Abstract
The chapter examines the concept of self-defense in international law and cyber operations, focusing on when a cyber operation escalates to a cyber-attack and justifying a state's right to self-defense. The severity of a cyber operation is crucial, as it distinguishes between operations causing significant harm and those causing only economic damage. The chapter also explores the complexities surrounding the involvement of non-state actors in cyber operations, suggesting the ‘unwilling or unable' doctrine for defensive actions against non-state actors. The legitimacy of self-defense is based on the necessity of the response as a last resort and its proportionality to the threat faced.
TopMethodology
This chapter explores public international law, focusing on legal positivism and how legislation is formed and interpreted about its sources. Legal positivism emphasizes the formal position of a rule within a legal system as its legitimacy, rather than extrinsic elements like morality, and focuses on comprehending the law as it currently stands (lex lata). National legal systems and public international law are very different. It doesn’t have a gold standard that establishes a hierarchy for its sources. Rather, the relevant sources fall under the purview of several international courts and tribunals. This can make figuring out the law difficult. The most authoritative source on these sources is the Statute of the International Court of Justice (ICJ Statute), specifically Article 38(1), which regards international treaties and customs as primary and general principles, judicial decisions, and doctrines as secondary or subsidiary.
After that, the chapter discusses how the term “armed attack” is defined in international law, beginning with Article 51 of the UN Charter. A nuanced understanding of the term “armed attack” requires a review of case law and doctrine because the Charter does not provide a full description of the term. However, this article acknowledges that interpretations may differ depending on the sources examined and their relative weighting. Instead, it aims to analyze how this term pertains to cyber operations rather than provide a definition. Regarding cyberattacks, there are difficulties because there isn’t a common definition in international law, and there aren’t any pertinent court cases. In this case, the chapter mostly relies on doctrine, especially the Tallinn Manuals, which are important sources of international law about cyberspace, even if they are not primary sources. These Manuals restate current rules that apply to cyber warfare and were created by international legal professionals. While admitting the risks of relying on subsidiary sources for defining lex lata, the chapter uses the more recent Tallinn Manual 2.0, using a ‘lex posterior’ approach where newer laws take precedence in case of conflicts.
Key Terms in this Chapter
Self-Defense: Self-defense in international law is the right of a state to use appropriate force to defend itself against an armed attack. It's contingent on the principles of necessity (as a last resort) and proportionality (response commensurate with the threat).
Cyber Operations: These refer to the range of activities conducted through cyberspace, often involving computers, networks, and the internet. Cyber operations can range from benign activities to hostile ones like cyberattacks and espionage.
Non-State Actors: These are individuals or groups that are not affiliated with any national government. In cyber operations, they can play significant roles, ranging from independent hackers to groups indirectly supported by states.
Proportionality: This is a principle in international law, particularly in self-defense, where the response to an attack must be proportionate to the threat posed. It aims to prevent excessive or unnecessary use of force.
Armed Attack: In the context of international law, an armed attack is a severe form of aggression that justifies a state's right to self-defense. It usually implies a significant level of violence or force, beyond mere political or economic coercion.