Cyberstrategia Interview 2 (18 septembre 2013)

La problmatique du Droit international dans le cyberespace

Maxime Pinard Directeur de Cyberstrategia

www.cyberstrategie.fr

cyberstrategia@gmail.com - Tous Droits Rservs

Page 1

Cyberstrategia Interview 2 (18 septembre 2013)

Interview en anglais dAnnachiara Rotondo

(annachiararotondo@hotmail.com),

1.

It

is

often

said

that

cyberspace is a bit like the Wild West , where it is the strongest imposing its power and where the legal power is relegated to the background. What do you think of this feeling? Yes, its true, people frequently speak of cyber space as something of an intangible, uid, a-territorial nature: to all effects, a new wild west, an anarchistic place where the power of the State seems to give way to a set of non-written rules created by the network users and service providers. This perception of the cyber dimension derives from the fact that, through the coordinates of Euclidean space, we nd ourselves facing a non-measurable dimension located beyond the

titulaire dun Master en sciences politiques et coopration internationale, actuellement en dernire anne de thse en Comparative Law and Integration Processes (Universit de Naples II) et doctorante en gopolitique lInstitut franais de gopolitique (Universit Paris 8). Domaine dintrt et de spcialit : State Control of Cyber dimension
Interview ralise le 18 septembre 2013

boundaries of physical space where only the quantity and speed of the information exchanged can be

estimated. This makes it difcult to imagine any form of control based upon classical spatial criteria that indenties the limits within which the State may or may not exercise its
cyberstrategia@gmail.com - Tous Droits Rservs Page 2

Cyberstrategia Interview 2 (18 septembre 2013)

sovereignty in conventionally dened territorial boundaries. However, in reality, it isnt what it seems as the State actually does govern this

international cyberspace?

jurisdiction Does it mean

in that

national laws are sufcient? With the exception of the 2001 Budapest Convention on Cybercrime and other regulations developed by the leading International organizations

dimension through control of cyber infrastructure (providers, browsers,

network connections etc.) physically located on its territory without which the Internet could not exist. Moreover, the application of existing norms governing cyber activities (trading, nancial dissemination transactions, of the

such as the U.N., NATO and the E.U., currently, cyber-related phenomena and especially cyber crime are primarily regulated by national law. However, the fact that there are no international regulations created ad-hoc for the cyber dimension does not mean that we nd ourselves in the midst of a void in the international legal system. Although not specically dictated to the cyber dimension, existing

information,

advertising, le sharing and exchange, etc) and the activities of cyber intermediaries (such as telephone and cable companies and service providers etc) allow us to go beyond envisaging the cyber dimension as the wild West and bear witness to the fact that we are actually facing is a dominion where national and international law, albeit with some difculty, can be fully applied.

regulations appear sufcient to govern the phenomena in relation to its international implications which, in itself, resolves many problems. Owing to its enormous

international repercussions, the issue of the cyber phenomena cannot be 2. What is the state of play of law now in cyberspace? create a What real entrusted exclusively to national law: rst and foremost, because cyber violations are almost always
Page 3

problems

would

cyberstrategia@gmail.com - Tous Droits Rservs

Cyberstrategia Interview 2 (18 septembre 2013)

transnational sufce it to cite the attack on Estonia secondly, because wrongful acts may consist in a violation of obligations not provided for by national law and only sanctioned by international law and, lastly, because certain cyber violations could

the balance of power between the UN and digital superpowers like the United States, Russia and China? Rather than structure, there is a great deal of discussion regarding the possibility of adopting a supranational juridical instrument, that is a

constitute a threat to, or a violation of, international Consequently, peace and security. legal

multilateral agreement, under the aegis of the United Nations. However, owing to its very nature, an

national

frameworks alone do not appear sufcient to effectively ght the

international treaty is comprised of regulations to which States subject themselves in a completely voluntary manner and thus even a UN treaty would only be binding for those States wishing to take part. Consequently, the idea of a treaty would not be useful to achieving the objective of creating a universal regulatory frame work to be applied to the cyber dimension. The problem, if indeed there is a problem, does not regard the relationships

phenomena; furthermore, it should be added that the transnational nature of cyber crime dictates that States

establish mechanisms of co-operation between the police and the judiciary that can only be formalized through recourse to international instruments such as the 2001 Budapest Convention on Cybercrime.

