Post on 31-Jan-2023
State Sovereignty in the Information Sphere: Conceptual Framework
Andrii Paziuk
Current international law documents as well as
Ukrainian domestic legal regulations provide any
definition of the term ‘information sphere’. However,
this concept is defined in the Information Security
Doctrine of the Russian Federation as a ‘totality of
information, information infrastructure and entities
which collect, generate, disseminate and use information,
including the system for regulation of relevant social
relations’1.
The information sphere per se was analysed in the works
of Russian2 and Ukrainian3 legal researchers. However the1 Doctrine of Information Security of Russian Federation, approved by Decree of President of 09.09.2000.2 Бачило И. Л. Информационное право: Учебник / Бачило И. Л., Лопатин В. Н., Федотов М. А.. – СПб. : Юридический центр Пресс, 2001; Городов О. А. Основы информационного права России / О. А. Городов. – СПб. : Юридический центр Пресс, 2003; Рассолов М. М. Информационное право: анализ и решение практических задач / М. М. Рассолов. – М. , 1998; Информационное право : Учебное пособие. – М., – 19993 Арістова І. В. Дердавна інформаційна політика : організаційно-праові аспекти : Монографія / І. В. Арістова. – Х. : Вид-во ун-ту внутр. справ, 2000. – 368 с.; Власенко Н. А. Україна на шляху до інформаційного суспільства : проблеми та здобутки : Інформаційно-аналітичний огляд / Н. А. Власенко, С. В. Зорько, М. Р. Сиротич. –К. : НІСД, 1995. – Вип. 5. – 43 с.; Україна 2000 і далі: геополітичні інтереси та сценаріх розвитку: Монографія / Автор. колектив: О. М. Гончаренко, Б. О. Парахонский, Р. Н. Жангожа та ін. – К. : НІСД, 1999. – 384 с.; Данільян О. Г. Національна безпека України: сутність, структура та напрями реалізації / О. Г.Данільян, О. П. Дзьобань, М. І. Панов. – Х. : Фоліо, 2002. – 296
abovementioned books focus on definition of information
security based on the concepts of ‘national information
space’ and the so called ‘information sovereignty’. In
the works by the aforementioned authors on the issues of
information law as a branch of domestic law, the
information sphere is seen as something bound by the
limits of ‘information sovereignty’, overlooking the
extraterritorial nature of the information sphere and the
transfrontier flows of infocommunications.
Among the works of Ukrainian scientists it is important
to mention scientific studies by О. А. Baranov4,
B. А. Kormych5 and О. V. Oliynyk6. These authors emphasize
the integrity of the notion of ‘State’s sovereignty’ and
с.; Марущак А. І. Інформаційне право: доступ до інформації: Навчальний посібник / А. І. Марущак. – К. : КНТ, 2007; Мастяниця Й. У. Охорона державних секретів незалежної України : історично-правові нариси / Й. У. Мастяниця, Л. Є. Шиманський, О. В. Олійник,В. П. Ворожко; за заг. ред. П. О. Мисника, О. В. Зайчука. – К. : Інститут законодавства Верховної Ради Ураїни, 2010.– 128 с.; Ніжник Р. Н. Національна безпека: методологічні аспекти, стан і тенденції розвитку : навч. посібник / Н. Р. Нижник, Г. П. Ситник, В. Т. Білоус. – К. : Преса України, 2000. – 304 с.; Харченко Л. C.Інформаційна безпека України: Глосарій / Харченко Л. C., Ліпкан В.А., Логінов О. В.; за заг. ред. Р. А. Калюжного. – К. : Текст, 2004. – 136 с.; Цимбалюк В. С. Інформаційне право (основи теорії іпрактики): Монографія / В. С. Цимбалюк. – К. : Освіта України, 2010. – 388 с.4 Баранов А. Информационный суверенитет или информационная безопасность? / А. Баранов // Національна безпека і оборона. – 2001. – Вип. 1. – С. 72-73.5 Кормич Б. А. Інформаційна безпека: організаційно-правовсі основи:Навч. посібн. / Б. А. Кормич. – К. : Кондор, 2008. – 382 с.6 Олійник О. В. Теоретико-методологічні засади адміністративно-правового забезпечення інформаційної безпеки України : монограф. /О. В. Олійник. – К. : Укр. пріоритет, 2012. – 400с.
consider it impracticable to set apart a separate
category of ‘information sovereignty’.
