Sovereignty and Network Sovereignty

Abstract

National sovereignty is the basic subject of the theory and practice of contemporary international law, occupies a crucial position. In order to studying the sovereignty of internet, we need to have an accurate cognition on the traditional concept of sovereignty. In this chapter, we introduce sovereignty from three perspectives: the historical background of traditional sovereignty, the adaptability of sovereignty in cyberspace or network sovereignty, and the sovereignty in the cyber era. Finally, we define sovereignty in cyberspace from the perspective of jurisprudence.

National sovereignty is the basic subject of the theory and practice of contemporary international law, occupies a crucial position. In order to studying the sovereignty of internet, we need to have an accurate cognition on the traditional concept of sovereignty. In this chapter, we introduce sovereignty from three perspectives: the historical background of traditional sovereignty, the adaptability of sovereignty in cyberspace or network sovereignty, and the sovereignty in the cyber era. Finally, we define sovereignty in cyberspace from the perspective of jurisprudence.

1.1 Historical Background

Sovereignty, the supreme and exclusive political power which a state processes over its jurisdiction. It’s the supreme authority for self-determination.

1.1.1 Origin of Traditional Sovereignty

The author of the Dictionary of Taxation, Wang Meihan, pointed out that “National sovereignty is the most important attribute that distinguishes a state from other social groups. It is the inherent supreme power of a nation in the domestic as well as the independence and sovereign right in the international sphere. Any state has the right to choose its social system and state form, organize its government, and independently decide and handle its internal and external affairs according to its discretion and national condition. Any form of aggression or interference by other states is prohibited” [1]. In the United States Declaration of Independence [2], the founders pointed out that the root of national sovereignty lies in all citizens. Before that, the perception of sovereignty has been debated for a long time (Fig. 1.1).

Fig. 1.1

United States Declaration of Independence [3]

Jean Bodin was a French jurist and political philosopher who firstly unequivocally put forwards the concept of sovereignty. His classical definition of sovereignty in The Six Books of a Commonwealth was: “The supreme power to rule over citizens and subjects, which is Non-Divisible, Non-Transferable and Non-Annihilable, not bound by law or time. It is the inherent power of the state, and this inherent power exists forever and represents the legitimacy of the unification of state power” [4]. In other words, states existed for sovereignty rulers. Since its strong monarchical ruling color, this view on sovereignty was called monarchy sovereignty theory (Fig. 1.2).

Fig. 1.2

Portrait of Jean Bodin [5]

Johannes Althusius was a German jurist, he had pointed out that, “The state exercises its sovereignty, but sovereignty belongs to the people, and this power should be vested in its administrators according to the arrangements of the laws of the State”, improved the monarchy sovereignty theory (Fig. 1.3).

Fig. 1.3

Johannes Althusius, engraving by Jean-Jacques Boissard [6]

According to the international relations at that time, Hugo Grotius, a great Dutch jurist and thinker, further generalized the concept of sovereignty: “Sovereignty means that the exercise of power is not restricted by others. When a state handles internal affairs without any others’ control, it is manifested as sovereignty” [7] (Fig. 1.4).

Fig. 1.4

Portrait of Hugo Grotius by Michiel Jansz. van Mierevelt, 1631 [8]

The modern significance of sovereign state appeared after the formation of the capitalist nation of centralization of authority. At the end of the three decades of European religious wars, European countries signed the Peace of Westphalia, which established the principles of national sovereignty, national territory and national independence, and then, the Westphalian System with the state as the basic unit was established [9]. Later, due to the emergence and development of the European Community and other international organizations, more and more western scholars believed that the national sovereignty was non-transferable, and the concept of sovereignty, as the cornerstone of dealing with national political affairs and international relations, was gradually accepted by the international community and evolved into new connotations (Fig. 1.5).

Fig. 1.5

Peace of Westphalia in Münster (Gerard Terborch 1648) [10]

In 1905, renowned German jurist L. F. L. Oppenheim pointed out in his book Oppenheim’s International Law that, “Sovereignty is the highest authority of a state, it doesn’t mean that it is superior to all states under international law, but implies full independence” [11]. Besides, Article 2 of the UN Charter [12] also had a stipulation of the sovereign equality of member states.

The emergence of the concept of sovereignty promotes the perfection of the international order and international law system (Figs. 1.6 and 1.7).

