نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشجوی دکتری حقوق بینالملل، دانشکده حقوق و علوم سیاسی، دانشگاه تهران، تهران، ایران.
2 استاد گروه حقوق، دانشکده علوم انسانی، دانشگاه بوعلی سینا، همدان، ایران.
کلیدواژهها
عنوان مقاله English
نویسندگان English
1. Introduction
States, like individuals, do not exist in isolation; rather, they necessarily interact with one another. A state’s geographical position requires it to maintain certain relations with neighboring states and different kinds of relations with others. One of the oldest expressions of friendly relations is diplomacy. Through diplomatic and consular relations, states generally conduct their foreign affairs. In other words, these relations reflect and embody the foreign policy and external relations of international legal entities (i.e., states).
The Internet has become an essential tool for diplomatic negotiations and communication with a wide range of stakeholders. Nevertheless, the absence of treaty law and customary international law in the cyber domain is readily apparent. Still, a few attempts have been made to fill this gap. For example, the 2001 Budapest Convention on Cybercrime—concluded within the framework of the Council of Europe and its Additional Protocol—addresses only individual crimes. Perhaps the only relevant reference is the Tallinn Manuals, prepared in 2013 and 2017 by a group of international experts under NATO auspices
The absence of specific rules does not mean that states may conduct cyber operations without legal constraint. Although existing treaty laws and customary international law do not explicitly regulate cyber operations, established methods of legal interpretation make it possible to extend existing rules to this domain. This approach has been accepted by international organizations such as the United Nations and the European Union, as well as by a number of states, including the United States, Iran, the United Kingdom, Russia, Italy, Australia, China, the Netherlands, Qatar, Cuba, Hungary, and Mali.
The Tallinn Manual 2.0 is widely regarded as the most authoritative and frequently cited work on the international law applicable to cyber operations. Given the normative gap and the absence of uniform state practice, the Manual provides a comprehensive analysis of how existing international rules and regulations may be adapted to the complex and evolving domain of cyberspace. It also offers valuable insight into the views of legal and technical experts regarding how states engaged in cyber operations should conduct themselves.
Considering the rules and interpretations of Tallinn Manual 2.0, the present study aimed to examine the international law governing diplomatic and consular relations as it applies to state conduct in cyberspace.
2. Literature Review
Given the novelty of the topic, no research in Iran has yet examined the international law governing diplomatic and consular relations as it applies to state conduct in cyberspace. This distinguishes the present article in terms of its timeliness, theoretical framework, and analytical focus.
3. Materials and Methods
This study adopted a descriptive–analytical approach and drew on library sources to examine the positions advanced in the Tallinn Manual 2.0 in light of both general international law and the specific body of international law governing diplomatic and consular relations as applied to cyber operations. Accordingly, the study relied not only on the Tallinn Manual 2.0, but also on the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations, since diplomatic and consular law is grounded primarily in these two conventions. The international group of experts involved in the preparation of the Tallinn Manual 2.0 also agreed that these conventions largely reflect customary international law.
4. Results and Discussion
The analysis first addressed the basic definitions and concepts relating to cyberspace and to diplomatic and consular law. Then it focused on the conditions and requirements governing cyber operations within the framework of diplomatic and consular law. Communication is vital to diplomacy. The nature of the Internet has made it an indispensable tool for communication in the modern age and has given rise to what may be called internet diplomacy. Other factors contributing to this transformation include widespread access to telecommunications networks and the low cost of telecommunications equipment, both of which have expanded the capacity of many states to engage in internet diplomacy.
In this new environment, traditional diplomacy must evolve through the reinterpretation of existing rules, and where those rules prove inadequate or incomplete, new ones must be developed. First, diplomatic and consular missions enjoy the inviolability of their premises under customary international law, as codified in the Vienna Conventions on Diplomatic and Consular Relations. Mission premises are inviolable, and officials of the receiving state may not enter them without the consent of the head of mission.
Moreover, any property within the mission—including information and communication technology (ICT) infrastructure—is immune from search, seizure, confiscation, and the enforcement of judicial orders. This means that even remote access to ICT infrastructure located within the mission, without explicit consent, is prohibited. In addition, the mission’s archives, documents, and official communications are inviolable, even in electronic form and regardless of their location. The receiving state is also obligated to ensure the mission’s freedom of communication for all official purposes. All persons enjoying privileges and immunities are under an obligation to respect the laws and regulations of the receiving state and to refrain from interfering in its internal affairs.
Moreover, the premises of the mission must not be used in any manner incompatible with the functions of the mission, with general international law, or with any special agreement in force between the sending and receiving states.
In the cyber context, this means that persons enjoying privileges and immunities must not engage in unlawful surveillance or espionage in the receiving state, and mission premises must not be used for such purposes. Correspondingly, the receiving state is required to take all appropriate measures to protect the mission against intrusion or damage and to prevent any disturbance of the mission’s peace or impairment of its dignity. Therefore, if a state becomes aware of malicious cyber activity targeting a diplomatic or consular mission within its territory, it must take all appropriate measures to protect the mission against that activity.
5. Conclusion
Cyberspace is continuously evolving, and with its high growth potential, any number of future developments are conceivable. Cyber diplomacy has now become an integral part of the daily life of diplomats and consuls. However, the absence of treaty instruments and customary international law in the cyber domain is very evident. Consequently, cyber operations in cyberspace pose questions and challenges for diplomatic and consular law. In this new environment, traditional diplomatic and consular law must evolve through the reinterpretation of existing rules. Where certain rules prove insufficient or incomplete in regulating internet diplomacy, new rules must be established. International rules concerning the inviolability of premises, the immunity of documents and archives, the freedom of official communication, tax exemptions, and immunity from jurisdiction must be reinterpreted and applied in a manner consistent with the cyber-diplomatic environment. Moreover, new rules should be formulated to guarantee the immunity of the cyber diplomatic or consular bag.
کلیدواژهها English
