have emphasized its indeterminate status and351
contextual meaning in international law. But because of the fundamental character of territorial sovereignty, exceptions to its attendant Stateduties should not be taken lightly or be haphazardly formed. Great caution must be exercised in identifying or exercising them. The maritime
innocent passage and aerial transit exceptions to sovereignty cannot beapplied to cyberspace by simple analogy. First, the two regimes are very
different. One allows nonthreatening transit without advance notice or
coordination. The other requires special authorization. Second, both arecodified by treaties agreed upon by States involving years of careful negotiation.
Thus, the default or baseline rule of sovereignty remains one of inviolability. Territory and property located on a State’s territory, not subject
to a firmly-established exception, remain legally protected from molestation by other States. Operational logic—States’ pressing need to remaincompetitive and secure in the domain of cyberspace—may have supported a conclusion on the part of the 2017 U.S. DoD memo authors thatcyber infrastructure ought to be subject to a regime of exceptions likethat applicable to territorial sea, a cyber variation of innocent passage if
352
one prefers. But legal logic and analysis do not support such a conclusion at present. In the absence of a fully-developed lex specialis of cyber350

See Barr, supra note 10, at 163.
Heller & Sofaer, supra note 196, at 25–28; Onuf, supra note 7, at 428.
352
A defense of the 2017 DoD position and arguments against sovereignty as arule of international law can be found in Gary P. Corn & Robert Taylor, Sovereignty in
the Age of Cyber, 111 AJIL UNBOUND 207, 208 (2017); Robert S. Taylor, Cyber,
Sovereignty, and North Korea–And the Risk of Inaction, JUST SECURITY (Oct. 31, 2017),
https://www.justsecurity.org/46531/cyber-sovereignty-north-korea-risk-inaction/.
351

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space like that applicable to seas, the legally correct conclusion with respect to sovereignty and cyberspace resorts to the baseline rule of sovereign inviolability.
Of course, the independence and exclusivity guaranteed by sovereignty are not absolute. Sovereignty has been limited by States in innumerable respects. The chief logical limit on sovereignty might derivefrom the fact of multiple sovereigns. Because States exercise sovereignty
simultaneously with other States, the logical limit of a State’s own sovereignty—where its sovereignty ends—is where another State’s sovereignty
begins. This notion of sovereign equality—the idea that no State’s sovereignty is superior to that of any other State—is a fundamental, if sometimes theoretical, precept. Thus, even in the absence of an international
system of rules of conduct, sovereignty itself would operate as at least alogical limit on the legitimate conduct of States.
A second, perhaps less esoteric and more tangible limit on sovereign
independence and exclusivity is, of course, the international legal system.
As a collection of prohibitions and limits on State conduct, internationallaw supports a concept of ordered, rather than absolute, sovereignty. The
treaty regimes most universally associated with rules of conduct and primary rules include elaborate exceptions to the baseline freedom of action attendant to sovereignty. Sovereignty might represent a “default law”
in this respect. The Lotus decision and its underlying legal framework are
an illustration of the mechanics of this system of positivist limits on ordered sovereignty. For example, where the Lotus framework and absolute
sovereignty would permit arrest of diplomatic representatives present on
a State’s territory, the international legal system has clearly restrained
sovereignty in this and many other respects.
But just as sovereign freedom of action is subject to exceptions in theform of international legal prohibitions, international law prohibitions
themselves are subject to exceptions. That is, while sovereignty permits
freedom of action and finely-wrought prohibitions developed by States in
the form of international law restrain exercises of sovereignty by States,
States have also afforded themselves exceptions that excuse what would
otherwise be violations of international law prohibitions. For example,
the U.N. Charter acknowledges the legal right of self-defense against uses353
of force and armed attacks.
Thus, through centuries of practice and codification, States have developed an international legal regime that specifically clarifies and limits
the meaning of sovereignty on the seas. Where sovereignty and the Lotus
framework would initially suggest freedom of action on the seas, the lawof the sea, in recognition of territorial sovereignty, restrains States’ use ofother States’ territorial seas.

353

U.N. Charter art. 2, ¶ 4; U.N. Charter art. 51.