Fig. 1.6

International law: a treatise. Vol. 1. Peace by L. Oppenheim, LL.D. [13]

Fig. 1.7

International law: a treatise. Vol. 2. War and Neutrality by L. Oppenheim, LL.D. [14]

1.1.2 Traditional Sovereignty

The basic elements of a sovereign state are population, territory, regime and sovereignty. The core of building a nation and state is sovereignty. Sovereignty is the supreme power that a country deals with its internal and external affairs independently. A sovereign state needs to ensure four fundamental rights—jurisdiction, self-defense, independence and equality. Specifically, a state has the power to exercise jurisdiction over all persons and matters within its territory, as well as nationals outside its territory. It has the right to establish a political and socio-economic system combined with its circumstance. To safeguard its political independence and territorial integrity, a state has the right to defend itself against foreign aggression and threats. It is completely independent and free from external interference to exercising the power of a state. In international law, all sovereign states, whatever size, strength, political, economic, ideological and social system, are equal.

Jean Bodin, the founder of the sovereignty theory, pointed out that, “Sovereignty is the principle of the existence of a state, and it is the non-divisible and non-transferable supreme power of a state within its territory”. Sovereignty is of great significance in the exchanges between states. In essence, it is the baseline to distinguish states and thus generates the symbols of sovereign states, such as national names, national flags, national emblems, national borders, national anthems, nationalities, national languages, and nationals.

Overall, sovereignty contains three elements: territory, people and regime, which were explained in articles 78, the first preambular paragraph and the second preambular paragraph respectively of the Charter of the United Nations [12]: “The trusteeship system shall not apply to territories which have become Members of the United Nations, relationship among which shall be based on respect for the principle of sovereign equality.” “We the peoples of the united nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom, and for these ends to practice tolerance and live together in peace with one another as good neighbors, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, have resolved to combine our efforts to accomplish these aims. Accordingly, our respective governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.”

In short, state sovereignty comprises three elements: the land, sea, air, resources, the persons within territory and nationals outside the territory, as well as the equal and independent regime. Only the political unit with a fixed territory, a certain population, a certain form of regime organization, and sovereignty can be called a sovereign state.

1.1.3 Mission of Sovereignty

With the foregoing discussion, sovereignty has both internal and external properties. The highest internal attribute of sovereignty is the political ruling power of a state, which realizes the internal unity of a state through the legislative, administrative, judicial, military, economic, cultural, and other means. The external attribute of sovereignty derives from the highest internal attribute of sovereignty, which consists of the self-determination of a state and integrity of territorial, which is realized by military, legal, diplomatic, economic, and other means. Sovereignty demands governing by law internally and maintaining independence and autonomy externally. The legal form of sovereignty is commonly defined in the constitution or basic law. It has the internal property and the external property. The external property of sovereignty is international mutual recognition. In short, it is the obligatory mission of sovereignty to resist foreign aggression and pacify the interior.

1.2 Adaptability of Sovereignty in Cyberspace

National sovereignty is the basic subject of the theory and practice of contemporary international law, occupies an important position. Cyberspace, a fundamental space in addition to land, sea, and air space, but lacks the international code of conduct. In recent years, more and more attention has been focused on the adaptability of national sovereignty in cyberspace. Especially after the outbreak of vicious cyber incidents such as PRISM, the discussion on the sovereignty in cyberspace continues unabated.

1.2.1 Composition of Cyberspace

The problem of how to divide the boundary of the cyberspace means how to form the cyberspace and establish sovereignty [15]. Before discussing the adaptability of national sovereignty in cyberspace, we introduce the constitution of cyberspace from three aspects: the definition, the legal attributes [16], and the boundaries of cyberspace [17].

Cyberspace is different from the traditional space of sea, land, and air. Different countries hold different positions and views on the legal attributes and the exercise of rights in cyberspace. The International Telecommunication Union (ITU) defined cyberspace as “the physical and non-physical terrain created by and/or composed of some or all of the following: computers, computer systems, networks, and their computer programs, computer data, content data, traffic data, and users” [18]. In 2003, the United States defined cyberspace as “the interdependent network of information technology infrastructures” in the National Strategy to Secure Cyberspace [19]. The definition of cyberspace affects the determination of network sovereignty. Network sovereignty determines the rationality of the state jurisdiction over the infrastructure and information content of cyberspace and the right of external defense. The international community needs a unified definition of cyberspace and network sovereignty based on laws (Fig. 1.8).

Fig. 1.8

The National Strategy to Secure Cyberspace (February 2003) [20]

There are mainly two kinds of legal attributes about cyberspace: infrastructure theory and domain theory at present. In the infrastructure theory, the Internet is regarded as an important infrastructure of a state, and the Internet within national boundaries is under the jurisdiction of the sovereignty. The National Information Infrastructure: Agenda for Action, issued by The US government, clearly defined this concept. And the Chinese government also made a similar statement in relevant documents. In the domain theory, cyberspace is regarded as an area where sovereignty can be exercised, and the government should claim the legitimate right of self-defense against cyber attack, which was stipulated in the International Strategy for Cyberspace promulgated by the U.S. government (Fig. 1.9).

