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.