International Law in Cyberspace

Course content

At present, the application of international law in cyberspace is one of the most pressing and controversial issues in international legal scholarship as well as in practice. In the course of the past decades, cyberspace has progressively become a part of the daily life of more than half of the world’s population. In spite of the vast benefits of this technological development, cyberspace has also brought about new threats and vulnerabilities.

 

Building legal resilience so that malicious and hostile cyber conduct (below the threshold of armed conflict) may be deterred and countered without the risk of undue conflict escalation is of particular concern to small, high-income welfare states like Denmark, which have spearheaded the shift to ‘e-government’. Indeed, the increasing digitalization in such countries makes their public sectors particularly vulnerable to cyber-attacks aimed at eroding the traditionally high level of trust in state authorities. Moreover, many of their private businesses are at risk of suffering substantial financial losses in cyber-attacks.

 

The purpose of this course is to introduce students to the principal scholarly debates concerning international legal regulation in cyberspace as well as the ongoing development of state practice on this issue.

 

The overall aim of the course is to:

  • Provide students with a working knowledge of the international legal framework regulating cyberspace
  • Develop students’ understanding of the applicability of existing international legal norms in cyberspace and the development of new norms to fit new factual circumstances
  • Develop students’ awareness of the interplay between various specialized disciplines of international law, including e.g. international human rights law and diplomatic law, with regard to cyberspace.

 

To achieve this aim, the following issues will be addressed in the readings and class discussions:

  1. Sovereignty and Due Diligence
  2. The Law of International Responsibility
  3. Countermeasures and Necessity as Circumstances Precluding Wrongfulness
  4. Consequences of Wrongful Acts
  5. Cyber Espionage
  6. International Human Rights Law
  7. International Humanitarian Law
  8. Diplomatic and Consular Law
  9. Intervention and Breaches of Sovereignty
  10. The Use of Force & Self-Defence
Learning outcome

The course provides the students with knowledge of:

  • The applicability of general principles and rules of international law to cyber activities
  • The specific way in which the law of state responsibility applies in the context of cyberspace
  • The consequences of violating international law in cyberspace
  • The role of specialized disciplines of international law, including e.g. international human rights law, in cyberspace
  • International peace and security in relation to cyberspace

 

On the basis thereof, the course provides the students with the following skills:

  • The ability to interpret and apply international legal norms pertaining to cyber activities
  • The ability to solve conflicts between international legal norms applicable to cyber activities

 

Based on those skills the course provides the students with the following competences:

  • The ability to reflect upon both the benefits and the problems of regulating of cyberspace in international law
  • The ability to reflect upon the overall consequences of ongoing development of international law pertaining to cyberspace

Seminars: Seminars will include a significant amount of casework and student presentations. Students will get feedback on their work/presentations from both the teacher and each other (see further above at 6). One seminar will be devoted to a moot court exercise.

Blended learning: To ensure that the students’ learning activities do not only take place in the “classroom”, but also in between seminars, the course will involve online activities. Student wikis and blogs will be set up on Absalon to facilitate students’ reflection on and discussion of the course material online - under the teachers’ supervision.

Field trip: The teachers will organize a trip to e.g. the Centre for Cyber Security, Ministry of Defence, during the course.

Academic publications:

  • Michael Schmitt (general editor), Tallinn Manual 2.0. on the International Law Applicable to Cyber Operations (Cambridge University Press, 2017), pp. 1-7, 11-50, 79-142, 179-231, 312-356, 375-378, 414-420 (215 pages)
  • Nicholas Tsagourias, ‘The legal status of cyberspace’ in Nicholas Tsagourias and Russell Buchan (eds.), Research Handbook on International Law and Cyberspace (Edward Elgar, 2015), pp. 13-29 (16 pages)
  • Russell Buchan, ‘Cyber espionage and international law’ in Nicholas Tsagourias and Russell Buchan (eds.), Research Handbook on International Law and Cyberspace (Edward Elgar, 2015), pp. 168-189 (22 pages)
  • Michael Schmitt and Sean Watts, ‘Beyond State-Centrism: International Law and Non-state Actors in Cyberspace’, 21 Journal of conflict & security law (2016), pp. 595-611 (16 pages) 
  • Dapo Akande, Antonio Coco, Talita de Souza Dias, ‘Old Habits Die Hard: Applying Existing International Law in Cyberspace and Beyond’, Blogpost on EJILTalk!, 5 January 2021: https://www.ejiltalk.org/old-habits-die-hard-applying-existing-international-law-in-cyberspace-and-beyond/ (6 pages)
  • Tim McCormack, ‘International Humanitarian Law and the Targeting of Data’, 94 International Law Studies (2018), pp. 223-240 (17 pages)
  • Marko Milanovic, ‘Surveillance and Cyber Operations’, forthcoming, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3708440 (14 pages)

States’ perspectives on international law in cyberspace (and academic reactions thereto):

