Cyber-espionage in international law

Thibault Moulin is a Tenured Associate Professor of Law at the Catholic University of Lyon and a Full Member of the CONFLUENCE Research Unit. He is also a Research Associate at the Federmann Cyber Security Center of the Hebrew University of Jerusalem (Israel) and CERDAF of Savoy-Mont-Blanc University (France). He served as a Captain in the Citizen Reserve of the French Air and Space Force.

• Part I: IntroductionIntroduction to Part I1 Main notions1.1 The concept of ‘cyber-espionage’1.2 The concept of ‘cyber-space’2 Methodological and conceptual frameworks2.1 The determination of law2.1.1 The approach to treaty interpretation2.1.2 The approach to sources2.2 The concept of normative avoidance2.2.1 Definition2.2.2 NoveltyPart II: The rules connected to territorial integrityIntroduction to Part II3 Territorial sovereignty3.1 The dissimilarities between physical trespass and digital intrusion3.1.1 Espionage per se is not an international wrongful act3.1.2 The lack of an analogy between digital and physical intrusions3.2 The ‘do-not-harm’ challenge and the minimal effects of cyber-espionage4 Collective security law4.1 A traditional interpretation of the UN Charter does not result in a regulation of cyber-espionage4.2 Alternative interpretations of cyber-espionage do not result in the regulation of cyber-espionage4.2.1 Interpretation based on meta-rules4.2.2 Teleological interpretation5 The law applicable between belligerent States5.1 The territorial rationale of the regulation of espionage between belligerents5.1.1 The categories of spies defined by the law of armed conflict5.1.2 The challenging application of rules about espionage in a digital space5.2 A lack of State support in favour of the application of espionage-related rules in cyber-space6 The law applicable between belligerent and non-belligerent States6.1 The absence of a regulation by rules on material operations6.1.1 The obligations between belligerents6.1.2 The obligations on neutral States6.2 A limited restriction of cyber-espionage by rules on the use of telecommunications6.2.1 The obligations between belligerents6.2.2 The obligations on neutral StatesConclusion to Part IIPart III: The rules disconnected from territorial integrityIntroduction to Part III7 The law of diplomatic relations7.1 Indirect regulation of espionage by embassies7.1.1 The accreditation of the mission7.1.2 The performing of the mission7.2 Indirect regulation of espionage on embassies7.2.1 The lack of regulation by the inviolability of diplomatic premises7.2.2 The incompatibility of cyber-espionage with the rules protecting the inviolability of archives and documents8 International economic law8.1 The absence of a prohibition of economic cyber-espionage8.1.1 The absence of a prohibition by national treatment8.1.2 The absence of a prohibition by the obligation to protect undisclosed information8.2 The tolerance of cyber-espionage required for the preservation of essential security interests8.2.1 Cyber-espionage activities in peacetime8.2.2 Cyber-espionage in a time of war or other emergency in international relations9 International human rights law9.1 The absence of extraterritorial jurisdiction in the event of remote cyber-espionage activities9.2 The measured regulation of surveillance activities by the right to privacy9.2.1 Interference and legality9.2.2 Legitimacy and proportionality10 State practice10.1 The unanimous prohibition of espionage by domestic criminal laws10.1.1 The traditional prohibition of espionage10.1.2 The progressive prohibition of digital intrusions and interceptions10.2 The predominant authorisation of one’s own intelligence activities against other States10.2.1 Provisions authorising intelligence gathering10.2.2 Grounds allowing intelligence collection11 Opinio juris11.1 The absence of a right to spy11.2 The absence of a prohibition on espionageConclusion to Part IIIConclusionIndex