Sovereignty in Cyberspace: Theory and Practice

China Institute of Contemporary International Relations

Shanghai Academy of Social Sciences

Wuhan University

Throughout the history of world civilization, the meaning of national sovereignty has changed and been enriched over time. Humanity has successively undergone agricultural, industrial, and information revolutions, which have had an enormous and profound impact on the meaning and implications of national sovereignty. In the agricultural age, human activity was mainly confined to land, so the focus of national sovereignty was on protecting territorial integrity. In the industrial age, human activity extended from land to the sea, sky, and outer space and the scope of national sovereignty expanded accordingly. In the information age, cyberspace is becoming highly integrated with the physical space of human activity to form a new territory of the modern state and a new realm of global governance. It is from this that sovereignty in cyberspace has emerged.

Sovereign states are key actors in carrying out activities and maintaining order in cyberspace. The principle of sovereign equality enshrined in the Charter of the United Nations is a basic norm of contemporary international relations. Covering all aspects of state-to-state relations, its principle and spirit also apply to cyberspace. In practice, all countries have extended national sovereignty to cyberspace, but different understandings exist around the ideas and practices for exercising it. To facilitate more just and equitable global Internet governance and build a community with a shared future in cyberspace, the international community should, with the common well-being of humanity in mind, uphold the international system with the UN as its core, follow and practice the notion of sovereignty in cyberspace in line with the principles of equal consultation and seeking common ground while setting aside differences. 

The Concept of Sovereignty in Cyberspace

Sovereignty in cyberspace is the extension of national sovereignty to cyberspace. It is the supremacy and independence that a state enjoys, on the basis of its national sovereignty, regarding cyber entities, behavior, infrastructure, information, and governance in its territory. Specifically speaking, it primarily includes the following rights.

Independence. A sovereign state has the right to independently choose its own path of cyber development, model of cyber regulation, and formulate Internet public policies, free from any external interference.

Equality. In line with the principle of sovereign equality enshrined in the UN Charter, a sovereign state has the right to participate in global governance in cyberspace on an equal footing and jointly formulate international rules.

Jurisdiction

Legislation. A sovereign state has the right to enact legislation to regulate its Internet infrastructure, entities, behavior, and information in its territory, in order to protect its national security, public interests, and the legal rights and interests of its citizens, legal persons, and other organizations.

Administration.A sovereign state has the right to administer Internet infrastructure, entities, behavior, and information in its territory according to law, so as to maintain good order in cyberspace.

Judicial jurisdiction. A sovereign state has the right to exercise judicial jurisdiction over Internet infrastructure, entities, behavior, and information in its territory according to law.

When necessary, a sovereign state may seek judicial assistance from the countries or regions concerned to deal with cyber activities that occur within said countries or regions and seriously harm or threaten its legal rights and interests.

Self-defense. A sovereign state has the right to take legal and proper measures under the framework of the UN Charter to protect its legitimate rights and interests in cyberspace from external infringement. 

Fundamental Principles of Sovereignty in Cyberspace

Equality. The principle of sovereign equality set forth in the UN Charter is the primary principle states should follow in the exercise of sovereignty in cyberspace. All sovereign states, regardless of size, wealth, or strength, are equal before the law and have the right to participate on an equal footing in international cyberspace affairs. Each state should be treated equally, and each state is also obligated to treat others as equals.

Fairness. All states should uphold fairness and justice in cyberspace and facilitate a more just and equitable global Internet governance system that reflects the wishes and interests of the majority of countries, protects the legitimate rights and interests of developing countries, and ensures the people of all countries get to decide on the development of cyberspace.

Cooperation. Cyberspace is global in nature. It is difficult for any nation to achieve effective governance in cyberspace solely through its own efforts. In line with the principle of cooperation in good faith advocated in the UN Charter, one state should respect the other as an actor of international law, follow the principle of extensive consultation, joint contribution and shared benefits, support multilateral and multi-party participation, and build a holistic governance system across multiple fields and levels to ensure the security and development of cyberspace.

