Violations of Sovereignty in “Cyberspace” Under the United Nations Charter

Abstract

Affirming that violating State sovereignty through and against “cyber” infrastructure could be covered by the scope of Art. 2(4) and (7) of the United Nations Charter is one of the most pressing challenges that faces international law today. This article aims to address this issue by expanding on a general taxonomy outlined in the Tallinn Manual 2.0 on violations of sovereignty in “cyberspace”. These violations are categorised as conducts leading to either “infringement upon the target State’s territorial integrity” or “interference or usurpation of inherently governmental functions”. In order to map the taxonomy of the Tallinn Manual 2.0 onto Art. 2(4) and (7), it is necessary to highlight the convergence between territorial sovereignty and “cyberspace” that allows for extending the scope of application of Art. 2. Through recognising data as “assets” that can be subject to a functional sovereignty, that in turn could be subject to unlawful use of force in violation of the general ban codified in Art. 2(4) as an “infringement upon the target State’s territorial integrity”. Extending the scope of Art. 2(7) is contingent upon defining the concept of intervention as a conduct aiming to unlawfully assume an exclusive competence of a State by another State. Under this concept, intervention in “cyberspace” could be envisaged as attempts to gain control over the functionality of certain “cyberspace” infrastructure that is instrumental for the manifestation of State exclusive competences. A process that demands taking control of that entity to an extent impinging the regular functioning of the targeted entity beyond the mere manipulation of data. Under the proposed definition of intervention such conduct of “interference or usurpation of inherently governmental functions” can constitute a violation to the principle of non-intervention as codified by Art. 2(7).