principle laid out in the Nicaragua Case that “ every sovereign State [has a right] to conduct its affairs without outside interference...[this] is part and parcel of customary international law.”99
Custom according to the North Sea Continental Shelf Case requires “widespread and representative participation provided it include[s] that of [the] States whose interests were specially affected.”100 State practice in the aftermath of cyber attacks seems to suggest widespread condemnation but no consensus on how to respond, or even at what level a cyber attack becomes an armed attack. Due to this lack of custom, several treaty regimes will be examined in kind that provide bases for the regulation or outright prohibition of cyber attacks in international law. These regimes together form a useful, if imperfect, system that may be called upon until a comprehensive treaty on cyber security is implemented.
The Analogy of Space Law and the Antarctic Treaty System
Outer space is inherently similar to cyberspace; both are incredibly large and resource rich areas of the international commons.101 Neither outer space nor cyberspace
99 1968 I.C.J. 4, para. 202.
100 North Sea Continental Shelf (Fed. Rep. of Gem / Den. v. Neth.), 1969 ICJ 41 (Feb. 20). A rule of customary international law requires two elements: (1) general state practice; and (2) “state adherence to the rule based on a belief that such adherence is legally required (opinion juris).” Andrew T. Guzman, Why LDCs Sign Treaties that Hurt Them: Explaining the Popularity of Bilateral Investment Treaties, 38 Virginia Journal of International Law 639, 646 FN 20 (1996). See also Statute of the International Court of Justice, June 26, 1945, art. 38, 59 Stat. 1055, 3 Brevans 1179, reprinted in International Law: Selected Documents 27 (Barry E. Carter & Phillip R. Trimble eds., 1991 (“The Court…shall apply…international custom, as evidence of a general practice accepted as law.”; Concerning the Continental Shelf (Libya v. Malta) 1985 I.C.J. 13, 29 (June 3) (“It is of course axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinion juris of states…”).
101 In the outer space context, gold has now been discovered on asteroids, Helium-3 on the Moon, and magnesium, cobalt and uranium on Mars. The first wave of space tourists are preparing for launch in 2008 courtesy of Virgin Galactic. New industries promising unlimited energy could be developed, necessitating a well-defined legal regime. In cyberspace, internet service protocols and domain names are similarly valuable real estate in the Information Age.