Towards the Next “Grotian Moment” Forming the Consensus on Cyber Sovereignty through Customary International Law

Abstract

The burgeoning advancements in information technology and cyberspace have prompted a global imperative for nations to engage in regulating the Internet. These endeavors represent an extension of traditional sovereignty principles, leveraging state authority for their implementation. Across the international landscape, nations are asserting varying degrees of sovereignty in cyberspace, reflecting diverse interpretations of the concept. This plurality underscores the multiple interests that different regimes prioritize in response to the challenges posed by Internet technologies. However, this diversity of perspectives has engendered a proliferation of uncertainty within global cyber governance frameworks, impeding the coherent application of international law in cyberspace. Customary International Law (CIL) serves as a pivotal mechanism capable of transcending this hermeneutic variability in cyber governance. By institutionalizing the minimum consensus among states as a foundation for international norms, CIL offers a pathway to navigate the complexities surrounding the notion of cyber sovereignty and delineate the normative rights and obligations of states in the realm of international cyber governance. This paper aims to dissect the contemporary "Grotian Moment" concerning cyber sovereignty, a moment characterized by the rapid evolution of CIL about cyberspace. Through an analysis of influential international non-binding policy documents and the cyber governance practices of key nations, the paper endeavors to illustrate the existence of a foundational consensus and behavioral norms governing cyber sovereignty within the international community. It interrogates whether the prevailing international consensus and state practices can catalyze the emergence of a new "Grotian Moment" in international law. In pursuit of expediting the realization of this customary law, the paper proposes a two-pronged strategy: first, the formulation of a binding declaration of principles by the United Nations, predicated on a foundational consensus regarding cyber sovereignty; and subsequently, the collaborative development of international Internet norms by diverse nations based on their respective governance frameworks.