Peace. In interconnected cyberspace, the interests of all countries are deeply intertwined. All countries should act in conformity with the purposes and principles enshrined in the UN Charter, use the Internet for peaceful purposes, and settle cyber disputes by peaceful means. We should take effective measures to guard against the use of information and communications technology (ICT) to engage in activities that undermine peace, prevent an arms race in cyberspace, and prevent and fight cyberterrorism to maintain peace and security in cyberspace.

Rule of law. All states should make steady progress in domestic legislation and advance the rule of law in global governance in cyberspace, uphold the authority of international law, and oppose double standards. In the exercise of sovereignty in cyberspace domestically, states should protect the legal rights of their citizens, legal persons, and other organizations in cyberspace, and internationally, states should respect the sovereignty of others in cyberspace, and observe the international law; states shall not use the Internet to interfere in the internal affairs of other countries or engage in, encourage, or support cyber activities that endanger the national security of other countries.

Sovereignty in Cyberspace in Practice

At present, the development of cyberspace is posing serious challenges to traditional political, economic, and social governance structures. Cyberspace-related international laws and national laws and regulations are still inadequate. The principle of sovereignty in cyberspace further clarifies the rights and interests of various entities and is conductive to regulating the conduct of governments, international organizations, the private sector, research institutes, social organizations, and individual citizens in cyberspace. This principle enables countries to carry out effective cooperation on the basis of sovereign equality and mutual non-aggression. It plays a crucial role in effectively responding to cybersecurity challenges and establishing and maintaining a sound order in cyberspace.

In recent years, many important international documents have confirmed that the principle of national sovereignty applies to cyberspace. For example, it is stated in the Geneva Declaration of Principles of the UN World Summit on the Information Society (WSIS) that “Policy authority for Internet-related public policy issues is the sovereign right of States.” The United Nations Governmental Groups of Experts (UNGGE) concluded in its 2013 report (A/68/98) that “State sovereignty and international norms and principles that flow from sovereignty apply to State conduct of ICT-related activities.” UNGGE also emphasized in its 2015 report (A/70/174) the importance of “the principle of sovereignty as the basis for increased security in the use of ICTs by States.”

States around the world are using legislative, administrative, and judicial means to exercise sovereignty in cyberspace, and are exploring path of Internet development and model of cyber regulation, to protect their networks against threat, interruption, attack, and disruption and to safeguard the legal rights and interests of their citizens in cyberspace. At the same time, the interconnected nature of cyberspace and differences between states in terms of Internet development level, legal system and cultural background are posing many practical challenges for states in exercising sovereignty in cyberspace. How to clearly define, effectively safeguard, and properly exercise sovereignty in cyberspace, are new issues that need to be addressed through continuous explorations and relentless efforts.

China is a staunch advocator and an active practitioner of the principle of upholding sovereignty in cyberspace. At the second World Internet Conference in 2015, Chinese President Xi Jinping stated that respecting sovereignty in cyberspace is an important principle in the reform of the global Internet governance system. The principle constitutes the precondition and basis of building a community with a shared future in cyberspace. It fully reflects China’s consistent position and proposition: to build a community with a shared future for mankind for the purpose of safeguarding world peace and promoting common development, to safeguard national sovereignty, security, and development interests with protecting core national interests as the bottom line, and to lead the reform of the global governance system in the principle of justice and fairness.

Advocating and practicing sovereignty in cyberspace does not mean isolation or breaking cyberspace into segments, but means facilitating a just and equitable international cyberspace order on the basis of national sovereignty and building a community with a shared future in cyberspace. States should work within the UN framework and uphold the principles of engaging in discussions as equals, seeking common ground while shelving differences, and pursuing mutual benefits. States should strengthen communication, harmonize positions, and on the basis of upholding sovereignty in cyberspace, formulate universally acceptable international rules and codes of conduct for cyberspace. States should join efforts in consolidating broad consensus and contributing wisdom and strength, so as to build a peaceful, secure, open, cooperative, and orderly cyberspace.