North Carolina Journal of International Law

Volume 43

Symposium Print Preview: Professor Nicolas Jupillat on Cyber Espionage

By: Haley Mcloud

Professor Nicolas Jupillat teaches International Law of Cyberspace at the Detroit Mercy School of Law.[1] He received his Masters in Geopolitics from Sorbonne University (Paris I) and Ecole Normale Supérieure de Paris in 2013, and his Masters in Public Law from Université d’Auvergne and The Hague University in 2010.[2] He currently studies legal challenges from technological developments in international conflicts.[3] As a speaker at the North Carolina Journal of International Law 2016 Symposium on Cyber Warfare and International Law, Professor Jupillat gave a presentation on “Mass-Scale Extraterritorial Surveillance under International Law,” based on his paper, From the Cuckoo’s Egg to Global Surveillance: How Cyber Espionage Becomes a Violation of the Non-Intervention Principle.[4]

Professor Nicolas Jupillat

Professor Nicolas Jupillat

Professor Jupillat began his presentation by describing the context of cyber espionage from its first know occurrence: the 1986 Cuckoo’s Egg incident.[5] The Cuckoo’s Egg incident was a cyber intrusion to gain military intelligence from the Lawrence Berkeley National Laboratory in California, and the hacker was traced back to Germany and eventually associated with the KGB.[6]  Today, this type of cyber espionage is synonymous with cyberwarfare, and in our increasingly cyber-connect world, it has far-reaching implications for national security and sovereignty.

Professor Jupillat’s paper builds upon the notion that cyber espionage that rises to the level of international intervention should be unlawful.[7] The right of international intervention stems from humanitarian abuses.[8] But in other cases, when one nation forcibly deprives another nation of its control and sovereignty for reasons other than humanitarian issues, international intervention is unlawful. Professor Jupillat explained that generally, this definition of unlawful intervention is very broad. One instance where intervention could be considered unlawful in the global context is cyber espionage. While there is no explicit legal prohibition against espionage, Professor Jupillat argued that, when cyber espionage reaches the threshold of intervention, it should be sanctioned.[9] Espionage is in a gray area: while it is not illegal under international law, no nation sees acts of espionage against itself as acceptable. Furthermore, because countries do not protest when spies are caught and charged by target nations, they concede that espionage is not completely guiltless.

Professor Jupillat noted that the internet is far from being ungovernable or uncontrollable by state action. Nations need to reaffirm sovereignty in cyberspace to maintain a unified global internet. Without this, countries will develop their own systems and networks, which will degrade the international internet community.  National cyberspace sovereignty is also important to fight against the erosion of privacy and to ensure a fruitful democratic society. Democracy and sovereignty are interlinked and without sovereignty in cyberspace, democracy will be threatened.

Finally, Professor Jupillat concluded his presentation by reiterating that cyber espionage is currently neither legal nor illegal; it is in an ambiguous area where nations can set a symbolic example and choose to denounce it, particularly if it intervenes with another nation’s sovereignty, or stay silent and go along with the status quo. He advocates that polices of espionage and policies of intervention should be combined to set a standard where cyber espionage, when reaching the level of national intervention, be impermissible and unlawful in order to maintain state sovereignty over the internet.

[1] Jupillat, Nicolas, Detroit Mercy L., [] (last visited Nov. 15, 2016).

[2] Id.

[3] Id.

[4] Nicolas Jupillat, From the Cuckoo’s Egg to Global Surveillance: How Cyber Espionage Becomes a Violation of the Non-Intervention Principle, (Working Paper, 2016) [hereinafter How Cyber Espionage Becomes a Violation]

[5] See generally Clifford Stoll, The Cuckoo’s Egg (1989) (This book is a first-person account of tracking the person who hacked the computer at the Lawrence Berkeley National Laboratory).

[6] Id.

[7] How Cyber Espionage Becomes a Violation, supra note iv.

[8] Humanitarian Intervention?, Global Policyy Forum, [] (last visited Nov. 15, 2016).

[9] How Cyber Espionage Becomes a Violation, supra note iv.

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