Author: Amaya Novas-Peña
September 19, 2024
Introduction
Cyberspace is generally understood as the complex web of interactions between vast digital networks, including both infrastructure (i.e. servers, computers, internet) and the information it holds. This virtual space is invaluable to modern daily life, serving as the backbone of global communication, commerce, and governance. However, the rapid expansion of this digital realm has outpaced the development of international law, posing significant challenges to safeguarding both human rights and global security.
This article analyzes the intersection of cyberspace and international law, highlighting the difficulties of applying traditional legal frameworks to this relatively novel domain. From an international human rights law perspective, it underscores the serious threats that the absence of robust cyber regulations poses to global security and human rights, both at the state and individual levels. Further discussion explores the unique challenges presented by cyberspace and proposes how to implement regulatory measures in this domain.
Is Cyberspace Beyond the Reach Of Law?
Despite portrayals as a non-appropriable global common, it is a misconception that cyberspace is untouched by state sovereignty. Rather, cyberspace is highly regulated by national jurisdictions that dictate service providers' activities and impose sanctions against those who commit cybercrimes.
Whereas there was past debate on whether traditional legal theories apply in a borderless, intangible space, it is now generally accepted by states and international organizations that international law extends to cyberspace. Along with extensive work detailing international law’s application to cyberspace, a 2015 report of a United Nations (UN) Group of Governmental Experts (GGE) found that international law principles of state sovereignty, peaceful means of dispute settlement, and non-intervention apply. It further found that states must comply with their legal obligations to respect and protect human rights and fundamental freedoms in this domain. Moreover, the UN Human Rights Council (UNHRC) affirmed that the right of freedom of expression covered by Articles 19 of the ICCPR and Universal Declaration of Human Rights, must also be protected online regardless of frontiers or media form, deeming internet access a human right itself.
In 2021, a UN Open-Ended Working Group (OEWG), made significant strides in promoting cyber security and governance, releasing a report outlining a framework agreed upon by all UN member states for responsible state behavior in cyberspace. Cyber norms refer to the collective expectations for proper state behavior in cyberspace based on shared beliefs and understanding of their existence. While they are closely related, cyber norms are not binding rules in international law and do not impose obligations on states.
While recognition of the potential application of international law principles to cyberspace and the creation of a normative framework are crucial first steps, their lack of codification into international law does not ensure adherence to these norms nor enable states to take action against violations.
Challenges Applying International Law to Cyberspace
Aside from the Council of Europe’s Budapest Convention on Cybercrime and the African Union’s Convention on Cyber Security and Personal Data Protection, there has been limited progress in codifying cyber norms into international law. The adoption of the UN Charter predates the emergence of cyberspace, creating inherent challenges applying legal provisions based on traditional notions of state supremacy and physicality to a space largely led by private institutions and transnational entities. Hence, a critical issue states face is asserting state sovereignty in this digital realm, a prerequisite to establishing jurisdiction.
Some additional complications include a lack of customary law, continued state silence on the topic, and existential disagreements on the application of existing international norms. Attribution is a notable technical, political, and legal challenge given the prevalence of non-state actors. This complicates the application of existing legal frameworks for state responsibility, as current standards for effective and overall control are ambiguous regarding when states may incur human rights obligations for cyber-related misconduct. Another obstacle to international regulation of cyberspace is its immeasurable scope, which challenges existing models of jurisdiction that rely on spatial elements.
Dangers of Lack of Cyber Regulation To International Human Rights And Security
The current fragmentation of cyber norms and lack of consensus on regulation has led to a dangerous environment where cross-border cybercrimes can thrive, posing severe threats to both states and individuals.
State Level
At the state level, the absence of clear and enforceable international regulation has enabled cyberwarfare, including espionage, surveillance, and institutional data breaches. The 2015 UN GGE report expresses concern for the misuse of information technology to undermine international peace and stability, highlighting its increasingly likely use in future conflicts and the risk of attacks against states’ critical infrastructure and information systems. Additionally, there is increasing concern about cyber hacks from foreign adversaries seeking to undermine democratic processes such as elections. Without a global framework to ensure accountability, these activities can escalate unchecked. Insufficient monitoring capabilities and transparency further exacerbate these issues, as states may engage in cyber aggression without fear of reprisal.
As national militaries and intelligence agencies bolster their cyber capabilities, cyberspace has been described as the new fifth military domain. This shift reflects an increasing recognition of cyber-attacks not only for their debilitating effects but also as a cost-effective and efficient means for covert operations. Often, state-level cyber operations operate concurrently with ongoing armed conflicts or can strain already tense relationships between nations. It is increasingly common for states to take advantage of anonymity in the space to surveil their enemies and allies alike, minimizing their exposure by operating through third-party organizations.