Ukrainian lawmakers were, probably, guided by the same
opinion when, in the new 2011 version of the Act ‘On
Information’7, they removed the provisions on information
sovereignty, presented in the first version dated 19928.
However, the concept of ‘information sovereignty’ is
still used in some regulatory documents of Ukraine on
informatization which define it as ‘the ability of the
State to control and regulate information flows from abroad (italics
added — A.P.) for the purpose of respecting the laws of
Ukraine, rights and freedoms of citizens and ensuring
national security of the State’9. Up to the present time,
the protection of information sovereignty was regarded as
a main objective of the implementation of the Information
Security Doctrine of Ukraine. Among the means of ensuring
information security of the State in the sphere of
foreign policy there were mentioned ‘integration to the
international information and telecommunication systems
and organizations based on the principles of equality,
economic efficiency and preservation of information
sovereignty; ensuring timely detection and management of
7 Act ‘On Information’ of 13.01.2011 No 2938-VI, VVR, 2011, No 32.8 Act ‘On Information’ of 2.10.1992 No 2657-XII, VVR, 1992, No 48.9 Act ‘On National Program of Informatization’ of 04.02.1998 No 74/98, VVR, 1998, No 27
external threats to the national information
sovereignty’10. The aforementioned Information Security
Doctrine of Ukraine ceased to be in force11, and a new
version thereof is yet to be developed12.
The concept of ‘information sovereignty’ is limited
only to control and regulation of information flows shows the
absence of such an important function of the State as
information security management, putting in doubt the
completeness of the government’s authority. In addition,
this concept deals with information flows from abroad
while information sphere is transfrontier by nature.
Neither the contents nor the ‘spirit’ of such
definition comply with the Declaration of State
Sovereignty of Ukraine which defines the State
sovereignty of Ukraine as ‘as supremacy, independence,
integrity, and indivisibility of the Republic's authority
within the boundaries of its territory, and its
independence and equality in foreign relations’13.
10 The Doctrine of Information Security of Ukraine, approved by Enactment of President of 08.07.2009, No 514/2009, OVU, 2009, No. 5211 Enactment of President of 28.04.2014, OVU, 2014, No 4712 Decision of the Council of National Security and Defense of Ukraine of 28.04.2014, approved by Enactment of President of 1.05.2014 No 449/2014, OVU, 2014, No 1613 Declaration of State Sovereignty of Ukraine, passed by theVerkhovna Rada of the Ukrainian Soviet Socialist Republic,Kyiv, July 16, 1990, available at:http://static.rada.gov.ua/site/postanova_eng/Declaration_of_State_Sovereignty_of_Ukraine_rev1.htm
The definition above complies with the theoretical
approaches which have been popular throughout the course
of history of modern international law. In the Soviet
theory of international law, the concept of State
sovereignty comprised such components as supremacy,
independence, integrity, and indivisibility of authority
within the boundaries of the territory, and its independence and
equality in foreign relations14.
The limitation of the State power in the Information
Sphere by the territory of the State manifests itself in
the State power to independently regulate, govern and
control the activity related to the transmission of
information within the limits of its jurisdiction. This
principle has become a customary international rule due
to its recognition, long-term application and strict
compliance by all States, as well as its universal
recognition in the Constitution of the International
Telecommunication Union. This document determines the
States’ competence in this sphere, including the
recognition of the sovereign right of each State to regulate its
telecommunications15 .
