The notion of Territory holds a special place in Public International Law. It is the locus of Sovereignty, without which the entire system of International rules and protections collapses. Sovereignty is the foundational concept underlying the Nation State: the primary Actor in International Relations.
Moreover, Territory is the sine qua non of human habitation — however vertical a State decides to build, humans require land in order to grow and thrive.
I think humanity is approaching – or has already passed – the point where a similar thing can be said for our collective digital existences. No Nation State can get by without effective control over its digital persona, or the infrastructure that contains it. Like territory, our digital selves are also bound to a specific place and time, although a slightly more mobile one: the infrastructure that undergirds and supports the digital lives not just of citizens but of organizations and States themselves.
Currently, there is debate whether international law should prohibit cyber attacks, more specifically cyber espionage, based on the current system of Sovereignty, which is itself based on the notion of Territory. Some say international law already does so and the concept of Sovereignty can be extended to cover digital infrastructure as well. Others disagree and maintain that in cases of cyber espionage a further aggravating factor must be satisfied in the form of significant damage that extends from the actual cyber attack.
This article disagrees with both positions and calls for a rethink of the concept of Territory. In fact, I think it should be replaced. The new concept of Substrate would regard the entire foundation that supports human thriving, including both Territory and the (Digital) Infrastructure that supports modern lives, not just of individuals but of States themselves. This concept is meant to be broad, open and extensible, and is also meant to confer rights and obligations to States and other Actors. The immediate beneficiary of such a novel and open concept is the cornerstone concept of Sovereignty, which buttresses much of the system of law that exists today.
By equating a State’s digital infrastructure with its territory, cyber attacks immediately become attacks on that State’s sovereignty, lifting much of the legal uncertainty that currently shrouds such attacks. By allowing for international law to extend the concept of Substrate into the digital realm (and further), it both safeguards and protects the foundations of the international legal order and humanity’s future trajectories, away from the mere dependence on Territory as its Substrate.
In short, Substrate can become the extensible and foundational concept on which Sovereignty (and thus the entire international legal system) is based.