3. Some politicians want the UN to take over these legal problems by creating a supranational legal

between

the

so-called within the

digital United

superpowers

Nations but rather the juridical nature of the instrument to which the regulation of the cyber dimension would be entrusted. Moreover, even though the International community

structure able of enforcing the law with all digital countries: can we consider this idea as a utopia, given to
cyberstrategia@gmail.com - Tous Droits Rservs

Page 4

Cyberstrategia Interview 2 (18 septembre 2013)

has undoubtedly recognized the strong political, geopolitical, technological and social impact of the cyber phenomena, it does not believe that time is not yet sufciently ripe for comprehensive International regulation.

which favours a decidedly spatial approach, does not take into

consideration that, unlike the sea, air space and the outer space, cyberspace is not a physical (natural) dimension, it did not exist prior to the creation of States, absolutely has not been

subtracted from the exercise of State 4. Some research fellows think about creating a legal framework of cyberspace close to international That the cyber dimension is not part of the natural world and is not a reality pre-dating States is a matter of fact. As When there are no regulations governing new phenomena such as the cyber dimension, it is only natural to refer to broad interpretations and juridical analogy in assessing whether there are points of contact between the situation at hand and other situations which have already been regulated. Much of the worlds legal doctrine is of the opinion that cyberspace falls into the category of what is known as global commons, that is to say, among those free areas such as the high seas, air space above the high seas and the outer space. This juridical analogy
cyberstrategia@gmail.com - Tous Droits Rservs Page 5

sovereignty, and, it is not a free domain.

maritime law: what do you think of this idea?

regards

the

statement

that

said

dimension has not been subtracted from state sovereignty, is belied by the copious amount of legislation enacted by States to combat cyber crimes, the control of digital information and privacy protection. Regarding the free nature of the domain, currently international law has not yet enacted regulations sanctioning the freedom of use of cyber space, nor has it attributed any particular freedom on the part of States to act as occurred in the past for the high seas sanctioning the freedom of navigation, ying over

Cyberstrategia Interview 2 (18 septembre 2013)

the high seas and laying submarine cables and pipelines etc. Others have made a parallel between the cyber dimension and the high seas in formulating an analogy between piracy and cyber crime. Here too, the juridical assumption lays in the conviction that the cyber dimension is a global common like the high seas and, as such, its free and peaceful administration represents one of the primary interests of the International Community. The main element of equivalence between piracy and cyber crime is that both crimes are

has no standing. Unlike acts of piracy which only affect the vessel under attack, cyber aggression is capable of simultaneously compromising more

than one system; while the sole objective of piracy is the private gain of those responsible for the crime, cyber crime generally can have multiple objectives: political, military or purely demonstrative; piracy always

constitutes an act of violence whereas, in most cases, cyber crime does not constitute an act of violence therefore the analogy between piracy and cyber crime does not exist.

conducted in an environment outside the realm of national jurisdiction or, at any rate, in an environment in which the exercise of State jurisdiction is not ordinary; additionally, piracy and cyber crime also share the element of dualism of the means involved in the criminal act as well as private gain as the primary objective of the crime. Notwithstanding, as I previously stated, a true analogy between the cyber dimension and global common does not exist and therefore the cyber This manual classies certain phenomena among the 5. NATO has released this year The Tallinn Manual on the

International Law Applicable to Cyber Warfare, after three years of study . Could you briey summarize? Do you think we should follow the ideas in the report?

institutions of international public law with the objective, I believe, of providing a response which can be
Page 6

fundamental juridical presupposition

cyberstrategia@gmail.com - Tous Droits Rservs

Cyberstrategia Interview 2 (18 septembre 2013)

universally agreed upon regarding possible actions to be taken by a State which has come under cyber incident, cyber attack, cyber war, etc. In particular, this manual purports to resolve the greatest dilemma the advent of the cyber dimension has created for the International

6. Some hackers speak of selfregulation to describe cyberspace: even if there are problems (eg cybercrime), cyberspace as a whole resists and still allows all users to participate in its activities. Could it mean that the implementation of legal rules goes against the sense of the nature of cyberspace? The conviction that realm of cyberspace should not be regulated was ofcially sanctioned during the 90s in John Perry Barlows Declaration of Independence of Cyberspace which, in my opinion, is a document which is evocative, literary and romantic as is the very concept of freedom of cyberspace which is not in any way juridical. We all know that the only means of ensuring freedom, be it that of cybernauts or any other community, is by providing and respecting regulatory tenets, otherwise what we have is anarchy. **********

Community which is whether or not to use military armed force in the event a State comes under cyber attack. The Manual can be considered a valid instrument for reference purposes as it is undoubtedly an expression of the highest levels of expertise,

notwithstanding, it has no legal status nor, owing to its nature, can it be used as an interpretive parameter of

international regulations as it is a scientic report which focuses on issues for which State praxis is

practically inexistent and extremely uncertain as is the ongoing debate regarding aggression-. Moreover, the Manual was drafted by the CCDCOE and therefore is a creature of the NATO an international organization of a military nature and this alone speaks volumes!
cyberstrategia@gmail.com - Tous Droits Rservs

Page 7