Sovereignty, Belligerency and the New Normal in Cyberspace

This essay will discuss how intrusive (hacking) cyber espionage in peacetime is legally justified, in particular by some US defence sources. In their reading, “cyberspace” has become a virtual “space” of exception from the usual peacetime rules of respect for sovereignty. Given the ubiquitous and interlinked nature of “cyberspace”, exceptions previously applicable only in war or in other hostile relations have now de facto become the rule, and states have sought ways to rationalise and justify that, without openly flouting the established categories of war, peace and sovereignty. In the United States, this has occurred through a very limited conception of sovereignty (sovereignty-as-a-non-binding principle). This leaves much of “cyberspace” in a legal no-mans-land, or more adequately, a free-for-all-land, in which states can search and manipulate data on computers in foreign states without much legal consequence. This very limited conception of territorial sovereignty is related to the metaphorical spatialisation of the Internet as a new “domain”, a “cyberspace”, rather than as a network of hardware located in interlinked but still separate national jurisdictions.