In two recent cases before the Court of Justice of the European Union (CJEU), the General Court (at first instance), the High Court of Justice of England and Wales and the Grand Chamber of the CJEU found that a trade agreement and a fisheries agreement between Morocco and the European Union cannot be applied to occupied Western Sahara without the consent of its people. In spite of the fact that it is the general view that Western Sahara is under belligerent occupation, none of the three courts invoked the law of occupation but based themselves instead on the principle of self-determination and the law governing the administration of non-self-governing territories, including the principle of permanent sovereignty over natural resources. A possible implication of these judgments is that that law and the law of occupation are converging in certain respects, in particular as regards long-term occupation. This pertains not only to the substantive rules on the exercise of authority, which seem to require that the people are heard, but also to the basis for the establishment of that authority, namely bare control.

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This essay will discuss how intrusive (hacking) cyber espionage in peacetime is legally justified, in particular by some US defense sources. In their reading, "cyberspace" has become a virtual "space" of exception from the usual peacetime rules of respect for sovereignty. Given the ubiquitous and interlinked nature of "cyberspace", exceptions previously applicable only in war or in other hostile relations, have now de facto become the rule, and states have sought ways to rationalise and justify that, without openly flouting the established categories of war, peace and sovereignty. In the US, this has occurred through a very limited conception of sovereignty (sovereignty as a non-binding principle). This leaves much of "cyberspace" in a legal no-mansland, or more adequately, a free-for-all-land, in which states can search and manipulate data on computers in foreign states without much legal consequence. This very limited conception of territorial sovereignty is related to the metaphorical spatialalisation of the Internet as a new "domain", a "cyberspace", rather than as a network of hardware located in interlinked but still separate national jurisdictions.