Eric Talbot Jensen,
Cyber Sovereignty: The Way Ahead,
50 Tex. Int'l L. J. 275,
Available at: https://digitalcommons.law.byu.edu/faculty_scholarship/239
The last few years are full of reports of cyber incidents, some of which have caused significant damage. Each of these cyber events raise important questions about the role and responsibility of States with respect to cyber incidents. The answer to these questions revolves in large part around the international law doctrine of sovereignty. The extent to which nations exercise sovereignty over cyberspace and cyber infrastructure will provide key answers to how much control States must exercise and how much responsibility States must accept for harmful cyber activities when they fail to adequately do so. This article argues that States have sovereign power over their cyber infrastructure and that with that sovereign power comes corresponding responsibility to control that infrastructure and prevent it from being knowingly used to harm other States. This responsibility to prevent external harm extends not only to state actors, but also to non-state actors. This article will review some of the cardinal principles of sovereignty and their application to cyberspace and then consider the corresponding duties and obligations. In each case, the principle of sovereignty will be stated and defined. Its application to cyberspace will then be discussed, including the corresponding duty or obligation that arises from that assertion of sovereignty. Examples of the duty and obligation will be used to help clarify the analysis. Finally, issues that arise from the assertion of that authority and its corresponding duty or obligation will be highlighted.
50 Tex. Int'l L. J.