Fig. 1.9

International Strategy for Cyberspace (May 2011) [21]

A state’s demarcation of the boundary of cyberspace under its sovereignty is also the issue of cyber boundaries. Just as cyberspace is defined as a physical and non-physical domain, the boundaries of cyberspace should also include physical and non-physical boundaries. Cyber boundaries are the collection of the physical geographical boundaries and the non-physical network boundaries. Physical geographical boundaries are the territorial boundaries within the scope of a state’s sovereignty, including the territorial boundaries of a state, and the geographical space where the national sovereignty covers, such as consulates and aircraft. Non-physical network boundaries are the intangible boundary established through network technologies, such as firewall, password system, dynamic protection of intrusion detection system, and other technical barriers.

Dividing national jurisdiction over cyberspace is to divide the cyberspace boundary among states in the global cyberspace on the premise of admitting the existence of cyberspace, and to determine national sovereignty in cyberspace.

1.2.2 Network Sovereignty in the New Era

Network sovereignty is the product of the new era, deriving from the existence of cyberspace. Different from the land, sea, and air fields which boundaries are relatively stable, in the Internet world, the national boundaries have expanded to the virtual world, and the network boundaries are invisible and the spatial scope is not clear.

On the one hand, the development of network technology and innovation expands the space of network boundaries. States are competing fiercely for the development, possession, analysis, and application of cyberspace information resources. With the policy game between different states, the strength of information technology capability, and the level of international status altering, the boundaries of network sovereignty are constantly changing and adjusting.

On the other hand, the emergence of international organizations such as the United Nations (UN), the World Trade Organization (WTO), and the International Organization for Standardization (ISO) has brought new opportunities and challenges to the development of network sovereignty. The emergence of these international organizations further expands and strengthens communications and coordination among international counterparts. Trade and cultural exchanges provide good opportunities for cultural communication. The increase in communications between the advanced techniques and equipments in the world has created favorable conditions for the network to improve the overall technological level and accelerate technological upgrading. At the same time, in the international competition, cyber powers can effectively expand their sovereign borders by technological strengths, while the relatively weak ones are faced with the constant compression and adjustment of the scope of network sovereignty.

Taking the China Broadcast Network as an example, after China’s entering World Trade Organization (WTO), the opportunities and challenges have increased the sense of urgency for the reform and development of the China broadcasting and television system. This helps radio and television industries develop professional video services that meet the personalized needs and the new generation of radio and television types such as high-definition television (HDTV) and interactive television (ITV), which will expand the space for the survival and development of radio and television. China plays an active and constructive role in the WTO [22]. China’s accession to the WTO has brought new challenges to the radio and television industries. The competitions between traditional media such as broadcast television, audio-video, books, newspapers, and new media such as the Internet will be increasingly intensified. Advertisement, programs, talent and other resources will be redistributed. With the entry of large foreign media groups, the exotic cultures and values may squeeze the living space of local culture and bring potential and profound influence on the broadcast television industries.

In the process of copyright protection, the China Broadcast Network has continuously strengthened communications and coordination with the world. In 1980, China became a member of the World Intellectual Property Organization (WIPO). In 1992, China acceded to the Berne Convention for the Protection of Literary and Artistic Works and the Universal Copyright Convention. In 1993, China acceded to the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms. China became a member of the world copyright family. China’s accession to the WTO has accelerated the process of China’s copyright legislation, and further improved the level of copyright protection.

Broadcasting organizations enjoy extensive protection of their programs under the Copyright Law, which further expands their neighboring rights. In terms of copyright protection, both China and other members of WTO, carry out activities within the framework of TRIPS, enjoy the same rights and obligations as each other, enjoy national treatment and most-favored-nation treatment, and provide a dispute settlement mechanism for solving copyright disputes. Besides, accession to the WTO is conducive to promoting the mutual understanding and cooperation between China and WTO member states in copyright legislation and law enforcement, strengthening the communication of copyright information, studying the new issues of copyright protection faced together, and constantly improving the level of copyright protection.

In terms of copyright protection, as cultural products, the programs in broadcast networks are treated by each state with different special policies from general merchandise. In the negotiations for the accession to WTO, China has never made any commitment to the opening of radio and television programs. Even if some overseas TV channels are launched in parts of China, they are only handled as mutually beneficial cooperation cases. This will help enhance cultural exchanges between China and other states and regions on the premise of protecting the copyright of the broadcasting network, to make full use of advantages and avoid disadvantages. China’s radio and television industries will further accelerate the pace of reform and opening up, and further, promote the development of network sovereignty in the WTO. In Chap. 3, we propose the sovereignty network architecture based on China Broadcasting Network.

1.3 Exploration of Network Sovereignty

Scholars at home and abroad have made a series of achievements in the study of sovereignty in the Internet era, which is of great theoretical significance for promoting the international governance of cyberspace. But on the whole, the study of sovereignty in the Internet age is still in its infancy.