14 Тункин Г. И. Вопросы теории международного прав, М., Госюриздат, 1962, с. 325.15 Constitution of the International Telecommunication Union, Collection of the basic texts of the International Telecommunication Union adopted by the Plenipotentiary Conference, Edition 2011, available at: http://www.itu.int/dms_pub/itu-s/oth/02/09/s02090000115201pdfe.pdf
In addition, Article 4 (Freedom of reception and
retransmission) of the European Convention on
Transfrontier Television of 1989, of which Ukraine is a
Member State, stipulates that the Parties shall ensure
freedom of expression and information in accordance with
Article 10 of the Convention for the Protection of Human
Rights and Fundamental Freedoms and they shall guarantee
freedom of reception and shall not restrict the re-
transmission on their territories of programme services
which comply with the terms of this Convention16.
Therefore, the traditional approach to the definition
of sovereignty, limited by the territory of the State,
involves a certain discrepancy between the obligations of
the State to ensure the freedom of transfrontier
information flows and the exercise of its powers to
regulate and control information flows.
To correspond to the current reality of the global
world and reflect national interests of Ukraine, a legal
basis for the definition of State sovereignty in the
information sphere should be establish and further
entrenched into legal framework. For this purpose, it is
important to conduct a deeper analysis of the concept of
sovereignty.
Disputes about the concept of sovereignty (within or
outside the framework of international law) and about16 European Convention on Transfrontier Television, Strasbourg, 5.5.1989, ETS No. 132
whether a sovereign State may be ‘bound’ by law have
continued for centuries since the emergence of modern
international law. Two main scientific schools regard
sovereignty as a plain fact or as a legal sophistication.
The first school is represented by J. Austin17,
C. Schmitt18 and H. Morgenthau19. Following the theory of
Th. Hobbes, the scientists of the first school believe
that States are not subject to any supreme regulatory
order, so their sovereignty is absolute and is not
restricted by international law.
The second school, represented by H. Kelsen20,
H. Lauterpacht21 and H. Hart22, regards the sovereignty
within the legal framework as determined by law.
Considering this approach, М. Koskenniemi claims that ‘a
State cannot refer to its sovereignty to justify its
actions but has to find a rule of law which has given it
the right, liberty or competence to act in a certain
way’23.
17 J. Austin, The Province of Jurisprudence Determined (1832), repr. In W. Rumble (ed.), Cambridge, CUP, 1995 18 Schmitt, Political Theology : Four Chapters on the Concept of Sovereignty (1922) trans. G. Schwab, Chicago, University of Chicago Press, 200519 H. Morgenthau Positivism, Functionalism and International Law (1940) 34 AJIL28320 H. Kelsen, Sovereignty and International Law (1960) 48 Gorgetown LJ 62721 H. Lauterpacht The Nature of International Law and General Jurisprudence (1932) 37 Economica 31622 H. L. A. Hart, The Concept of Law (1994, 2nd ed.), Oxford, Clarendon Press 23 M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument, Cambridge, CUP, 2005, p. 231.
General theoretical issues of sovereignty in the
Western science of international law are considered by
J. Crawford24, S. Besson25, C. Merriam26, J. Jackson27 and
D. Sarooshi28. The concept of sovereignty has been
criticized by L. Henkin29 from the point of view of
globalization and human rights.
The understanding of the essence of sovereignty has
changed since the introduction of this concept in the
works by J. Bodin, who identified it with the authority
of the monarch, granted him by God 30. It happened due to
the evolution of the institutions of State power, bodies
of government and public authority in the world, as well
as due to the evolution of legal consciousness of both
ordinary citizens and persons endowed with public
authority.
