Era of Digital Sovereignty and its impact on International Cyber Law

Challenges to International Law and Cyberspace Governance Currently Existing

"Law is an ordinance of reason for the common good, made by people who have care for the community," Thomas Aquinas wrote in his magnum opus Summa Theologica (Aquinas, 1981). Unfortunately, this proverb may not always apply to international cyberspace law. Since it is difficult for actors to reach agreements in cyberspace, let alone create agreeable enforceable law, the lack of effective international legal tools on cyberspace has mostly been explored in theoretical and policy-making debates. The divisive academic debates primarily distinguish between those who think states should play more significant roles in forming international law on cyberspace and those who insist that cyberspace should remain a free and diffused domain.

 

All of these discussions converge on one idea: the complexity and jurisdiction of actors in the cyber environment result in the absence of an international legal framework for cyberspace. This has been made more difficult by the fact that over the past few years, a number of international actors—mostly state actors—have promoted the concept of "digital sovereignty" in order to further their desire to regain control over information, communication, data, and internet infrastructure . Therefore, the question that needs to be answered is: Does international law apply to nations' behaviour on the internet in the era of digital sovereignty? There are two primary discussions in this article:

 

1) Current issues with international cyberlaw and governance, and 2) International cyberlaw and digital sovereignty. in light of recent challenges to public international law concerning jurisdiction, arbitration, and legal instruments and jurisprudence, the binding and well-established international law on cyberspace does not effectively apply to states. Due to the growing trend of promoting digital sovereignty standards, future international law on cyberspace would also scarcely apply to state behaviour.

 

Challenges to International Law and Cyberspace Governance Currently Existing

 

It is not very innovative to consider using international law to govern cyberspace. Since 1996, nations, commercial entities, and legal experts have all proposed (and denied) many draughts of an international internet law. The three main perspectives on how international law should govern cyberspace are liberal institutionalists, cyberlibertarians, and statists. Many  liberal institutionalists argue that multilateralism based on rules and international institutions are crucial for regulating cyberspace. While other cyberlibertarians advocate for keeping cyberspace free from oppression and any laws that would limit internet liberty. Statists, think that states should create domestic and international law to regulate the internet. These three widely accepted concepts are reflected in the emergence of international cyberspace law. Due to these ongoing controversial discussions, there is still no binding and effective international legislation on cyberspace. These discussions centre on three key issues that are relevant to the fundamental concepts and features of international public law: jurisdiction, arbitration, and legal instruments and jurisprudence.

 

Many discussions on attribution on cyber behaviour have been published in academic texts or policymaking. However, there is no dominant voice in that discussion, with the exception of those instances when it is generally accepted and operating under international regimes, as is the case with Interpol, Europol, ASEANAPOL, and UNODC. International players disagree on the status of cyberspace in terms of its domain, including whether it belongs to the territory of physical states, the global commons, or is based on national origins. Due of this, it has been extremely difficult to establish jurisdiction for international cyber law up to this point.

 

Arbitration is made more difficult by the intricacy of the actors and issues mentioned above. To ensure that law is enacted and binding on its signatories and subjects, public international law requires crystal-clear dispute resolution procedures including arbitration. There is yet no globally accepted legal standard achieved on who should be given the mandate of dispute settlement processes and arbitration in cyberspace law due to the diversity of its actors. There is already cyberspace arbitration, but it typically relates to commerce and crime and is conducted in a national court rather than an international one. Because governments likely have more negotiating power in such a judicial system, this could potentially compromise the impartiality of the law. However, the possibility of international arbitration in cyberspace is not unheard of. Given that Hague already has jurisdiction over matters related to space, energy, and the environment, The Hague's Permanent Court of Arbitration may be considered as a party to adjudicate disputes involving cyberspace.

 

Regarding arbitration, one must consider the difficulties that jurisprudence and legal tools face in internet. National and international levels are where both take place. In developed nations, online legal frameworks are comparatively already well-formed. Disparities in legal systems of various countries demonstrate how national legal systems are to blame for the lack of effective international cyberspace law. There isn't much cybersecurity law in existence on a global scale. There is a treaty on cyberspace called the Budapest Convention, which is said to be the only one in the world. However, it is impossible to ignore the reality that this system focuses heavily on cybercrime, tends to be state-centered, and lacks a binding dispute resolution mechanism. Various organisations, including the ITU, ICANN, and the Internet Governance Forum, are working to create regulations for the basic rules, values, and operationalities that govern cyberspace. Unfortunately, none of them successfully circumvents the ineffectiveness with which international law applies to states and addresses challenges in cyberspace other than cybercrime and technicalities. None of those succeeds in producing adequate and enforceable international legal precedents. Therefore, international cyberlaw is currently ineffective and more challenging to enforce on state actors.

 

Conclusion

 

The above-discussed subject of whether international law governs governments' actions in cyberspace indicates that the answer is ineffective. The three areas of international law—jurisdiction, arbitration, and legal instruments & jurisprudence—where there have been and still are issues, are where it originated. Future international cyberspace law may become difficult to effectively impose on state players due to the tendency toward increasingly supported digital sovereignty rules. If at all, digital sovereignty will tamper with future international cyber law to the detriment of non-state actors' interests. State actors can barely be protected by international law on cyberspace, highlighting the need for larger calls for the formulation of rule-based, libertarian, and inclusive global online standards.

Dr Poornima Surve
Advocate/Professor
Nov. 10, 2022, 12:09 p.m.