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To credit the DoD memo’s position, recent experience is rife with
State cyber practice inconsistent with respect to sovereignty. State cyber
practice is brimming with examples of what the Manual would consider
violations of sovereignty. However, it was not the prerogative of the authors to craft or to fabricate any sort of exception to or legal departurefrom the baseline rule of sovereignty based on such practice. In fact, in
extensive consultations with States, none objected to the Manual’s formulation of sovereignty, none suggested such a departure was warranted,
and none characterized State practice as inconsistent with the rule. In
these circumstances, recognition of a cyber-specific exception to territorial exclusivity would have been recognition of a rationalization or lex
ferenda rather than legislation by States, lex lata.
In truth, the legal significance of the fact of State intrusions into
other States’ cyber infrastructure is still unclear. A possible explanation isthat States infringe cyber sovereignty because they think such acts are notprohibited by international law. But expressions of opinio juris to that effect are not prevalent. The memo appears to offer such a view on cyber
354
sovereignty. Some might regard the memo as a rare expression of opinio
juris. But exactly what account should an international lawyer, an academic, a judge, or another State’s operational legal advisor give thememorandum? It offers a thoroughly reasoned view and has the feelingof a binding directive from a senior government attorney to subordinate
attorneys. But it is an isolated view of a single, though influential, State’s
agency. And it is not yet clear it even reflects the view of any U.S. government agency other than the Department of Defense. To be sure, it
may in the future constitute an early stage of the sort of opinio juris thateventually gives rise to a new understanding of international law, but for
now that conclusion seems dubious and premature.
There are other explanations for seemingly rampant State practice.
For instance, it is possible that States conduct these intrusions and interferences simply because they think they won’t be caught or held accountable. The notorious difficulty of attribution in cyberspace certainly
reinforces the possibility. States seem to invest significant resources tocover their cyber tracks and States seem persistently to deny involvement
in malicious cyber operations even long after the technical community
purports to have definitively resolved attribution.
In a somewhat related sense, it is possible that States judge that suchoperations, to borrow a concept from contract law, amount to efficient
breach. That is, perhaps States conclude frequently that the benefits ofnonconsensual intrusions outweigh the costs. The reluctance of tribunals
to award significant damages or reparations for simple breaches of sover355
eignty, as in the Corfu Channel case, would support such logic. More354
355

Memorandum from Jennifer M. O’Connor, supra note 310, at 4.
See, e.g., Corfu Channel (U.K. v. Alb.), Judgment, 1949 I.C.J. Rep. 4 (Apr. 9).

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likely, both the minimal consequences of simple breaches of cyber sovereignty and the low likelihood of being caught—in other words the risk
associated with intrusive cyber operations—is low enough to make themworth undertaking.
And admittedly, not all States complain when other States violate
their cyber sovereignty. The United States, for instance, has remained
conspicuously silent with respect to allegations of international wrongfulness following recent cyber breaches. But explanations other than lawfulness of those events are available. First, protest as to unlawfulness is
not an element of wrongfulness. States need not allege wrongfulness
publicly or with any level of intensity or vigor for State conduct to be
wrongful. Second, although not a defense in criminal proceedings, the tu
quoque retort may give some States, and especially cyber-active States likethe U.S., pause with respect to alleging violations by other States.
Finally, the litany of State practice involving apparent cyber interferences should not be taken as the final word on State practice. A complete
picture of State practice must surely account for forbearance as well as
indulgence. Flaunting a catalog of intrusions as representative of State
practice ignores the significant likelihood that States just as often, or
perhaps more frequently, decline to interfere with other States’ cyber infrastructure as they interfere with it. Such duels of accumulated State
practice tend not to adequately account for negative practice, instancesin which States decline to engage in or never even seriously entertain operations involving violations of sovereignty. Accordingly, and for the reasons offered above, State practice as evidence of law must be treated withgreat caution.
Until States develop a cyber-specific regime of exceptions to thebaseline rule of sovereignty respecting territorial property, the best conclusion regarding interferences with independent and exclusive control
of territorial cyber infrastructure is that they violate sovereignty and areinternationally wrongful. A contrary conclusion would involve a lawmaking function reserved exclusively to the community of States. It
would fly in the face of States’ clear indication that international law applies to operations in cyberspace. It would have rendered essentially anullity, the momentous conclusion that international law applies to cyberspace. Thus, conclusions with respect to most cyber-specific sovereignty exceptions are for now premature. But this could change.
A final consideration commending application of territorial sovereignty to cyberspace is consequentialist in nature. A world that does notprohibit violations of sovereignty not only renders the concept of sovereignty somewhat meaningless, it yields a dangerous and even Hobbesian
world. One of the more effective passages of the Manual is the observa356
tion that connection to cyberspace is not a waiver of sovereignty. The
356

TALLINN MANUAL 2.0, supra note 266, at 12–13.