1.3.1 Theoretical Contend

There are mainly four mainstream views on the theoretical debate of network sovereignty: the theory of negating sovereignty in cyberspace [15], the theory of non-sovereignty in cyberspace, the theory of limited sovereignty in cyberspace, and the theory of complete sovereignty in cyberspace.

• 1. Theory of Negating Sovereignty in Cyberspace

Internet strategists who are vested interests in the current network architecture, advocate the global commonality or attribute of the Internet. This is to treat cyberspace as an international space similar to the high seas, and not to assert national sovereignty. This concept, though immature and controversial, poses a challenge to state sovereignty in cyberspace. Although this theory advocates network freedom and promotes the “de-government” governance model of cyberspace [23], in essence, it still shows the control of cyberspace sovereignty everywhere.

For example, on Oct. 27, 2015, the U.S. Senate introduced the Cybersecurity Information Sharing Act of 2015. The bill allowed private industries to share information collected on their users with the Department of Homeland Security (DHS). It gave the United States the right to track down and arrest citizens of other states, regardless of their nationality or location [24]. The bill broke the equal relationship between states when tracking criminal suspects. It essentially controls state sovereignty in cyberspace.

In 2018, the U. S. Defense Department released the Cyber Strategy that emphasized the concept of “Defense forward”. This has been interpreted by the outside world as the US military would implement network attacking and defense moves in other states. In August of that year, U.S. President Donald Trump signed an order overturning President Barack Obama’s Presidential Policy Directive no. 20(PPD-20), giving the military more freedom to deploy advanced cyberweapons without being blocked by the State Department or the intelligence community. Earlier, the US President also gave the military the freedom to deploy advanced cyber weapons without hindrance.

In short, the vested interests of IP networks have been touting the risk of a “Cyber Pearl Harbor” for years, but they were responsible for the world’s first use of cyber-weapons against a foreign facility. As the initiator of cyber warfare, this genre is not only the most powerful state in cyber warfare but also the state that has launched the most cyber warfare.

• 2. Theory of Non-sovereignty in Cyberspace

Similar as the negating sovereignty theory, the non-sovereignty theory is also one of the important views on the management of cyberspace due to the virtuality of cyberspace. This view holds that cyberspace is a free space for all mankind, and the government and public powers are denied access, thus there will naturally be no issue of national sovereignty. In other words, this view emphasizes individual freedom under rational control, advocates the distinction between individual authority and social authority, and does not restrict individual authority without harming others’ interests. It starts from the liberal theory, adheres to the principle of human rights over sovereignty, and advocates network anarchism. The virtuality of cyberspace provides individuals with the convenience of free use of virtual information resources, and to some extent guarantees that citizens’ freedom of speech and behavior in cyberspace is not subject to external constraints and control.

Although both the negating sovereignty theory and the non-sovereignty theory advocate network freedom, their starting points are different. From the perspective of network autonomy, the theory of non-sovereignty excludes any intervention of public power from government, “to deny all legislation, all power, all privilege, franchise, official and legal influence” [25].

• 3. Theory of Limited Sovereignty in Cyberspace

The theory of limited sovereignty in cyberspace originates from the “theory of limited sovereignty” in the “theory of state sovereignty”. This theory advocates that states should abide by international conventions in exercising sovereignty, and emphasizes that in the process of exercising power, parts of power can be transferred to international organizations and institutions to expand common interests among states. On the other hand, it advocates that a state should give up its limited sovereign interests and gain greater national interests. Professor Yan Xuetong, a scholar of international relations, pointed out that “Sovereignty is a part of the national interest, which can be called the sovereign interest. Sovereign interests are not always aligned with the interests of all states. For example, to enter the WTO, China would have to give up some of its domestic economic decision-making power and economic jurisdiction, just like other member states, but this does not mean giving up national interests” [26]. Therefore, the theory of limited sovereignty in cyberspace advocates that, “the purpose of safeguarding sovereignty is to achieve greater national interests, rather than sovereignty itself. A small amount of national sovereignty may be appropriately limited or ceded to the greater national interest” [27]. The theory of limited sovereignty in cyberspace affirms that all states have network sovereignty. At the same time, it emphasizes the balance and choice between cyber sovereignty and national interests. This theory advocates that sovereign states should give full play to their enthusiasm and initiative, achieve joint governance under international consensus and treaty provisions, and achieve a dialectical unity between absoluteness and relativity under the framework of the United Nations.