  • CyCon 2019 keynote address by H.E. Kersti Kaljulaid, President of the Republic of Estonia: https://www.president.ee/en/official-duties/speeches/15241-president-of-the-republic-at-the-opening-of-cycon-2019/index.html (4 pages)
  • Attorney General Jeremy Wright, UK, ‘Cyber and International Law in the 21st Century’, Speech delivered 23 May 2018: https://www.gov.uk/government/speeches/cyber-and-international-law-in-the-21st-century (8 pages)
  • ‘Letter of 5 July 2019 from the Minister of Foreign Affairs of the Netherlands to the President of the House of Representatives on the international legal order in cyberspace’: https://www.government.nl/documents/parliamentary-documents/2019/09/26/letter-to-the-parliament-on-the-international-legal-order-in-cyberspace (9 pages)
  • Michael Schmitt, ‘France’s Major Statement onInternational Law and Cyber: An Assessment’, Blogpost on Just Security, 16 September 2019: https://www.justsecurity.org/66194/frances-major-statement-on-international-law-and-cyber-an-assessment/ (10 pages)
  • ‘International law and cyberspace, Finland’s national positions’, 15 October 2020: https://um.fi/documents/35732/0/KyberkannatPDF_EN.pdf/12bbbbde-623b-9f86-b254-07d5af3c6d85?t=1603097522727 (8 pages)
  • Michael Schmitt, ‘Finland Sets Out Key Positions on International Cyber Law’, Blogpost on Just Security, 27 October 2020: https://www.justsecurity.org/73061/finland-sets-out-key-positions-on-international-cyber-law/ (9 pages)
  • Roy Schöndorf, ‘Israel’s perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations’, Speech delivered 8 December 2020:  https://www.ejiltalk.org/israels-perspective-on-key-legal-and-practical-issues-concerning-the-application-of-international-law-to-cyber-operations/ (8 pages)
  • Michael Schmitt, ‘Israel’s Cautious Perspective on International Law in Cyberspace: Part I (Methodology and General International Law)’, EJILTalk!, 17 December 2020: https://www.ejiltalk.org/israels-cautious-perspective-on-international-law-in-cyberspace-part-i-methodology-and-general-international-law/ (6 pages)
  • Michael Schmitt, ‘Israel’s Cautious Perspective on International Law in Cyberspace: Part II (jus ad bellum and jus in bello)’, Blogpost on EJILTalk!, 17 December 2020: https://www.ejiltalk.org/israels-cautious-perspective-on-international-law-in-cyberspace-part-ii-jus-ad-bellum-and-jus-in-bello/ (6 pages)
  • Michael Schmitt, ‘New Zealand Pushes the Dialogue on International Cyber Law Forward’, Blogpost on Just Security, 8 December 2020: https://www.justsecurity.org/73742/new-zealand-pushes-the-dialogue-on-international-cyber-law-forward/ (12 pages)
  • Nicholas Tsagourias, ‘Malicious Cyber Operations against Health Infrastructure during the COVID-19 Pandemic and the Renvoi to Sovereignty in Cyberspace’, ESIL reflection, 17 December 2020: https://esil-sedi.eu/wp-content/uploads/2020/12/ESIL-Reflection-Tsagourias.pdf (7 pages)

 

TOTAL: 393 pages

 

Optional readings and useful links:

United Nations: https://www.un.org/disarmament/ict-security/

Open-Ended Working Group (OEWG): https://www.un.org/disarmament/open-ended-working-group/

Group of Governmental Experts: https://www.un.org/disarmament/group-of-governmental-experts/

NATO: The NATO Cooperative Cyber Defence Centre of Excellence (CCDCOE): https://ccdcoe.org/about-us/

Iran:

https://www.justsecurity.org/72181/iran-joins-discussions-of-sovereignty-and-non-intervention-in-cyberspace/

Australia:

https://www.dfat.gov.au/publications/international-relations/international-cyber-engagement-strategy/aices/chapters/annexes.html

USA:

https://2009-2017.state.gov/s/l/releases/remarks/197924.htm

https://www.justsecurity.org/wp-content/uploads/2016/11/Brian-J.-Egan-International-Law-and-Stability-in-Cyberspace-Berkeley-Nov-2016.pdf

New Zealand:

https://www.mfat.govt.nz/en/media-and-resources/ministry-statements-and-speeches/cyber-il/

The course presupposes a basic knowledge of public international law, e.g. equivalent to public international law at the BA-level. Students who have not previously taken a course on public international law must be prepared to acquire such knowledge on their own prior to the first seminar (reading material will be recommended by the teacher).

Participants must have a working knowledge of English

The course is a part of the iCourts Excellence Programme.

The course is relevant to the Faculty’s strategy to create the links between law and the digital development. The objective and teaching material of the course directly concern international legal challenges arising from digitalization. Moreover, the planned blended learning activities aim to facilitate a partly digitalized learning environment throughout the course.

Written
Oral
Individual
Collective
Continuous feedback during the course of the semester
Feedback by final exam (In addition to the grade)
Peer feedback (Students give each other feedback)
ECTS
7,5 ECTS
Type of assessment
Oral examination, 20 min.
Oral exam based on a synopsis, 20 minutes
Marking scale
7-point grading scale
Censorship form
External censorship

Single subject courses (day)

  • Category
  • Hours
  • Preparation
  • 178,25
  • Seminar
  • 28
  • English
  • 206,25