Abstract: Cyberspace is open and operates across borders. Aware of significant challenges that this poses to the international community, the UN has adopted several resolutions calling for the use of cyberspace in accordance with the UN Charter. It also set up a government expert group to deal with cyberspace issues. Yet, due to a lack of consensus, reports of the expert group could not be endorsed by the UN. The rapid integration of cyberspace into our lives necessitates regulation of its operation. The question is which rules may govern the cyberspace. This article argues that the UN Expert Group’s reports clearly show that there is a consensus among the international community that cyberspace is subject to international law including the UN Charter. It also argues that agreements reached by states at regional and bilateral levels, customary international law and existing rules of international organisations such as the World Trade Organization (WTO) constitute a body of cyberspace governance rules. In accordance with the relevant International Court of Justice (ICJ) judgments and International Law Commission’s (ILC’s) conclusions on identification of customary international law, it is the view of this author that customary norms applicable to cyberspace may be constituted through practices of the user states as special customary international law rules and that practices of Internet companies and entities, despite their nonbinding nature on states, may contribute to the confirmation of the existence of such customary rules.
Keywords: cyberspace; cybersecurity; sovereignty; Internet; big data; customary international law; digital economy; information and communications technology; WTO
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