• 4. Theory of Complete Sovereignty in Cyberspace

The absolute sovereigntists believe that the existence of a sovereign state is based on absolute sovereignty, and safeguarding sovereignty means protecting its right to survive and develop in the international community; all states must adhere to the basic principles of independence, equality, mutual respect, non-aggression, and non-interference. In the development history of international relations, the theory of state absolute sovereignty plays an important role in protecting the formation, consolidation, and development of European states. It has a certain barrier and protective effect on a majority of Asian, African and Latin American states emerging after the “World War II” to defend sovereignty and safeguard national independence and dignity [27]. The theory of state absolute sovereignty has also been completely transplanted into the cyberspace theory. In the international social order, developing countries are often at a disadvantage, whose national sovereignty is in a state of fragility and insecurity, and they are easy to become the object of interference by some big powers’ network hegemony. Therefore, weak countries generally claim that cyberspace has complete sovereignty, and the international community needs to strictly govern cyberspace, closely monitor domestic information, resist external information, and safeguard national network sovereignty. However, the rapid development and popularization of Internet technology has put increasing pressure on developing countries to “popularize the Internet with an open attitude or continue to maintain the backward status quo” [28].

In short, cyberspace has the characteristics of virtuality, openness, shareability, and vulnerability, which makes national sovereignty easily weakened in cyberspace. But cyberspace is not a “land beyond law”. In any area of sovereignty, observance of the law is a matter of principle. In particular, recent years people have seen the emergence of advanced forms such as cyber terrorism, cyber militarization, and cyber conflicts between states. The international community should actively explore solutions to cyberspace security governance, formulate practical plans, and improve relevant laws and regulations based on equal cooperation. At the same time, cyberspace governance, research of network technologies, and formulation of standards should be actively carried out to ensure that cyberspace has laws to follow.

1.3.2 Exploration and Practice

States have different understandings of network sovereignty, theories, and laws on network. States with strong national strength have more say in the world. Therefore, there are different practical schemes for cyberspace governance at present.

• 1. Construction of Offensive Internet Hegemony

As mentioned in the previous section, people who are vested interests in the current network architecture, advocate the global commonality or attribute of the Internet. The views on politics, primarily the US, pursue Internet freedom, which is fully demonstrated in its diplomatic strategy. In 2015, the US regarded the diplomatic strategy of Internet freedom as a priority project and included it in the International Strategy for Cyberspace, “When the US or its allies are under cyber attacks, the US will use all possible means of violence (diplomatic, economic or even military) to prevent or retaliate” [29]. Alvin Toffler, a world-renowned futurist, pointed out that, “The Rubik’s cube of world politics will be in the hands of people with information power in the future. They will use the rights at their disposal, such as the right to control network and publish information, and take advantage of the strong cultural and linguistic advantages of English to achieve the goal that neither violence nor money can conquer” [30].

In terms of actions, the scheme tries to realize the monitoring of cyberspace on a global scale. In this process, technological advantages will gradually transform into power advantages and help it realize Internet hegemony. To interfere with other regimes and implement cyberspace surveillance on an international scale more conveniently, the common excuse for them is to fight against terrorist forces and promote freedom of expression.

The ultimate goal of them is to achieve network hegemony by monopolizing the international network rulemaking authority. The normal operation of the Internet cannot be separated from the root server and the domain name system. The root server of the existing DNS is in the hands of a few states, who control the distribution of Internet domain names and addresses, and provide legitimacy and compliance for the implementation of the policy of cyber hegemony by manipulating the Internet Corporation for Assigned Names and Numbers (ICANN). The United States is doing its utmost to suppress the interests of emerging Internet countries.

• 2. Construction of a Defensive Cyberspace Security Strategy

Compared with vested interests in the current Internet system, developing countries have relatively weak overall national strength, low level of network technology, and limited voice in cyberspace. They are committed to promoting the modernization of network governance capacity at the national level.

On the theoretical level, with the advent of the network era, these forces realize the importance of cyberspace. To counter hegemonism and consolidate power, they firmly call for network sovereignty and advocate that the international community jointly establish rules and regulations to safeguard cyberspace sovereignty and achieve the common development of the world. Russia, Brazil, and other countries have called for the regulation of the network, respect for the network sovereignty, and safeguard national sovereignty.

In terms of policy, the scheme mentioned above requires a focus on improving network technology and the level of network governance. At present, the vested interests in the Internet can occupy a favorable position because of its strong comprehensive national strength and advanced technology. On the other hand, developing countries are highly dependent on the Internet. If they want to gain equal status in cyberspace, they must strengthen the technological construction. The improvement of cyber governance is also an important way for developing countries to cope with network hegemonic attacks. The developing countries continue to strengthen the network legislation, legislating a code of conduct in cyberspace. According to statistics, more than 90 countries in the world have formulated special cybersecurity protection laws [31], and in the future, more and more developing countries will legislate a code of conduct in cyberspace and maintain cyber security through legalized means.