Whereas the UN charter and customary international law outlaw the use or threat of military force against another state, there is no clear definition of what constitutes a use of force in cyberspace. The limited state practice categorizing cyber-attacks as unlawful uses of force, coupled with challenges demonstrating tangible harm to victims, complicates the determination of when defensive force might be legally justified. This issue is further complicated by the difficulty in distinguishing between civilians and combatants in this domain. For example, the 2007 cyber-attacks that crippled Estonia's computer networks and were linked to Russian government operatives lacked grounds to find Russia responsible under international law. Similarly, the 2010 discovery of the ‘Stuxnet’ computer virus that damaged Iran’s nuclear program led to suspicion of joint US-Israeli collaboration on the cyberweapon, however, culpability was never proved and there is only a weak claim either country violated international law. In 2024, Australia, the United States, Canada, the United Kingdom, Germany, Japan, South Korea, and New Zealand warned of the threat of Chinese state-sponsored cyber activity to their networks, after numerous cyber attacks on government agencies were reported.
Individual Level
The consequences of weak cyber regulation are equally dire at the individual level. Personal data breaches, including phishing scams, ransomware attacks, and other forms of cybercrime, have become increasingly common. Moreover, the reach provided by cyberspace has facilitated heinous activities such as sex trafficking and gender-based violence, slavery, drug trade, assault, and murder. Some of the infringed and endangered human rights in cyberspace are that of expression, information, property, association, discrimination, and participation.
Cyberspace’s pervasive nature and ease of anonymity create a breeding ground for online hate crimes that threaten the rights to individual development and progress, women and children, and minorities. An additional dilemma to safeguarding human rights in cyberspace is the notion of public privacy, where ostensibly anonymous actions using private platforms, passwords, and social media leave a digital trail that can be shared if the data is not properly protected, sold, or hacked, often occurring unknown by users. In 2022, around 480,000 incidents of cyberattacks were reported in the United States.
International laws often do not recognize certain acts as violations of freedoms or privacy unless they cause physical harm to the integrity of a person or group, limiting whether specific breaches of cyber norms constitute human rights violations. Although tracing offline impacts is challenging, growing evidence indicates that malicious cyber activities can lead to severe real-world consequences. For instance, online incitement to violence or murder can translate into real-world threats and aggression, while data breaches, false accusations, or leaks of intimate images can result in employment loss or, in extreme cases, suicide.
Other Dangers
One particularly alarming form of cyber activity that impacts both states and individuals is terrorism. Organizations such as the Islamic State’s United Cyber Caliphate have taken advantage of the space’s anonymity for recruitment, financing, information collection and operation coordination. Groups such as Anonymous have popularized ‘hacktivism’, targeting governmental and private organizations’ digital infrastructure and releasing private information. Additionally, terrorists have attempted to provoke war, falsifying NATO ship tracking data to appear to threaten a Russian naval base. Terrorists may also threaten public safety infrastructure to decrease public trust in institutions, such as attempts to poison water treatment plants in California and Florida.
The absence of comprehensive international legislation and judicial mechanisms to address transnational human rights violations in cyberspace allows many perpetrators to evade accountability. While national jurisdictions may regulate specific crimes and prosecute non-state actors domestically, asserting jurisdiction becomes challenging when offenses occur in foreign territories or are sanctioned by hostile states. In these cases, international law provides limited recourse.
There is an underlying tension between promoting human rights and state cybersecurity measures, as restrictions on certain content, enhanced electronic surveillance, data retention, and information sharing that purport to mitigate cybercrimes, may infringe on citizens' right to privacy. A report by the UN Special Rapporteur on Freedom of Opinion and Expression proposed a framework for stricter regulation on surveillance exports in response to unlawful targeted surveillance of individuals that are frequently justified under the guise of national security but infringe on privacy and freedom of expression rights.
Fostering Security Through International Cyberspace Regulation
To mitigate these risks, the global community must swiftly establish rules for responsible state conduct in cyberspace. Clear and enforceable regulations will reduce the risk of conflict and human rights violations by providing a structured framework that ensures state actions in cyberspace align with international law.
Existing agreements on cyber norms, such as the OEWG framework, are the most obvious pathway to codifying a global standard of cyber behavior into international law. Accountability must be central to these efforts, enforced through tangible consequences for violators. It is already common for states to draw attention to other states’ malicious cyber activity through “naming and shaming”, an effort to encourage them to cease their behavior and deter similar acts. This can construct new norms and lead to the formation of customary international law. In a domain of international diplomacy where competing state interests may overshadow collective goals, cyber norms are most likely to crystallize initially around the most severe violations that elicit a strong, unified international response.