24 J. Crawford, The Creation of States in International Law (Oxford, OUP, 2nd
ed., 2006), p. 32-33; J. Crowford, Sovereignty as a Legal Value / J. Crowford, M. Koskenniemi (eds.) / The Cambridge Companion to International Law (Cambridge, CUP, 2012), p. 117 25 S. Besson, Sovereignty / R. Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, OUP, 201326 C. E. Merriam, History of the Theory of Sovereignty since Rousseau, Union, NJ,Lawbook Exchange, 199927 J. H. Jackson, Sovereignty-Modern : A New Approach to an Outdated Concept (2003) 97 AJIL 8228 D. Sarooshi, Essentially Contested Nature of the Concept of Sovereignty : Implications for the Exercise by International Organizations of Delegated Powers of Government (2004) 25 Michigan JIL 110729 L. Henkin, That ‘S’ Word: Sovereignty and Globalization, and Human Rights, et Cetera (1999) 68 Fordham L. Rev. 130 Jean Bodin, Les Six livres de la République (1576), cited in J. G.Starke, ‘Monism and Dualism in the Theory of International Law’ (1936) 17 BYIL68.
Such conceptual characteristic of State sovereignty as
its orientation to the limitation of powers and authority
of everybody, apart from the authorized government,
remained unchanged. Notwithstanding the discrepancies in
the approaches to the determination of the legal nature
of sovereignty, most scholars rely on its territorial
component. Sovereignty is a characteristic of a State, as
distinguished from international organization, and it is
closely related to the concept of State’s territory. This
Statement has been proved by the international case law.
In the case resolved by the International Court of
Justice sovereignty was defined as ‘the totality of
international rights and duties recognized by
international law’, as may be possessed by a State as an
independent territorial entity31.
Therefore, such essential characteristic as
‘territoriality’ of sovereignty, when applying to
information sphere, does not match up with an
extraterritorial nature of information flows. This
argument is further explored to justify the need for the
transformation of the concept of sovereignty for it to be
able to successfully operate in the realm of global
information society.
Among the characteristics of States as subjects of
international law it is important to note sovereign
31 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports 1949, p. 180.
equality, established in Article 2 (1) of the UN Charter,
though this equality appears to be rather formal. Thus,
sovereignty provides for formal equality, i. e. States
possess equal rights and duties, but are not equal in
their actual enforcement.
Under the conditions of actual economic and
technological inequality of States (for example, in terms
of level of information technology penetration), one may
speak about only formal equality of States in the
information sphere. When it comes to ensuring information
security of a State, its formal parity with other States
will do a fat lot of good. Active advancement and
protection of national interests on the international
scene, using ICTs, is more helpful than formal presence
and enjoyment of equality. Whether the State is a party
to the international treaties in the infocommunication
sphere (for example, the International Telecommunication
Regulations of ITU, Dubai, 2012), this fact cannot
deprive it of its sovereignty, though it may have a
direct bearing on the efficiency of its national
information security and its position on the
international scene.
In the case of the S.S. ‘Wimbledon’, the Permanent Court
of International Justice declined ‘to see in the
conclusion of any Treaty by which a State undertakes to
perform or refrain from performing a particular act an
abandonment of its sovereignty’ and confirmed the right
of entering into international engagements to be ‘an
attribute of State sovereignty’32.
This international law case, included in the syllabus
of international law theory, is interesting not only due
to its construction, but also due to its context that can
be applied by analogy to information sphere. We are also
interested in this case in relation to the State’s
control over ‘information flows from abroad’ as the case
deals with the passage of the steamship through the Kiel
Canal by the territory of Germany, which may be applied
by analogy to transfrontier information flows.
In this case, an English steamship, the Wimbledon,
chartered by the French Company, Les Affréteurs réunis, carried
munitions and artillery stores consigned to the Polish
Naval Base at Danzig. The vessel presented itself at the
entrance to the Kiel Canal, but was refused permission to
pass, based upon the neutrality of Germany in Russo-
Polish war. The Court having considered the merits of the
case ruled that Germany was absolutely free to establish
any neutrality regulation during the Russo-Polish war but
this neutrality regulation did not put it under an
obligation to refuse a transit of the steamship. As the
canal has ceased to be an internal and national navigable
waterway of Germany it was obliged to allow the ship to
pass through the Kiel Canal.32 The SS ‘Wimbledon’, PCIJ, Ser. A., No. 1, 1923, p. 25
Thus the Court confirmed that State sovereignty is
restricted by the obligations of States under
international law. Information flows as is the case with
the Kiel Canal which the SS Wimbledon intended to use are
not internal and national navigable waterways of any
State as they belong to the global information
infrastructure. Free information flows may be restricted
only to the extent established by international law.