• 3. International Governance Patterns

It is difficult for a single sovereign state to maintain cyber security and govern cyberspace on its own. It requires extensive participation and in-depth cooperation among all countries. According to the above description, it can be found that neither of the above two cyberspace security strategies can achieve good governance in cyberspace. In this regard, some international organizations and sovereign states put forward the following international governance patterns of cyberspace [32]:

• (1) UN Governance Pattern: as the most authoritative international organization among governments, the United Nations has tried to dominate the international governance of cyberspace, trying to reach an international agreement on network governance. Among them, the UN World Summit on the Information Society has played an important role in the process of international cyber governance, providing a platform for relevant international actors to express their interest demands and playing an active role in promoting the multi-dimensional governance of cyberspace. However, the operation of the United Nations cannot be separated from the financial support of governments, and the coherence of the United Nations policy will be limited to some extent under the condition of being limited by national funds. In 2014, the United States staunchly resisted handing over the control of ICANN to the United Nations. Therefore, the UN governance pattern is difficult to change the monopoly of network resources led by the United States.

• (2) “Multi-stakeholders” Governance Pattern: the Tunis Agenda, adopted by the UN in 2005, for the first time proposed a pattern of “multi-stakeholder” governance. At one time, this pattern was regarded as the best approach to Internet governance, and it provided a more universal innovative pattern of global governance [33]. The “multi-stakeholder” pattern recognizes the limited government management in cyberspace, tries to explore the role of non-governmental organizations, and advocates participatory democratic practice, to determine the forms and rules of the Internet and realize the autonomy of cyberspace. Although this pattern has some effect on accommodating the interests of all parties, it is difficult to practice. The “multi-stakeholder” governance model is uncertain in determining the rights of stakeholders [34], and it is generally questioned whether the participants can achieve diversity and the generation mechanism of representative countries. Therefore, there are still many defects in this pattern in terms of meeting the equity pursued by developing countries.

• (3) State-centered Governance Pattern: the state-centered governance pattern advocates the top-down governance of state functions in cyberspace governance, believing that the government is the main actor in cyberspace governance and should fully crack down on network crimes and maintain cyber security. It enables developing countries to enjoy the same rights as developed countries, avoids conflicts of interests among multi-stakeholder and decentralization of organizations, reduces governance costs, and improves governance efficiency.

1.4 Overview of Network Sovereignty

Taking national sovereignty as a starting point to promote the formulation of the international code of conduct on the Internet is the best choice that conforms to the interests of most states. Confronted with the understanding and practice of network sovereignty, it’s necessary to form the legal countermeasures and suggestions to safeguard international cyberspace sovereignty. It is important to shape a cyberspace governance system that is in line with the development realities of all countries, and protect the voice of international governance in cyberspace, providing the theoretical basis to fight network hegemony of technology power, defend the network sovereignty, govern cyberspace, and participate in the formulation of relevant international rules.

1.4.1 Legal Connotation of Network Sovereignty

Whether a state can exercise jurisdiction in cyberspace is regarded as the first generation of the issue of cyberspace sovereignty, and how a state exercises jurisdiction is regarded as the second generation of the issue. Western scholars thought that the first-generation problem has been solved, and we are facing the second-generation problem now. As mentioned above, the key disagreement in the international community today is how national sovereignty is exercised in cyberspace.

The existence and development of cyberspace is relatively short, and it has developed rapidly with the development of modern information technology and has a more complex and special structure. People’s understanding of cyberspace is still evolving, and the exercise of state sovereignty in cyberspace is also evolving. In combination with the theories of cyberspace, relevant international practices, and the diversified composition of cyberspace, the exercise of state sovereignty in cyberspace should not be generalized but should be analyzed and treated differently in the light of actual conditions.

Firstly, the physical composition of cyberspace is generally considered as network infrastructure. As an artificial space, cyberspace is created by enterprises and individuals from different countries in the real world through various infrastructures such as computers, routers, and servers. These infrastructures are the physical or hardware basis of cyberspace, and they are distributed within the territory of different sovereign states. States have full and exclusive sovereignty over these network infrastructures. Although western countries tend to emphasize sovereign states’ obligations to the network infrastructure, such as surveillance and prevention. They have even pushed the United Nations information security government to adopt a consensus document (A/70/174) containing several responsible norms of state conduct in international space. According to legal analysis, no state can use network facilities to engage or direct, control private to engage in acts that breach of national obligations. It has long been agreed upon in international law. Each state should monitor the personal behavior that someone uses the network infrastructure within the state’s borders to commit illegal acts against other states, but the obligation to do so should be commensurate with their capabilities and should not be unduly strengthened [35].

