Sovereignty

== Definition ==
Sovereignty
Sovereignty is a core principle of international law. According to a widely accepted definition of the term in the 1928 Island of Palmas arbitral award,[s]overeignty 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 a State.Island of Palmas (Neth. v. U.S.), 2 RIAA 829, 838 (Perm. Ct. Arb. 1928).Multiple declarations by the UN,UNGA Res 71/237 (30 December 2015) UN Doc A/RES/20/237. the African Union, African Union Peace and Security Council, "Common African Position on the Application of International Law to the Use of Information and Communication Technologies in Cyberspace" (29 January 2024). the European Union, Council of the European Union,"Council Conclusions on the Joint Communication to the European Parliament and the Council: Resilience, Deterrence and Defence: Building strong cybersecurity for the EU" (Council conclusions, 20 November 2017). NATO,North Atlantic Treaty Organization, 'Wales Summit Declaration' (issued by the Head of State and Government participating in the meeting of the North Atlantic Council in Wales (5 September 2015) para 72. OSCE,Organization for Security and Cooperation in Europe, Decision No. 1202, OSCE Confidence-Building Measures to Reduce the Risks of Conflict Stemming from the Use of Information and Communication Technologies (Permanent Council, 10 March 2016) PC.DEC/1202. and individual States have confirmed that international law applies in cyberspace. Accordingly, so too does the principle of sovereignty.See UNGA, Report of the Group of Governmental Experts on Developments in the Field of Information andTelecommunications in the Context of International Security, UN Doc A/68/98 (24 June 2013) para 20; UNGA, Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security, A/70/174 (22 July 2015) paras 27, 28(b); UNGA, Report of the Group of Governmental Experts on Advancing Responsible State Behaviour in Cyberspace in the Context of International Security, A/76/135 (14 July 2021) paras 70, 71(b). However, there is some debate as to whether this principle operates as a standalone rule of international law, the breach of which gives rise to state responsibility. 
* For the proponents of this view, the prohibition on violating the sovereignty of other States is a substantive primary rule of international law, the breach of which is an internationally wrongful act. This view was unanimously accepted by the experts who prepared the Tallinn Manual 2.0.Michael N Schmitt, 'Virtual Disenfranchisement: Cyber Election Meddling in the Grey Zones of International Law' (2018) 19 ChiJIntlL 30,40; Tallinn Manual 2.0, rule 4 (‘A State must not conduct cyber operations that violate the sovereignty of another State’), and commentary to rule 4, para 2 (‘States shoulder an obligation to respect the sovereignty of other States as a matter of international law’). It has also been adopted by several States including Austria,Austria, Pre-Draft Report of the OEWG - ICT: Comments by Austria (31 March 2020), stating that ‘a violation of the principle of State sovereignty constitutes an internationally wrongful act – if attributable to a State – for which a target State may seek reparation under the law of State responsibility’. Brazil, Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 18. Canada,Government of Canada, International Law applicable in cyberspace (April 2022) para 13. the Czech Republic,Czech Republic, Statement by Mr. Richard Kadlčák, Special Envoy for Cyberspace, 2nd substantive session of the Open-ended Working Group on developments in the field of information and telecommunications in the context of international security (11 February 2020), stating that ‘[t]he Czech Republic concurs with those considering the principle of sovereignty as an independent right and the respect to sovereignty as an independent obligation.’ Estonia,Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 25. Finland,Finland, ‘International law and cyberspace: Finland’s national positions’ (15 October 2020), 3, stating that ‘Finland sees sovereignty as a primary rule of international law, a breach of which amounts to an internationally wrongful act and triggers State responsibility. This rule is fully applicable in cyberspace.’ France,French Ministry of the Armies, ‘International Law Applied to Operations in Cyberspace’, 9 September 2019, stating that ‘Any unauthorised penetration by a State of French systems or any production of effects on French territory via a digital vector may constitute, at the least, a breach of sovereignty’. Germany,Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), p. 3, noting that ‘Germany agrees with the view that cyber operations attributable to States which violate the sovereignty of another State are contrary to international law’. Iran,Iran, ‘Declaration of General Staff of the Armed Forces of the Islamic Republic of Iran Regarding International Law Applicable to the Cyberspace’ (July 2020), para 4 (‘Any utilization of cyberspace if and when involves unlawful intrusion to the (public or private) cyber structures which is under the control of another state, maybe constituted as the violation of the sovereignty of the targeted state.’). Italy,Italian Ministry for Foreign Affairs and International Cooperation, ‘Italian position paper on “International law and cyberspace”’ (2021) 4. Japan,Ministry of Foreign Affairs of Japan, ‘Basic Position of the Government of Japan on International Law Applicable to Cyber Operations’ (16 June 2021) 3. the Netherlands,Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019), stating that ‘countries may not conduct cyber operations that violate the sovereignty of another country’. New Zealand,New Zealand Foreign Affairs and Trade, ‘The Application of International Law to State Activity in Cyberspace’ (1 December 2020) 2. Norway,Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 67. RomaniaOfficial compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 76. and Sweden.Government Offices of Sweden, ‘Position Paper on the Application of International Law in Cyberspace’ (July 2022) 2.
