– By Hardik Bansal
– Intern IPPCS’21
INTRODUCTION
When we talk about cyberspace of any country it highlights one particular grey area in the field of law wherein the legal issues as well as various aspects are still something that have not been developed to a great extent. However, at a very basic fundamental understanding we can be certain of one thing; that regardless of whatever we argue a sovereign country exercises full control over its territory, as held in the Case of SS Lotus by the International Court of Justice and in extension the principle of territorial sovereignty applies to cyberspace as well and it protects the cyber infrastructure located within a state’s territory. Despite clarity on this aspect cyber crimes are on a rise and there are not many legal instruments especially when we talk about the international law that talk about or govern this particular aspect. Technology is one thing that has rapidly developed over the years however it has failed to acknowledge the threat of cyber espionage which in very simple terms would mean cyber spying. This would include spying by one state over the sensitive information of another for any number of reasons. However, apart from a state’s intervention regarding the cyber espionage, there can also be many non-state actors that can be either used by states as a means to an end for their own good or these non-state actors can also act on their own accord to steal sensitive information from various powerful nation states for their own good.
CYBER ESPIONAGE AND INTERNATIONAL LAW
Many states including superpowers such as USA, Russia and China have agreed that cyberspace is inclusive of a state’s territory and thus international law would apply therein to impose responsibilities on nation states in this regard. However, the issue then arises with regards to the classification of cyber espionage and other cyber-crimes, considering the difference that they have when we compare them to traditional means of warfare in which most of the treaties, conventions or other legal instruments will apply. In this regard there are two very diverse ideas; one wherein independence of cyberspace is propagated and another wherein it is argued that no matter how large a cyberspace is, it will be located somewhere in the form or servers or even when we talk about cyber-crimes, they use some machinery, computer or any other technology which has physical components attached to it and thus it should come under the ambit of the nation states jurisdiction only and not be an independent system.
In this regard a further point of contention is the difference between cyber espionage and the traditional means of spying. Traditional means of spying naturally involved infringing a sovereign’s territory and then extracting relevant information from the sources available at hand. Therefore, as it is a direct violation of a state’s territory the same is a crime and covered under the international law. However, considering that cyber espionage does not directly result in any interference in a nation’s territory the same should not be regarded as a crime or even be compared to the traditional espionage methods. This would be a faulty assumption because as established previously cyberspace falls within the boundaries of a nation state itself and thus even if by extension it forms a part of its independent dominion where it can exercise a certain degree of control without any fear of outside interference or intrusion. Herein, the territorial integrity as well as the territorial sovereignty both of which are enshrined in the UN Charter would come into play, thus ensuring that any intervention or any intrusion in the cyberspace would also be an altercation with the internal affairs of the states and in very simple terms violation of its territorial integrity, thus in essence making it an offence and against the international law.
CONCLUSION AND THE WAY FORWARD
It is imperative to note that cyber espionage also often infringes upon the right to privacy of individuals in question and the same is also protected under various international instruments the most prominent being the Universal Declaration of Human Rights in this regard as well as national legislations. Considering that it has been established with the nation states themselves agreeing time and time again that cyber infrastructure is included in their territory and that cyber crimes are on a rise, it is the need of the hour that proper legal instruments are made to protect the sovereignty of the nation states when it comes to their cyber infrastructure. Herein, a proper balance has to be maintained between focusing on the damage that such cyber espionage can cause and how it is very different from physical espionage. Another aspect that has to be carefully looked into is whether this espionage is being done by another nation state or a non-state actor. In this regard extradition treaties especially including cyber-crimes in their domain would be of great help so that people who commit crimes from one country and infringe on the territorial sovereignty of another are not able to get away with the same.
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