Challenges such as mass extraterritorial movement of
people, assets, goods and information caused by
globalization produce a certain impact on the concept of
sovereignty as State compete with other actors possessing
regulatory levers. It is especially noticeable in
information sphere where the relationships have an
ecosystem nature33.
B. Kingsbury is concerned about the fact that States
are losing their normative priority over other actors. In
his opinion, this can result in adverse consequences as
it ‘will intensify inequality, weakening restraints on
coercive intervention, diminishing critical roles of the
state as a locus of identity and an autonomous zone of
politics, and redividing the world into zones’34.
However, in J. Crawford’s opinion, it will not remove
or weaken the concept of sovereignty: ‘It is not only on33 Assessing the impacts of changes in the information technology R & D ecosystem : retaining leadership in an increasingly global environment, National Research Council (U.S.), Washington, D.C. : National Academies Press, 2009 34 B. Kingsbury, Sovereignty and Inequality (1998) 9 EJIL 599
the international plane that the limits of sovereignty
are variable and flexible. The apparently clear boundary
between the internal and the international also shifts as
States enter into new treaties and as new areas of
international activity evolve, for example with respect
to human rights… This does not so much erode the notion
of sovereignty as reconfigure it’35.
To substantiate the fact that the concept of
sovereignty is flexible, adapting to the conditions of
globalization, compatible with a variety of complex forms
of government and with the evolution of international
institutions, J. Crawford refers to the procedure of the
Rome Act of the International Criminal Court adoption.
Non-governmental organizations were allowed to take part
in this process by invitation only. When their ability to
influence the position of States manifested itself, in
the course of making key decisions on the composition and
structure of the Court, they were asked to leave the
conference room, which, in the author’s opinion,
‘sovereign States retain their collective monopoly of
international process’36.
However, the statement made about the State’s monopoly
of international process is disproved by contemporary
practice of involving civil society and private sector in
35 J. Crawford, Chance, Order, Change: The Course of International Law, Hague Academy of International Law, 2014, p.92, para 9736 Ibid., p. 111
preparation and adoption of political and legal decisions
as equal parties of negotiations, which continues to
spread and gain the characteristic of an international
custom. It was at first recognized in international
environmental law. Relevant provisions were included in
international treaty, in particular, in the Aarhus
Convention on Access to Information, Public Participation
in Decision-Making and Access to Justice in Environmental
Matters37.
At present, any international treaty exists in the
sphere of Internet governance. However, the custom of
involving all stakeholders in the adoption of decisions
which determine evolution and functioning of the Internet
emerged during the World Summit on the Information
Society (WSIS: Geneva, 2003 – Tunis, 2005). It is
confirmed by the working definition of ‘Internet
governance, approved by WSIS: ‘Internet governance is the
development and application by Governments, the private
sector and civil society, in their respective roles, of
shared principles, norms, rules, decision-making
procedures, and programmes that shape the evolution and
use of the Internet’38.
It was also recommended to adopt a multi-stakeholder
approach at all levels. The follow-up forums (IGF,37 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Aarhus, Denmark, 25 June 1998, UNTS, Vol. 2161, p. 447.38 www.itu.int/wsis/outcome/booklet.pdf
NETMundial) which determined the development of the
Internet were also held with equal participation of the
governments, the civil society and the private sector.