* By contrast, the opposing view is that sovereignty is a principle of international law that may guide State interactions, but it does not amount to a standalone primary rule.Gary P. Corn and Robert Taylor, ‘Sovereignty in the Age of Cyber’ (2017) 111 AJIL Unbound 207, 208 (arguing that sovereignty is ‘a principle of international law that guides state interactions’). This view has been adopted by one State, the United Kingdom,Jeremy Wright, ‘Cyber and International Law in the 21st Century’ (23 May 2018) (stating that he was ‘not persuaded that we can currently extrapolate from that general principle a specific rule or additional prohibition for cyber activity beyond that of a prohibited intervention. The UK Government’s position is therefore that there is no such rule as a matter of current international law’). The approach has been maintained in UK’s 2021 and 2022 national positions. and has been partially endorsed by the U.S. Department of Defense General Counsel.Paul C. Ney, DOD General Counsel Remarks at U.S. Cyber Command Legal Conference, 2 March 2020, arguing that ‘the Department believes there is not sufficiently widespread and consistent State practice resulting from a sense of legal obligation to conclude that customary international law generally prohibits such non-consensual cyber operations in another State’s territory’. By this approach, cyber operations cannot violate sovereignty as a rule of international law, although they may constitute prohibited intervention, use of force, or other internationally wrongful acts.
The remainder of this section proceeds on the basis of the former “sovereignty-as-rule” approach. Those espousing the latter “sovereignty-as-principle” approach should refer to other relevant sections of the legal analysis (such as that on the prohibition of intervention or use of force).
It is understood that sovereignty has both an internal and an external component.Cf. James Crawford, Brownlie's Principles of Public International Law (OUP 2012) 448. In the cyber context, the “internal” facet of sovereignty entails that “[a] State enjoys sovereign authority with regard to the cyber infrastructure, persons, and cyber activities located within its territory, subject to its international legal obligations.” Tallinn Manual 2.0, rule 2.Sovereignty over cyber infrastructure derives from the traditional concept of sovereignty, independent of the use of cyberspace. See Wolff Heintschel von Heinegg, 'Territorial Sovereignty and Neutrality in Cyberspace' (2013) 89 Int’l L. Stud. 123 (noting that '[t]erritorial sovereignty [..] implies that, subject to applicable customary or conventional rules of international law, the State alone is entitled to exercise jurisdiction, especially by subjecting objects and persons within its territory to domestic legislation and to enforce these rules'). This has been endorsed by several States, including China, the Czech Republic, Estonia, Finland, France, Germany, Israel, Italy, the Netherlands, Norway, Sweden, Switzerland and the United States. This encompasses both private and public infrastructure.Tallinn Manual 2.0., commentary to rule 4, para 5. See also the national positions of Norway, Sweden and Switzerland. The external component entails that States are “free to conduct cyber activities in [their] international relations”, subject to their international law obligations.Tallinn Manual 2.0., rule 3; see also the national positions of the Czech Republic, the Netherlands and Norway. 
