THE INTERNATIONAL LEGAL REGIME ON STATES’ INTERACTION IN CYBER SPACE BY VICTOR ONYEKACHUKWU OJEAH LAW 1106382 FACULTY OF LAW UNIVERSITY OF BENIN BENIN CITY JULY, 2016. THE INTERNATIONAL LEGAL REGIME ON STATES’ INTERACTION IN CYBER SPACE BY VICTOR ONYEKACHUKWU OJEAH LAW 1106382 A LONG ESSAY WRITTEN AND SUBMITTED TO THE FACULTY OF LAW, IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE AWARD OF THE DEGREE OF BACHELOR OF LAWS (LL.B) OF THE UNIVERSITY OF BENIN, BENIN CITY. JULY, 2016. ii CERTIFICATION I, Victor Onyekachukwu Ojeah, with Mat. No.: LAW1106382, do herby certify that apart from the references which have been made to other persons’ work which have been acknowledged, the entire work is the product of my personal research and that the project has neither in whole nor in part, been presented for another degree elsewhere. __________________________ __________________ VICTOR ONYEKACHUKWU OJEAH DATE (STUDENT) iii APPROVAL We certify that this project was written and completed by Victor Onyekachukwu Ojeah with Mat. No.: LAW1106382, in partial fulfillment of the requirements for the award of the bachelor of laws (LL.B) degree. _________________________ ___________________ DR.G.L UMORU DATE (PROJECT SUPERVISOR) _________________________ ___________________ DR. A.O. EWERE DATE (PROJECT CO-ORDINATOR) _________________________ ___________________ PROF. N. A. INEGBEDION, Ph.D DATE (DEAN, FACULTY OF LAW) iv DEDICATION This work is dedicated to my parents Mr. & Mrs. Michael Ojeah, who are my spot-on inspiration for success. v ACKNOWLEDGMENT I have a few persons to thank for their various roles in my life. Putting this work together is only a partial fulfilment of something that began some four years ago. These people have stood out in facilitating this half a decade pursuit for me. I start by pouring my adoration to my beloved mummy and daddy. Their support, belief, care and overt affection for me marvels me, sometimes I wonder, how can a mortal love me this much? I cannot fully appreciate them without pausing for a moment to celebrate their maker, my God; Jesus Christ. Thank you for you hear me always, and give prompt responses. Always! During my sojourn in this University, I have had the advantage of relating with different people on different platforms. Can I say a big thank you to every person I have worked with on a team for national, regional and international competitions. I sincerely appreciate my friend, brother and team mate Tami Koroye, I thank Divine Atsegbua “my sklon sklo”, ‘Mr. Success’ and Nonso Anyasi, my brother, for going through the Jessup 2016 experience with me (being my very last competition in the University). I also appreciate all officers of the Jural court from 2015 to 2016. I am moved to mention Aziengbe J, for being a remarkable ‘brother’. Someone I can always call on, my best friend; Rehoboth Juwah, thanks for being a standby and a true friend, I love you, you are indeed the best! My kid brother Joshua Ojeah deserves mention also, I just love you with all my heart, thanks for always being there for me. To Stephen and Helen (Tikech) Ojeah my elder ones, when I remember you are family, I smile in most profound satisfaction, I am favoured to have you. For leadership skills and endurance, I have the leadership structure of Christian Fellowship International to thank for initiating that in me. I cannot escape irrationality if I don’t address the true purpose of this segment. International law is for me, more than a flair, in coming up with the idea behind this project, I am expectedly indebted to the International Law Students’ Association (ILSA) for fanning the embers of my vi love for this area of law. I am particularly beholden to the 2016 Jessup for arousing in me, the teething and contemporary issue of the activities of States in cyberspace. Most of the materials and texts used in this project were those supplied by ILSA for the Jessup 2016 competition, to the entire team at Washington, Merci Beacoup! Importantly also, I am heavily in the debt of Katharina Ziolkowski, Marco Roscini and Michael N. Schmitt. Their books have not only inspired this work, but has also massively contributed to it. May I add that some lecturers deserve particular and palpable mention for their indelible roles in my life? To Dr. Godwin L. Umoru, my project supervisor, I am ceaselessly grateful for your fatherly caution, your accommodation, skill and expertise in legal research, all these put together have inspired me to work harder. I am appreciably indebted to Dr. Gabriel Arishe, my father, thank you for your love in all of its various shades. Dr. Mobolaji Ezekiel, your motherly role and affection for me