Secondly, regarding the virtual information in cyberspace, the Internet has become one of the most important carriers of contemporary information transmission and exchange, which determines that the transmission and storage of massive information is one of the core functions of cyberspace. Due to the global nature of cyberspace and the reproducibility of data, the storage and transmission of data across borders is a common phenomenon, which is also one of the key differences between cyberspace and traditional physical space. Whether a country can exercise jurisdiction over data in cyberspace is a complex and critical issue.

In short, a state’s network sovereignty includes both the sovereignty over its physical network infrastructure and the sovereignty over intangible network information and data. In terms of specific regulations, the flag state system of the law of the sea can be used for reference to solve the problems between them.

The international discussion on how to exercise state sovereignty in cyberspace is becoming regularized and concrete. For example, on February 2, 2017, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, published by the NATO Cooperative Cyber Defense Centre of Excellence (CCDCOE), expounded the network sovereignty and the jurisdiction and prudential obligations related to it (Fig. 1.10).

Fig. 1.10

Front cover of the Tallinn Manual 2.0 [36]

1.4.2 Layers of Network Sovereignty

In the past, the focus of network sovereignty has often been on the evolution and extensibility of sovereignty. However, it has become an indisputable fact that cyberspace, as the fifth frontier, is an important battlefield for all states. Different states have different demands for cyber security, and their terms of network sovereignty are also different. The international community should respect and understand the different views of states. Huang Zhixiong, an expert on International law in China, puts forward a three-layer framework for analyzing network sovereignty, which is used to find the applicable domain before exclusivity and alienation [9].

• 1. Bottom Layer

The bottom layer is the physical layer, which includes a variety of network infrastructures. On this level, international standardization and global connectivity should be pursued. To solve the digital divide, countries need to make collective transfers and developed countries export their results to developing countries.

• 2. Middle Layer

The middle layer is the application layer, which includes many applications of the Internet in real life, and reflects human activities in science and technology, culture, economy, trade, and life. At this layer, the influence of network sovereignty should be more tailored to local conditions, dynamic, peaceful, multilateral co-governance, and achieve a balance between freedom and order.

• 3. Top Layer

The top layer is the core layer includes politics, laws, political security, and ideology, which is related to the foundation of governance. It is the core interest of a state and cannot be challenged. Cyber security should not be used as an excuse to duplicate the division of forces between the enemy and ourselves in the traditional space. All Civilizations, cultures, and states should respect each other and coexist peacefully. As Chinese leader Xi Jinping said in his speech at UNESCO headquarters in 2014, “exchanges among civilizations should not be premised on the superiority or derogation of one civilization”.

In a word, in the middle layer and bottom layer of the triangular framework, network sovereignty can be transferred to some extent, while at the top layer, the dominant role of the government is reflected.

1.4.3 Role of Network Sovereignty in Each Stage

China’s view of network sovereignty expresses China’s position on international relations in the real world. It does not make any explanation beyond the traditional concept of sovereignty. China emphasizes the sovereignty over cyberspace and has a very clear understanding of its stage of development and the historical mission of the government.

At the opening ceremony of the second World Internet Conference (WIC, Wuzhen, China), Chinese President Xi Jinping declared, “Our goal is to make the achievements of Internet development benefit more than 1.3 billion Chinese people and the people of other countries”. And he proposed that the development of the Internet in China must be guided by the vision of people-centered development, and mentioned network sovereignty when discussing the relationship between security and development in an important speech on April 19.

Therefore, national development should be regarded as the top priority, and network sovereignty is to serve national development. The state should advocate network sovereignty, ensure that each state can independently formulate policies and plans suitable for their development according to the national conditions at home, strive for equal participation in Internet governance, and make the cyberspace order more just and equitable.

In short, the sovereignty network, including data, should undertake the objectives of promoting national development and national security.

1.5 Necessity of Advocating Network Sovereignty

Under the background of information revolution and globalization, network sovereignty is derived from political sovereignty, economic sovereignty and cultural sovereignty in the formation process of information society and new information concepts represented by the Internet and global electronic communication network. It’s a part of modern national sovereignty. Although intercommunication and virtualization are typical characteristics of cyberspace, the reality of its foundation, including the carrier of information, content, and facilities for information transmission, determines that cyberspace is by no means a “land beyond the law” excluding state sovereignty and cannot be allowed to develop indefinitely.

1.5.1 Necessity of Dividing Information Sovereignty

The term “information” was proposed and used as a scientific term dating back to 1928 when L. R. V. Hartley distinguished between “message” and “information” in his essay Transmission of Information. The carrier of information is various, such as signal, intelligence, data, material, knowledge, symbol, and so on. In the legal sense, information as a form of resource is not only a description of the information in the physical world but also a concrete and describable existence, which is a symbol system that satisfies certain conditions. Its concerns are the issues that whether the information content is legal, whether the methods of information production, acquisition, and dissemination are legal, what legal responsibilities should be borne for illegal production, acquisition, and dissemination of information, and how to bear the legal responsibilities.

