This report examines underlying normative issues pertaining to the status and function of sovereignty and its relation to primary rules of international law that have been brought to the forefront of discussions among states in debates concerning the application of international law to new technologies.
Influenced by arguments made in prominent academic publications seeking to identify primary rules applicable to cyberspace, a number of states have released statements on the application of international law to cyberspace that feature claims concerning the status of sovereignty and of related obligations of conduct. These positions have been influenced by arguments that sovereignty is a singular rule of customary international law which if violated is capable of establishing state responsibility. It has also been argued that international law imposes a general obligation on states to act with due diligence to prevent their territory being used for activity which harms the rights of other states, where this obligation is not restricted or confined to particular forms of activity.
Rather than convening experts focused on the application of international law to new technologies, this project instead seeks to engage general international law scholars and those with specialised expertise in the normative issues central to the research, namely, sovereignty and obligations of conduct—often referred to as "due diligence obligations". In adopting this approach, the project aims to offer a unique contribution by examining the foundations of the normative claims made in debates over how international law applies to new technologies. While the research is prompted by normative issues in debates concerning the application of international law to new technologies, its findings are relevant to international law broadly and to a range of topics therein.
The report is based on extensive engagement with experts and practitioners in public international law, including a survey, semi-structured interviews, and roundtable discussions. The report draws upon this engagement to inform its content and conclusions, with additional support provided by an examination of relevant sources of international law.
This report was undertaken as part of a BIICL project supported by the UK Foreign, Commonwealth & Development Office, Beyond theoretical differences on international law: Identifying common ground among states on unlawful behaviour in cyberspace.
