Reviving the Principle of Non-Intervention in Cyberspace: The Path Forward

Abstract

The applicability of existing rules of international law (namely sovereignty or the prohibition to use force) is currently challenged in cyberspace. In contrast, the relevance of the non-intervention principle is accepted by states and raises less questions about the ‘territoriality’ or the ‘militarization’ of cyberspace. At first sight, it thus appears as a convenient source for the regulation of cyberthreats. However, the Nicaragua case also established a stringent test for a foreign interference to qualify as an unlawful intervention. First, it must bear ‘on matters in which each State is permitted, by the principle of State sovereignty to decide freely’ (ie the ‘domaine réservé’). Then, it must involve ‘methods of coercion in regard to such choices’. I contend that both criteria are maladjusted to address cyberthreats and must be reconceptualised. In fact, the domaine réservé describes domains where states are free from international rules. However, few domains, including electoral processes or main economic orientations, are totally isolated from international law. I thus argue that it must be reconceptualised into the so-called ‘domaine privilégié’. It consists of a domain with clear-cut contours, unaffected by the developments of international law, which encompasses the fundamental interests of a state and its population. Then, coercion describes situations where a state is compelled to act, or to refrain from acting, in a certain fashion. This traditional approach is also problematic, and I argue that coercion must be understood in terms of deprivation of control.