Cyber Espionage and International Law

The advent of cyberspace has led to a dramatic increase in state-sponsored political and economic espionage. This monograph argues that these practices represent a threat to the maintenance of international peace and security and assesses the extent to which international law regulates this conduct. The traditional view among international legal scholars is that, in the absence of direct and specific international law on the topic of espionage, cyber espionage constitutes an extra-legal activity that is unconstrained by international law. This monograph challenges that assumption and reveals that there are general principles of international law as well as specialised international legal regimes that indirectly regulate cyber espionage. In terms of general principles of international law, this monograph explores how the rules of territorial sovereignty, non-intervention and the non-use of force apply to cyber espionage. In relation to specialised regimes, this monograph investigates the role of diplomatic and consular law, international human rights law and the law of the World Trade Organization in addressing cyber espionage. This monograph also examines whether developments in customary international law have carved out espionage exceptions to those international legal rules that otherwise prohibit cyber espionage as well as considering whether the doctrines of self-defence and necessity can be invoked to justify cyber espionage. Notwithstanding the applicability of international law, this monograph concludes that policymakers should nevertheless devise an international law of espionage which, as lex specialis, contains rules that are specifically designed to confront the growing threat posed by cyber espionage.

1. Background
2. The Argument
3. Chapter Overview

A. Defining Cyber Espionage
1. Introduction
2. The Intelligence Community
3. Cyber Espionage: Th e Copying of Confidential Data
4. Close and Remote Access Cyber Espionage
5. Secrecy and Cyber Espionage
6. Non-Consensual Information Gathering
7. Political and Economic Cyber Espionage and the Role of State and Non-State Actors
8. Cyber Espionage and International Law
9. Peacetime Cyber Espionage
10. Conclusion

B. Cyber Espionage and International Peace and Security
1. Introduction
2. Political Cyber Espionage
3. Economic Cyber Espionage
4. Conclusion

C. Cyber Espionage and the Rules of Territorial Sovereignty, Non-Intervention and the Non-Use of Force
1. Introduction
2. The Rule of Territorial Sovereignty
3. The Rule of Non-Intervention
4. The Prohibition on the Use of Force
5. Conclusion

D. Cyber Espionage and Diplomatic and Consular Law
1. Introduction
2. Cyber Espionage Against Diplomatic Missions and Consular Posts
3. The Use of Diplomatic Missions and Consular Posts for Cyber Espionage
4. Conclusion

E. Cyber Espionage and International Human Rights Law
1. Introduction
2. The Extraterritorial Application of Human Rights Treaties
3. The Right to Privacy
4. Restricting the Right to Privacy
5. Conclusion

F. Economic Cyber Espionage and the World Trade Organization
1. Introduction
2. Economic Cyber Espionage as a WTO 'Measure'
3. Nullification or Impairment of a Benefit
4. Substantive Obligations under WTO Law
5. Non-Violation Complaints
6. Conclusion

G. Cyber Espionage and the Existence of Customary International Law Exceptions
1. Introduction
2. Customary International Law
3. State Practice
4. Opinio Juris
5. Conclusion

H. Cyber Espionage and the Doctrines of Self-Defence and Necessity
1. Introduction
2. The Doctrine of Self-Defence
3. The Doctrine of Necessity
4. Conclusion