inspires me to be better, thank you. Barr Alero Fenemigho and Barr Keseme Odudu, my coaches inter alia, I am grateful for your concern and support for me. I am also in due of the Adeloye family for accepting and outfitting me even without really knowing me. Aunty B and Uncle D, I love you, “golly”! A few of my friends deserve appreciation in clear mention; Ikoli Blessing, George Oneze Jnr, Nosa Garrick, Raymond Ijeomah, Precious Kunu, Nosakhare Okungaye, Joy Nicholas, Mercy Oluwafemi, Joy Jindu, Harrison Enoghayin, Chiamaka Nwokedi, Nkechukwu Otike-Odibi, Jones Ogan, Edosomwan Ann, Eyituoyo Sakpa, Collins Arikor, Heritage Imoyera, BeccaRoy… Oops! I love you all. For printing and putting this work together in a fathomable state, I am obligated to Joy, thank you! vii TABLE OF CONTENT Title page - - - - - - - - - ii Certification - - - - - - - - - iii Approval - - - - - - - - - iv Dedication - - - - - - - - - v Acknowledgement - - - - - - - - vi Table of Content - - - - - - - viii Table of Cases - - - - - - - - xi Table of Statutes - - - - - - - - xii Table of Treaties and other International Instruments - - - xiv Table of Abbreviation - - - - - - - xvi Abstract - - - - - - - - - xviii CHAPTER ONE : General Introduction 1.0 Introduction - - - - - - - 1 1.1 Definition of Cyberspace Operations - - - - - 2 1.1.1 Distinction between Cyberspace and Outer Space - - - 4 1.1.2 Terms Frequently Associated with Cyber Operations - - 6 1.2 Historical Background of Cyberspace - - - 11 1.3 Technical Methods, Techniques and Tools in Cyberspace Operations - - - - - - 12 1.4 Effects of Cyber Operations - - - - - 23 Conclusion - - - - - - - 26 CHAPTER TWO: Applicability of General Principles of International Law to Cyberspace 2.0 Introduction - - - - - - - 27 2.1 Nature of the General Principles of International Law - - 28 2.2 Source and Content of the General Principles of International Law - - - - - - - 30 2.3 Relationship to Practice, Opinio Iuris and Consent of States - - - - - - - - 37 2.4 Higher ‘Normative Value’ - - - - - - 40 2.5 Relationship to the Concept of Fundamental Rights and Duties of States - - - - - - - 43 2.6 Instrument of Progressive Law Development - - - 46 viii Conclusion - - - - - - - - 48 CHAPTER THREE: Rights and Obligation of States in Cyber Space: Specific Applicable Laws and General Principles of International Law 3.0 Introduction - - - - - - - - 50 3.1 Sovereign Equality of States and Corollary Principles - - - 51 3.1.1 Self-Preservation - - - - - - - 53 3.1.2 Territorial Sovereignty and Jurisdiction - - - - 58 3.1.3 Non-intervention in Domestic Affairs - - - - - 60 3.1.4 Duty Not to Harm Rights of Other States (Principle of Prevention, Precaution and ‘Due Diligence’) - - - - - 62 3.1.5 Principle of Good Neighbourliness and sic utere tuo - - - 68 3.2 International Telecommunications Law and the Regulations of Cyber Space 70 3.3 Space Law and Cyber Activities - - - - - - 72 3.4 International Economic Law in the Cyber Arena - - - 73 3.5 Maintenance of international peace and security - - - - 80 3.5.1. Refrain from Threat or Use of Force in International Relations - 81 3.5.2. Peaceful Settlement of Disputes - - - - - 83 3.6 Cooperation and solidarity - - - - - - 84 Conclusion - - - - - - - - 87 CHAPTER FOUR: Proving State Responsibility for Cyber Operations 4.0 Introduction: State responsibility for cyber operations - - - 89 4.1 The International Law of Evidence - - - - - 93 4.2 Burden of Proof and Cyber Operations - - - - - 97 4.3 Standard of Proof and Cyber Operations - - - - - 103 4.4 Methods of Proof and Cyber Operations - - - - - 107 4.4.1 Documentary Evidence - - - - - - - 108 4.4.2 Official Statements - - - - - - - 113 4.4.3 Witness Testimony - - - - - - - 113 4.4.4 Enquiry and Experts - - - - - - - 114 4.4.5 Digital Evidence - - - - - - - 115 ix 4.5 Presumptions and inferences in the cyber context - - - 116 4.6 Inadmissible evidence - - - - - - - 118 Conclusion - - - - - - - - 120 CHAPTER FIVE 5.1 Summary - - - - - - - - 122 5.2 Findings - - - - - - - - 124 5.3 Recommendations - - - - - - - 129 x TABLE OF CASES Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion (1988) ICJ Rep 12 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), Judgment, 2007 I.C.J Rep 43 Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), Judgment, 2005 I.C.J Rep 168 Asylum Case (Colombia v. Perú), Judgment, 1950 I.C.J Rep 266 Avena and Other Mexican Nationals (Mex. v. U.S.), Judgment, 2004 I.C.J Rep 12 Barcelona Traction, Light and Power Company, Limited. (Belg. v. Spain), 1964 I.C.J Rep 6 Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment (1984) ICJ Rep 246 Case Concerning Land and Maritime Boundary between