As a general rule, each State must respect the sovereignty of other States.UN GA Res 2625 (XXV) (24 October 1970) (Friendly Relations Declaration), preamble (emphasizing “that the purposes of the United Nations can be implemented only if States enjoy sovereign equality and comply fully with the requirements of this principle in their international relations”); Tallinn Manual 2.0, rule 4.However, within the cyber realm – and particularly regarding remote cyber operations – there is still no agreement on the criteriaSome States have referred to the nature of the operation, its consequences, and/or the scale or severity of the effects, as the relevant factors that should be assessed. See e.g. the national positions of Canada, Finland, Germany, New Zealand, Norway, Sweden and Switzerland. New Zealand also highlighted the nature of the target in this regard. and the required thresholdSome States have highlighted the requirement of certain level beyond “negligible” or “de minimis” effects, such as Canada and Germany. See similarly, New Zealand’s national position. For further discussion on the required threshold, see Michael N Schmitt and Liis Vihul, ‘Respect for Sovereignty in Cyberspace’ (2017) 95 Texas Law Review 1639; Harriet Moynihan, ‘The Application of International Law to State Cyberattacks. Sovereignty and Non-Intervention’, Chatham House (2 December 2019) paras 60 and ff. to qualify an operation as a sovereignty violation.Michael Schmitt, ‘Sovereignty, Intervention, and Autonomous Cyber Capabilities’ (2020) 96 International Law Studies 549. It is clear that a cyber operation with severe destructive effects, comparable to a “non-cyber” armed attack or a use of force against a State, constitutes a violation of its sovereignty; however, with more subtle cyber operations, the question is far from settled.Tallinn Manual 2.0, commentary to rule 4, para 5 and 12. Accordingly, the assessment needs to be done on a case-by-case basis.See e.g. the national position of Canada, Finland, New Zealand, Norway, Sweden and Switzerland.
The following modalities, highlighted in the Tallinn Manual 2.0, represent different ways of determining what a “sovereignty violation” might mean in the context of cyber operations:
# A State organ conducting cyber operations against a target State or entities or persons located there while physically present in the target State's territory violates the target State's sovereignty.See, eg, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) (Judgment) [2015] ICJ Rep 665, 704–05, paras 97–99 (holding that the presence of Nicaragua’s military personnel in the territory under Costa Rica’s sovereignty amounted to a violation of Costa Rica’s territorial sovereignty); see also Tallinn Manual 2.0, commentary to rule 4, para 6. This was agreed by all Experts drafting the Manual; however, “a few” of the Experts thought that the extensive State practice carved out an exception for espionage operations.Tallinn Manual 2.0, commentary to rule 4, para 7; commentary to rule 32, para 9. See also, the national positions of Canada and New Zealand.
# Causation of physical damage or injury by remote means;Tallinn Manual 2.0, commentary to rule 4, para 11. again, “a few” Experts took the position that this is a relevant but not a determinative factor by itself.Tallinn Manual 2.0, commentary to rule 4, para 12.
# Causation of a loss of functionality of cyber infrastructure: although the Tallinn Manual 2.0 experts agreed that a loss of functionality constituted “damage” and thus a breach of sovereignty, no consensus could be achieved as on the precise threshold for a loss of functionality (the necessity of reinstallation of the operating system or other software was proposed but not universally accepted);Tallinn Manual 2.0, commentary to rule 4, para 13. Additionally, there was agreement between the experts that ‘a cyber operation necessitating repair or replacement of physical components of cyber infrastructure amounts to a violation because such consequences are akin to physical damage or injury’. See also in this respect Canada’s national position. Below this threshold, there was no agreement among the Experts whether operations that do not cause physical consequences or a loss of functionality qualify as a violation of sovereignty.Tallinn Manual 2.0, commentary to rule 4, para 14.
# Interference with data or services that are necessary for the exercise of "inherently governmental functions";Tallinn Manual 2.0, commentary to rule 4, para 15. although the Experts could not conclusively define the term "inherently governmental functions", they agreed that, for example, the conduct of elections would so qualify.Tallinn Manual 2.0, commentary to rule 4, para 16. Other examples may include law enforcement, taxation, foreign relations and national defense. See e.g. the national positions of Canada, Germany and Norway. See also Michael Schmitt, ‘Sovereignty, Intervention, and Autonomous Cyber Capabilities’ (2020) 96 International Law Studies 549, 557. 
# Usurpation of "inherently governmental functions", such as exercise of law enforcement functions in another State’s territory without justification.Tallinn Manual 2.0, commentary to rule 4, para 18.
