Authoritarian regimes increasingly resort to surveillance and malware attacks to extend their coercive reach into the territory of other states and silence dissidents abroad. Recent scholarship has examined the methods of digital transnational repression and their detrimental effects on the fundamental rights and security of targeted individuals. However, the broader normative and security dimensions of these practices remain underexplored, especially with regard to the states hosting the affected exiles. Addressing this gap, our article investigates digital transnational repression as a potential violation of host state sovereignty. Mobilising emerging research on digital sovereignty and cybersecurity, we argue that digital repression can violate host state sovereignty in that it constitutes extraterritorial enforcement jurisdiction; interferes with open debate and national self-determination; impedes the host state's adherence to fundamental norms of international humanitarian law; and undermines host state authority, domestic sovereignty, and integrative capacities. We outline possible pathways to counter digital transnational repression, focusing notably on distributed cyber deterrence, punitive measures like sanctions, and norms and regulations restricting the global proliferation of offensive cyber capabilities. Building on a post-territorial notion of sovereignty that centres on the effects of state actions in and beyond cyberspace, our article contributes to reflections on a human-centric approach to cybersecurity.
This contribution reflects on recent cases involving cross-border data production orders such as Yahoo Belgium, Skype Belgium and Microsoft Ireland. Cross-border data production orders are found to generally involve conflicts regarding sovereignty and enforcement jurisdiction and to frequently include voluntary cooperation of companies for which the legal framework is lacking (Introduction). The Lotus principle, which recognizes a broad extraterritorial jurisdiction to prescribe and limits extraterritorial enforcement jurisdiction, is reconsidered concerning those issues (see the ‘International law pragmatism for jurisdiction to prescribe, but not for jurisdiction to enforce’ section) and the use of mutual legal assistances, which should be the rule, is discussed with four caveats (see the ‘Four caveats to territorial sovereignty and the need for MLAs: Unclarities and politics’ section). Twelve typical arguments are identified, which are employed in courtrooms when cross-border data production orders are discussed, for example, arguments regarding territorial sovereignty, the location of servers, the virtual presence of businesses via the Internet or the nationality of the data subject (see the ‘Arguments in courtrooms in favour or against informal-based cross-border investigations’ section). Subsequently, from fourth to seventh sections, those arguments are investigated regarding their context in the cases Yahoo! Belgium (2007–2015), Skype Belgium (2012–2017), Microsoft Ireland (2013–2018) and Google in re Search Warrant (2017). Finally, a first step to evaluate and test the strength of those arguments is undertaken (see the ‘Assessing the arguments: From logically weak, to unpractical to law enforcement utilitarianism (give us everything)’ section).
This contribution discusses the growing importance of cyber attacks directed at the public sphere and the crucial role of non-state actors in cyber attacks from a perspective of just war theory. Going back to Grotius' and Vitoria's seminal teachings on international law, the article makes the case for distributed cyber deterrence involving private and public actors.Further, it justifies sanctions for cyber attacks that do not cause physical violence, for example the interference with elections or the hacking of companies. It considers the post-physicality of cyberspace, the attribution problem, private just war theory and national self-determination through deliberation.
The idea of free trade in Grotius's Mare liberum and his legal opinion De iure praedae has a strong theological basis. Grotius called the right to travel and trade freely a ius sanctissimum, a 'sacrosanct law'. He also perceived the Freedom of the Seas as being a direct result of the will of God. This theological background was strategically necessary because Grotius developed the Mare liberum and the De iure praedae to argue against Spanish-Portuguese claims to a trade monopoly that also had theological underpinnings. But the theological aspect of Grotius's theory was also emphasized by the references he made to the Dominican friar Francisco de Vitoria's ius communicationis. This precursor to Grotius's Freedom of the Seas, which Vitoria had developed in his De indis, is connected to the legal justification of Christian mission and so has a clear theological connotation. In Grotius's work, Vitoria's concept of a universal right to Christian mission supervised by the pope was transformed into a theologically supported right to free trade. With this transformation of the ius communicationis into the principle of the Mare liberum, Grotius develops a theological basis not for politics but for economics. One can speak therefore, following Giorgio Agamben, of an 'economic theology' in regard to Grotius, a term that is, in turn, derived from Carl Schmitt's notion of 'political theology'.
T he Microsoft Ireland case brought before the Supreme Court in 2018 and dropped the very same year has attracted attention world-wide from policymakers and scholars. This contribution focusses on two important features of the case: the conflicting and often chaotic approaches to the notion of sovereignty of many of the players and the remarkable move of a private company to trigger regulation in a world where companies, technologies, data flows and governments transgress borders with growing acceptance of the inadequacy of older territorial comprehensions of the world order.
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