Charter limits its definition of uses of force to a specific territory. A breach of territorial integrity then signifies some threat to an unimpaired or unmarred condition, original perfect state, entireness, completeness, undivided or unbroken.80 Cyberspace does not easily fit in with this classical interpretation. Use of a nation’s communications networks as a conduit for an electronic attack is not as obvious a violation of its sovereignty in the same way that would be a flight through its airspace.”81 In other words, cyberspace has eroded the connection between territory and sovereignty, in a networked world “no island is an island” – threats to social order are no longer easily identifiable as being either internal (crime/terrorism) or external (war).82 It is also unclear whether reparations are also due the victim of cyber attacks.83 To answer these issues of attribution, it is necessary to institute a standard of state responsibility that recognizes the difficulties inherent in cyber law to definitively track down those responsible for cyber attacks. This will be addressed in Part V.
Consequently, sovereignty should not act as a bar on regulating the information commons.84 Nations have every right to protect their sovereign interests through the effects principle. But given that cyberspace is interpreted by many as a commons territory, it would be prudent to setup an international organization tasked with regulating
80 UN Charter, Art. 2(4).
81 Nor are cyber attacks analogous to a classic situation such as the ICJ faced in the Corfu Channel case in which British warships intruded on Albanian territorial waters. Corfu Channel (UK v. Alb.) ICJ Reports 1947-48, p.15, p.5.
82 Brenner, supra note 40.
83 Depending on the context, reparations are often due a nation whose rights under international law were violated by another nation. Case Concerning the Factory at Chorzow (Claim for Indemnity), PCIJ Series C, No. 13-1, July 26, 1927.
84 Instead of calling for its decline and death in legal or political terms, it seems more useful to discuss the transformation of sovereignty into what John Jackson termed “sovereignty-modern.” Jackson, supra note 73 at 790. This re-invention posits that as the world trends towards interdependence, substitutes for portions of nation-state sovereignty will fall to international institutions that embrace a series of legitimizing good governance characteristics.