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thought might be expanded to say resort to electronic media and cyber
infrastructure is not a waiver of sovereignty. The fact that cyber infrastructure is vulnerable to interference by other States does not rendersuch interference lawful, just as a porous territorial border does not render violations of that border lawful.
VI. CONCLUSION
If substantiated, reports of Operation Glowing Symphony stand as acompelling glimpse of the growing and daunting cyber capabilities ofStates, the contentious environment of international relations in cyberspace, and the extent to which longstanding norms against foreign interference are under growing pressure. As a testament to the gravity of thispressure, the current state of cyber relations led the highest placed legal
authorities of the largest agency of the U.S. government to abandon along-held position on the sanctity of territorial sovereignty.
Early in the life of cyberspace, States appreciated that such adjustments to norms of international law might be called for. In its 1999 legal
assessment of international law in cyberspace, the U.S. Department of
Defense observed,[W]e can make some educated guesses as to how the international
legal system will respond to information operations, but the direction that response actually ends up taking may depend a great deal
on the nature of the events that draw the nations’ attention to theissue. If information operations techniques are seen as just anothernew technology that does not greatly threaten the nations’ interests,
no dramatic legal developments may occur. If they are seen as arevolutionary threat to the security of nations and the welfare of
their citizens, it will be much more likely that efforts will be made to
restrict or prohibit information operations by legal means.357

Given its revolutionary technical, strategic, economic, and politicalcharacter, it is not unreasonable to expect cyberspace to exact comparably revolutionary changes to international law. In developments like theU.S. Department of Defense memo on territorial sovereignty, we may bewitnessing the opening rounds of a struggle for the legal soul of cyberspace. Will cyberspace operate as a Hobbesian free-for-all where sovereignty exists only in a nominal sense? Or will the Grotian community ofStates survive with its imperfect, though foundational baseline guarantees
of territorial integrity and exclusivity? While the latter view is promisingly,
if vaguely and haltingly, evident in the work of the United Nations Groupof Government Experts, Hobbesian tendencies have surfaced in State
practice and have been seemingly memorialized in the memo. With its

357

Dep’t of Def., supra note 254, at 2.

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low-entry costs, near-ubiquity, and potential to wreak anonymous havoc,
cyberspace feels in many respects a Hobbesian domain.
But the history, purpose and fundamental character of territorial
sovereignty make clear its role as an essential organizing concept of international relations and as a rule of conduct that has tamed destructive
Hobbesian tendencies. To be sure, sovereignty has not been a static con358
cept. Despite its fundamental character, sovereignty has been “a vague
359
formula, with shifting components and uses.” Conventional rules havebeen ignored in some contexts, new rules have been written for special360
ized domains of international relations. And entire reconceptualizations, such as the proposal for a “new sovereignty,” have been proposed361(and seemingly rejected) as recently as the late twentieth century. But
absent clear and rigorous adoption of such innovations, the historicalbaseline of territorial sovereignty, including a prohibition on territorialinterferences, persists as important guarantor of peaceful relations between States.
The U.S. Department of Defense should act quickly to reaffirm its
commitment to baseline Westphalian norms of territorial sovereignty incyberspace while crafting, through accepted means of international legal
development, a nuanced and effective doctrine of territorial sovereignty
in cyberspace. A sound approach would acknowledge the binding legal
character of territorial sovereignty as a limit on foreign interference but
offer an emerging cyber-specific understanding much like that developed
for other domains that have challenged national security and peacefulinteractions between States.

358

Besson, supra note 349, at ¶ 8 (citing Richard Falk, Sovereignty, in THE OXFORDCOMPANION TO POLITICS IN THE WORLD 789 (Joel Krieger ed., 2d ed. 2001)).
359
Heller & Sofaer, supra note 196, at 24.
360
PROBLEMATIC SOVEREIGNTY: CONTESTED RULES AND POLITICAL POSSIBILITIES,
supra note 16, at viii.
361
See CHAYES & CHAYES, supra note 17, at 22.