Strengthening conviction to established cyberspace norms is crucial both to the process of their codification into international law and for fostering international cooperation. International laws can be created in a lengthy process of treaty negotiation, adoption, ratification, and eventual entry into force, or exist as unwritten customary laws which are developed through consistent and general practice. Customary law presents a viable route to the codification of cyber norms into international law, requiring state practice and opinio juris sive necessitatis (a state’s belief that it has a legal obligation to engage in a practice). This could be achieved if a coalition of like-minded states treats cyber norms as binding, necessitating a strong public commitment from national leaders and ongoing diplomatic efforts to emphasize adherence. Such an approach would facilitate direct engagement between state leaders on violations and potential sanctions, while also providing initial evidence of customary international law.
Aside from regulatory measures, cyberspace’s security risks can be mitigated by solving anonymity and attribution issues through state collaboration. Information sharing and technical exchanges enable states to better identify and respond to emerging threats. It is crucial to convince nations that their national security is reliant upon the global environment of cyberspace, as other states’ digital vulnerabilities may threaten their data and systems. Concurrently, enhancing domestic cybercrime legislation and facilitating cooperation in prosecuting cross-boundary cybercrimes is essential. Aligning national legislation with international standards will improve states' capacity to address cyber threats and ensure accountability, thereby bolstering global security.
Promoting Humanitarian Norms Through Cyberspace
Cyberspace offers immense potential to advance humanitarian norms, particularly in the areas of freedom of information and expression. Cyberspace technologies host surface web platforms that both expose violations and amplify voices against them, while also providing crucial safe spaces for victims of humanitarian crimes to seek support, heal, and raise awareness. As social media sites increasingly serve as primary news sources, they have emerged as potent instruments for users to inform themselves about human rights and serve as a deterrent by publicizing sanctions against perpetrators. However, a critical challenge to promoting human rights in cyberspace is ensuring individuals can use digital spaces without fear that the sensitive information they share will be exposed to the public. Thus, international regulation is essential to safeguarding digital rights in cyberspace.
While the OEWG’s framework is a valuable initial, non-binding agreement on cyber norms, accountability for violations of humanitarian rights through cyberspace requires further development. There must be consensus on the consequences of digital humanitarian violations, and a concerted effort to codify them into international law. This includes establishing clear standards for attribution and ensuring that responses are both proportional and effective. Nevertheless, a normative consensus into law won't solve all problems, and there are many instances of states formally agreeing to a range of international human rights obligations but refusing to implement them, or strategically employing reservations to limit their accountability.
Attributing violations of cyber norms is essential for leveraging them to advance humanitarian principles. Enhancing the capacity and willingness to identify perpetrators of cyberattacks is vital to increase the likelihood that states will hold one another accountable for breaches, whether through sanctions or other measures. Given the unlikelihood of states accepting third-party authority for neutral attribution, an alternative approach to consider is establishing an international organization responsible for investigating cyber norm violations, based on multilateral treaty commitments to responsible cyber conduct.
Absent international cyberspace treaty law, attribution is still possible, albeit in a more informal political context. This requires strengthening ‘cyber diplomacy’, where nations engage in bilateral and multilateral dialogues to address cybersecurity threats, share best practices, and collaborate on investigations to mitigate anonymity issues and diminish the incentives for cyber-aggression against each other. Likewise, e-governance initiatives grounded in universal human rights norms and customary international law can bolster engagement and participation on a global scale and address challenges of anonymity by promoting transparency and accountability.
Conclusion
The absence of robust international regulations in cyberspace poses an urgent threat to human rights and global security, requiring immediate and comprehensive action. As cyber warfare, espionage, and cybercrime proliferate unchecked, they intensify existing geopolitical tensions and jeopardize global stability and individual safety. Without clear international standards, violations of fundamental human rights—ranging from privacy infringements to the suppression of free expression—are allowed to persist unchecked.
New advances in technology must be followed by advancements in law. The international community must prioritize the creation and enforcement of regulations rooted in a shared commitment to human rights and security. This effort requires defining responsible state behavior in cyberspace, enhancing international collaboration on cybersecurity, and strengthening domestic laws against cybercrime. While cyberspace presents unique challenges, the difficulties of achieving international consensus on harmful activities are not unprecedented. The path to regulating cyberspace is undoubtedly challenging, but protecting human dignity and ensuring international security necessitates resolute and unified action.
Glossary
Accountability: The concept of holding states responsible for their actions. In cyberspace, this applies particularly to violations of cyber norms.
Appropriation: In law, refers to the act of designating something for its application to a particular usage, to the exclusion of all other uses.
Attribution: The process of attaching an action or omission to a state under international law, particularly when finding an internationally wrongful act.