The Tallinn Manual’s view of what constitutes a violation of sovereignty has been expressly endorsed by several States including Canada,Government of Canada, International Law applicable in cyberspace (April 2022) para 13. GermanyGermany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), p. 4. and the Netherlands;Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019), p. 3. and followed to some extent by other States, such as the Czech Republic,Richard Kadlčák, Statement of the Special Envoy for Cyberspace and Director of Cybersecurity Department of the Czech Republic (11 February 2020) 3. Norway,Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 68. SwedenGovernment Offices of Sweden, Position Paper on the Application of International Law in Cyberspace (July 2022) 2 and Switzerland.Federal Department of Foreign Affairs, ‘Switzerland's position paper on the application of international law in cyberspace’ (May 2021) 3. An alternative test has been proposed by France, which argues that a breach of sovereignty occurs already when there is “any unauthorised penetration by a State of [the victim State’s] systems”;Ministry of Defense of France, 'International Law Applied to Operations in Cyberspace' (9 September 2019) 6.similarly, Iran has argued that “unlawful intrusion to the (public or private) cyber structures” abroad may qualify as a breach of sovereignty.Declaration of General Staff of the Armed Forces of the Islamic Republic of Iran Regarding International Law Applicable to the Cyberspace (August 2020) para 4 (‘Any utilization of cyberspace if and when involves unlawful intrusion to the (public or private) cyber structures which is under the control of another state, maybe constituted as the violation of the sovereignty of the targeted state’).
Attributing the relevant cyber operation to a State different from the target State is a necessary prerequisite for qualifying the cyber operation as a violation of the target State's sovereignty. 
Whether non-State actors can violate territorial sovereignty on their own is a matter of disagreement.In favour: see, e.g., Theodore Christakis, ‘The ICJ Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?’ (2011) 24 LJIL 73, 84; Marcelo Kohen, ‘The Court’s Contribution to Determining the Content of Fundamental Principles of International Law’ in Giorgio Gaja and Jenny Grote Stoutenburg (eds), Enhancing the Rule of Law through the International Court of Justice (Brill 2012) 145. Against: see, eg, Tallinn Manual 2.0, commentary to rule 4, para 3; Romania’s national position (‘If there is not a State or State endorsed operation one can speak of a criminal act, which should be investigated and punished in accordance with the criminal law of the State concerned’).
Publicly available common and national positions that address this issue include:
 (2024),
 (2024),
 (2020),
 (2024), 
 (2021),
 (2022), 
 (2021),
 (2023),
 (2020),
 (2024), 
 (2023),
 (2019), 
 (2021), 
 (2020), 
 (2019), 
 (2021), 
 (2020), 
 (2023),
 (2020),
 (2021),
 (2021), 
 (2021), 
 (2019), 
 (2020), 
 (2021),
 (2023),
 (2022),
 (2021), 
 (2021),
 (2022), 
 (2021), 
 (2018), 
 (2021),
 (2022), 
 (2012), 
 (2016), 
 (2020),
 (2021).
==Common positions==
===African Union (2024)===
===European Union (2024)===
==National positions==
===Australia (2020)===
=== Austria (2024) ===
===Brazil (2021)===
===Canada (2022)===
===China (2021)===
===Costa Rica (2023)===
===Czech Republic (2020)===
===Czech Republic (2024)===
===Denmark (2023)===
===Estonia (2019)===
===Estonia (2021)===
===Finland (2020)===
===France (2019)===
===Germany (2021)===
===Iran (2020)===
===Ireland (2023)===
===Israel (2020)===
===Italy (2021)===
===Japan (2021)===
===Kenya (2021)===
===Netherlands (2019)===
===New Zealand (2020)===
===Norway (2021)===
===Pakistan (2023)===
===Poland (2022)===
===Romania (2021)===
===Singapore (2021)===
===Sweden (2022)===
===Switzerland (2021)===
===United Kingdom (2018)===
===United Kingdom (2021)===
===United Kingdom (2022)===
===United States (2012)===
===United States (2016)===
===United States (2020)===
===United States (2021)===
==Appendixes ==
===See also===
*Scenario 01: Election interference
* Scenario 02: Cyber espionage against government departments
*Scenario 03: Cyber operation against the power grid
*Scenario 05: State investigates and responds to cyber operations against private actors in its territory
*Scenario 07: Leak of State-developed hacking tools
*Scenario 08: Certificate authority hack
*Scenario 09: Economic cyber espionage
* Scenario 11: Sale of surveillance tools in defiance of international sanctions
*Scenario 14: Ransomware campaign
*Scenario 17: Collective responses to cyber operations
*Scenario 20: Cyber operations against medical facilities
*Scenario 23: Vaccine research and testing
*Scenario 24: Internet blockage
===Notes and references===
===Bibliography and further reading===
Category:Sovereignty
Category:Legal concepts