The core of Internet application is information interchange. Through the application of communication technology, the instantaneous output and transmission of information can be achieved. Everything in the world can be calculated, measured, recorded, and analyzed in the form of data, and then shared around the world. There are complex interest relationships among states in the world. In traditional international law, based on territorial sovereignty, a state has supreme sovereignty over all persons, objects, affairs, and acts within its territory, including the flow of information. Therefore, there is no doubt that human beings have national boundaries when using communication technology to acquire and disseminate resources, especially the content of resources must comply with the legal provisions of sovereign states.

The international community has reached a consensus on the protection of personal privacy and intellectual property rights in the field of online information dissemination, as well as the supervision of matters involving drugs, violence, pornography, and endangering national security. This also proves that although information is a virtual data existence, its content is related to all aspects of a state’s economy, politics and culture, and the guarantee of information security affects the state’s security and citizens’ rights. However, the Internet has greatly weakened the state’s control over the dissemination of information and the behavior of individuals within its territory. Network attacks also threaten national network infrastructure and vital information systems, which need protection by the military. If the network sovereignty is abandoned and the state sovereignty that exists above it is not recognized, it is a denial of the existence of information sovereignty and a rejection of sovereignty independence and equal protection of sovereignty in legal values.

1.5.2 Necessity of Network Territory

In the traditional information field, such as newspapers, books, radio, and television, the state can play a role in the control. However, in the Internet world, the contradiction between the regionalism of state sovereignty and the transboundary nature of the network is a difficult problem for the state to control the spread of Internet information.

Cyberspace exists virtualized in life based on the data carrier. There is no doubt that its content and the source or means of data transmission are of practical significance. More and more people present their identity, behavior, property, and interests in cyberspace. An increasing number of financial payments and international trade is carried out through online platforms. The real space and cyberspace show a trend of gradual fusion. At the same time, people’s geographical location and space environment are dependent on the territory and jurisdiction of the state. In a word, the cyberspace cannot become an out-of-reality existence.

The network brings enormous convenience to people’s production and life. However, there have also been illegal acts such as hacker attacks, network viruses, and so on. Some people use the Internet to engage in acts that breach of international law, such as human trafficking, drug trafficking, and arms trading. Besides, some people take advantage of the convenience and difficulty in monitoring the Internet to commit crimes. These dilemmas affect the state’s economic, political, and cultural security. If the security of cyberspace cannot be guaranteed, it will be difficult to solve complex network disputes, and the security of states and citizens will be threatened for a long time, which is not conducive to the development of information technology.

Cyberspace has become the state’s fifth frontier, besides the four frontiers of land, sea, sky, and space. The security of cyberspace affects and determines the security of other territories to a certain degree. Strengthening the concept of network sovereignty enables the government, in the position of safeguarding national sovereignty, and have the right to establish national information security in the network boundary and to review the information exported and imported.

1.5.3 Necessity of Making Rules Under the Law

Information technology was invented by human beings. Code can control the identity, time, place of using the network. Input different code will output different results, which determining the difference of network activities. Therefore, controllability is one of the foundations of Internet architecture. The Internet needs certain operating rules to guarantee its basic functions, such as authentication, compatibility, interconnection, and so on. From the operating rules of the Internet, we can also see the controllability of the cyberspace. Cyberspace involves technological, political, economic, cultural, and other factors, so rules need to be formulated.

The national legal system has great significance to the adjustment of network behavior, but there are also many limitations. Especially, when virtual space carries real legal relations, the characteristics of the Internet bring a series of difficulties for the implementation and application of laws, and the feasibility and legitimacy of traditional region-based laws are challenged. Therefore, the concept of network sovereignty makes it easy to legislate in cyberspace and provides theoretical support for the application of existing laws in cyberspace.

The world of code cannot be separated from legal regulation. Legal governance should be combined with technical governance. Legal governance takes precedence over technical governance, and technical governance should not break through the framework of legal governance. There have been a lot of precedents to prove the significance of formulating network rules under the law. For example, the Virginia Court of the United States ruled that cnnews.com, a domain name registered by Shanghai Meiya Company, violated the trademark right of CNN. When the court decided to suspend the domain name, it indicated that the government had already intervened in the governance of cyberspace. At the same time, because of the controllability of the network, it is possible to control the behaviors related to the national interests, to achieve the purpose of protecting the security of the national cyberspace. Besides, some cases, such as Germany’s filtering requirement on the dissemination of illegal information on the Internet and Singapore’s cracking down on extremist statements through the Internet model, prove the controllability of cyberspace and demonstrate the necessity of formulating rules under the law. From the perspective of safeguarding national security and maintaining world peace and security, it is necessary to regulate cyberspace appropriately at the national level and recognize the existence of network sovereignty.