Bilateral: Agreements, treaties, actions, involving only two countries or parties.
Budapest Convention on Cybercrime: A framework that entered into force in 2004 that seeks to facilitate cooperation between states to address internet and computer crime with 76 Parties, predominantly from Europe.
Codification: The process of formally writing down and establishing rules of international laws, often when there has been extensive state practice
Customary International Law: A body of law that develops from the consistent and general practice of states (diuturnitas), coupled with the belief that such practices are legally required (opinio iuris sive necessitatis), creating rights and obligations for subjects of international law.
Cyber norms: Collective expectations for proper state behaviour in cyberspace based on shared beliefs and understanding of their existence, which guide actions but do not impose legal obligations.
Cybercrimes: Illegal activities conducted through digital means, including hacking, data and identity theft, fraud, and trafficking, that can cross national borders and pose significant legal challenges.
Cyberspace: The complex web of interactions between vast digital networks, comprising both infrastructure (i.e., servers, computers, internet) and the information it holds.
Cyberwarfare: The use of digital attacks by states or other actors to disrupt, damage, or manipulate another state’s information systems or infrastructure, often as part of broader military or intelligence operations.
E-governance: The use of digital information and communication technologies by governments to enhance the delivery of its services to citizens, businesses and other governments while increasing transparency, and engaging citizens.
Espionage: In international law, it refers to the practice of accessing, on behalf of a state, confidential or strategic information held by another state. Espionage can occur in both the physical domain as well as in cyberspace.
Existential disagreements: Fundamental or deeply rooted differences in beliefs or opinions, especially regarding the interpretation or application of international law.
Gender-based violence: Harmful acts directed at an individual based on their gender or violence that disproportionately affects persons of a particular gender, constituting a violation of human rights
Geopolitical: The intersection of international political activity and physical, geographical features of a country or particular area.
Hacktivism: The use of hacking techniques to promote particular political or social agendas, often targeting governmental and private organizations’ digital infrastructure to release private information.
Human rights: Fundamental rights and freedoms that are inherent to all persons, including in the digital realm, such as the rights to privacy, freedom of expression, and protection from harm.
Humanitarian Law: A set of rules designed to limit the suffering and destruction of armed conflict on people and property, traditionally focusing on the protection of civilians and combatants' conduct during war.
International Covenant on Civil and Political Rights (1966): ICCPR. An international treaty that commits its parties to respect and promote the civil and political rights of individuals, including the right to freedom of expression, which extends to cyberspace.
International Human Rights Law: Obligations of States to act in certain ways, or, in some instances, refrain from action, to promote and protect human rights and fundamental freedoms.
International Law: A set of rules and principles governing the relationships between sovereign states and other international actors, which also apply to activities in cyberspace.
Jurisdiction: The lawful authority of a state to govern or legislate within a certain area, including the ability to make, apply, and enforce laws. In international law, it reflects both states’ sovereign independence and sovereign equality among each other.
Malabo Convention on Cyber Security and Personal Data Protection: An agreement by the African Union adopted in 2014 that seeks to harmonize data protection policies across member states.
Multilateral: Agreements, treaties, actions, involving multiple countries or parties.
Naming and shaming: A tactic used by states to publicly call out other states for malicious activities, to deter such behaviour and encourage adherence to certain norms or rules.
Non-State Actors: All actors in international law, including individuals or groups, that are not States are not formally associated with any government.
Opinio Juris Sive Necessitatis: The belief that a state is legally obligated to act in a certain way, distinguishing it from mere usage, a key element contributing to the formation of customary international law.
Public privacy: The dilemma of maintaining privacy while engaging in public digital spaces, where actions may leave a digital trail that can be exposed if not properly protected.
Sanctions: Deliberate penalties or restrictive measures, often consisting of the withdrawal or threat of withdrawal of customary trade or financial relations, targeted against particular countries, entities, or individuals to demonstrate disapproval of particular actions and discourage their continuation.
State practice: The consistent actions of states, which contribute to the formation of customary international law.
State Responsibility: The legal principle that a state is accountable for its actions and may be held liable for breaches of obligations under international law.
State Sovereignty: The principle that each state has authority and independence to govern itself within a territory without interference from other states.
Transnational entities: Organisations, corporations, and other groups that operate across national borders and wield influence over cross-border political interactions.
Treaties: Written agreements between states governed by international law, which can establish binding obligations for states and is a major mechanism for the development of legally binding norms among nations.
United Nations (UN): An international organization founded in 1945, aimed at promoting peace, security, and cooperation among states based on shared respect for the principles of equal rights and self-determination of peoples. It plays a key role in addressing global challenges, including cybersecurity.
Use of Force: Actions by a state that involve military power, which under international law are generally restricted.
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