Violation of the aforementioned procedural custom
during the preparation of the international treaties,
related to the Internet, resulted in adverse
consequences, such as negative response of the
international community which led to the lack of
consensus during the adoption of the new version of the
International Telecommunication Regulations at the ITU
Conference in December 2012, Dubai. Earlier there
occurred a failure of the European Union’s accession to
ACTA (Anti-Counterfeiting Trade Agreement), strengthening
the responsibility for ‘e-piracy’. While the European
Commission adopted a draft on ACTA ratification without
public consultations, the European Parliament, taking
into consideration the opinion of the public, rejected it
in July 2012.
Although during the accession to ACTA there were no
formal violations of the Vienna Convention on the Law of
Treaties39, the lack of public participation in the
process made it unlawful due to the violation of the
custom of multi-stakeholder approach to Internet
governance.
39 Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, UNTS, Vol. 1155
Exploring the transformation of sovereignty, J. Cohen
proposes viewing this process as ‘the emergence of a new,
dualistic sovereignty regime’40. The same opinion is
shared by K. Schiemann, who speaks about new world order
‘on the basis of a pluralistic rather than monolithic
conception of the exercise of political power and legal
authority’41. As an example of the transformation of
sovereignty, both authors cite the European Union as a
supranational political project.
J. Habermas claims that States are losing their
political heft, as compared to the ‘post-national
constellation’ based on regional cooperation, as may be
observed in the European Union42.
The concept of the ‘global constitutional community’
has been developed to ruin the hierarchy in the relations
between the State and the individual and to limit
imperious privileges of a State43. Among the reasons which
lead to the loss of monopoly on regulation, held by
States, J. Malcolm mentions the lack of ability to
properly respond to current normative challenges which
40 J. L. Cohen, Sovereignty in the Context of Globalization: A Constitutional Pluralist Perspective, in Besson and Tasioulas, p. 262.41 K. Schiemann. Europe and the Loss of Sovereignty (2007) 56 ICLQ 48742 Jurgen Habermas, Die postnationale Konstellation. Politische Essays Frankfurt/Main: Suhrkamp, 199843 Jan Klabbers, Anne Peters and Geir Ulfstein, The Constitutionalization of International Law (2008), Oxford: Oxford University Press, p. 154
continue to extend beyond the scope of their (separate)
regulatory capacity and competence44.
In М. Kettemann’s opinion, ‘The information and
communication technologies (ICTs) framing the political
and legal space of the information society reduced the
relevance of borders and showed al too clearly the limits
of regulation of any individual state. The emerging law of
Internet Governance with its intricate multistakeholder
structure showed that legitimate and effective regimes
could exist where states would be only one actor among
many, albeit one of central importance45.
The role of a State as the sole ‘guarantor’ of
security was reviewed as a result of emergence of the
concept of ‘human security’, under which individual
security becomes the focus of international law.
Certainly, it moves the balance between the State’s
sovereignty and the interests of individual security,
resulting in the transformation of sovereignty into the
new quality of ‘sovereignty as responsibility to
protect’46.
The International Commission on Intervention and State
Sovereignty proposed a new approach to the concept of44 Jeremy Malcolm, Multi-stakeholder Governance and the Internet Governance Forum Perth: Terminus Press, 2008, p. 13145 Kettemann, Matthias C. The Future of Individuals in International Law. Lessons from International Internet Law / Matthias C. Kettemann. – Eleven International Publishing, 2013. – p. 246 Based on the official web-site of The UN Special Adviser on the Prevention of Genocide, The Responsibility to Protect, http://www.un.org/en/preventgenocide/adviser/responsibility.shtml
sovereignty, introducing ‘responsibility to protect’
within the territory of the States and abroad:‘Sovereignty as Responsibility
2.14 The Charter of the UN is itself an example of an
international obligation voluntarily accepted by member states. On
the one hand, in granting membership of the UN, the international
community welcomes the signatory state as a responsible member of
the community of nations. On the other hand, the state itself, in
signing the Charter, accepts the responsibilities of membership
flowing from that signature. There is no transfer or dilution of
state sovereignty. But there is a necessary re-characterization
involved: from sovereignty as control to sovereignty as
responsibility in both internal functions and external duties.
2.15 Thinking of sovereignty as responsibility, in a way that
is being increasingly recognized in state practice, has a
threefold significance. First, it implies that the state
authorities are responsible for the functions of protecting the
safety and lives of citizens and promotion of their welfare.
Secondly, it suggests that the national political authorities are
responsible to the citizens internally and to the international
community through the UN. And thirdly, it means that the agents of
state are responsible for their actions; that is to say, they are
accountable for their acts of commission and omission. The case
for thinking of sovereignty in these terms is strengthened by the
ever-increasing impact of international human rights norms, and
the increasing impact in international discourse of the concept of
human security’47.
47 International Commission on Intervention and State Sovereignty, The Responsibility to Protect, Ottawa, IDRC, 2001, p. 13.
In September 2005, during the United Nations World
Summit, all Member States officially recognized the
principle of ‘responsibility to protect’. The UN Security
Council confirmed the provisions of the World Summit
Outcome in its Resolution 1674 (2006) concerning the
protection of civilians in armed conflict48.
The concept was further developed in 2009 Report of
the Secretary-General to the General Assembly
‘Implementing the Responsibility to Protect’49. The Report
emphasizes the importance of efficient cooperation of
global and regional organizations to ensure fulfilment of
obligations to protect, proposes the UN measures to
strengthen cooperation, as well as the ways of
identifying signals of trouble and implementing or
providing assistance in the implementation of timely and
efficient preventive measures at the sub-regional,
regional and global level with the use of information and
analytical data, received from regional and sub-regional
mechanisms.
In 2012, the Secretary-General presented new Report
‘Responsibility to Protect: Timely and Decisive
Response’50. This Report deals with mechanisms available
48 S/RES/1674 (2006) Protection of civilians in armed conflict, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N06/331/99/PDF/N0633199.pdf?OpenElement49 A/65/877-S/2011/39350 А/66/874-S/2012/578
under pillar three of the responsibility to protect,
partners involved in its implementation, etc.
The concept of sovereignty as responsibility is at
stage of its development and search for legal grounds and
is met with a mixed reaction. Criticizing it, J. Crawford
argues: ‘Since it is not suggested that a State’s
responsibility to protect its own people should have any
particular legal incident, beyond existing obligations in
international human rights, humanitarian law and criminal
law, it is doubtful how much this develops the current
legal position’51.
In our opinion, the definition, proposed by the
International Commission on Intervention and State
Sovereignty, is functional and suitable for normative
use. This definition reflects changes, caused by
globalization, and provides for the exercise of
sovereignty as responsibility to protect people in the
territory of the State and abroad. It is especially
important for the information sphere, due to its
extraterritorial nature.
At present, the characteristic of sovereignty as a
control, limited by the territory of State, has lost its
value, especially when it comes to the exercise of
State’s sovereignty in the information sphere, having
extraterritorial nature. Having replaced the approach of
national regulatory monopoly and collective monopoly of51 J. Crowford, p. 112
States on participation in the international political
process, the functional concept of sovereignty in the
information sphere as responsibility to protect provides
for efficient response to the challenges of the modern
age. There is a need to review the understanding of
sovereignty as responsibility for domestic functions and
external obligations of a State in the information
sphere, including but not limited to the issues of
national information security.
The development and legal substantiation of the
concept of sovereignty as responsibility to protect in
the information sphere need further elaboration, in
particular, concerning the determination of domestic
functions of a State, based on the approach of shared
responsibility of government and non-governmental actors
— the civil society and the private sector — each
performing its functions in the information ecosystem. In
addition, it is necessary to address the issue of
external functions of State concerning the protection of
national interests in the information sphere, with an
account taken of the existing actual inequality of States
in terms of level of development of information and
communication infrastructure and technologies.