Leila Safieddine is a Senior in the College of Arts and Sciences majoring in Government and Economics.
In an era where technological innovation, military might, and political prowess are becoming synonymous, cyberspace regulations have become the vanguard of legal discourse. Even with the benefits of digital uses, the very nature of cyberspace, imbued with convolution and rapid transformation, has presented unprecedented challenges to the existing corpus of international law.
Even with these challenges, many have tried to answer the question of whetherinternational law applies to the cyber world. However, the world has been quite ambiguous in answering how it applies. In the 2013 Consensus Report, twenty United Nations member states, including the United States of America, Russia, and China, agreed that the current body of international law applies to the cyber world.[i] It follows that the rights and duties accorded to states in the world also exist in the digital one. In the Tallinn Manual of 2017, legal scholars and government experts sought to determine when, how, and under what conditions states should comply with their international legal obligations in cyberspace.[ii]However, silences remain regarding how the norms and values governing the existing legal framework, particularly those related to using force (jus ad bellum) and conducting hostilities (jus in bello) to cyber activities.
Departing from the idea that a reformed legal framework is needed, the prevailing consensus in the field maintains that existing international law effectively proscribes state behaviors. However, the cyber and real world render established laws inadequate in addressing the intricacies of cyber activities. Thus, there is a need to develop a new framework for addressing the complex issues posed by cyber operations and digital attacks.
State sovereignty, enshrined in Article 2(4) of the United Nations (UN) Charter and international law, asserts states’ authority over their territory.[iii] Thus, the threat or use of force against any state’s territorial or political independence is prohibited. But by its very nature, cyberspace is decentralized and lacks jurisdictional boundaries, blurring the line between offline and online spaces. The need for clear boundaries makes determining jurisdiction complex, particularly in cases involving transnational or non-state actors. In this view, territorial integrity embedded in the principle of sovereignty is undermined.
Another core tenet of international law in both coercive and deterrent lines of attack is attribution. Cyber-attacks will become more complex in the future, and the difficulty in attributing actors or states undermines existing rules. Unlike conventional warfare, cyber-attacks on governments can be anonymous. Due to imprecise identities in the digital world, holding cyber attacks accountable has become complicated.
The threshold for determining peace breaches and invoking self-defense in cyberwarfare cases also remains unclear. Without clear attribution, states in armed attack events–outlined in the UN Charter’s Article 51– become more challenging to implore.[iv] Even worse, an unclear digital force in scale to physical force renders current laws void.
The lack of cyber use standards and different capabilities also challenge proportionate responses. Cyber targeting blurs the line between military and civilian territories. Without clear guidelines tailored for the online sphere, complying with the laws while considering holistic factors becomes hard for states and other bodies.
In conclusion, evolving technology has transformed cyberspace into a critical domain. However, cyber activities present challenges for applying existing international legal devices. From identifying breaches to enforcing laws, navigating cyberspace’s rules requires an overhaul of the current laws. By addressing the changes in the meaning of legal principles, prioritizing cooperating acts governments, and crafting a distinct body of law to address the disparities between cyber and conventional activities, the world can better address the complex legal challenges posed by cyberspace.
[i] United Nations, General Assembly, Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security, U.N. Doc. A/68/98 (June 24, 2013).
[ii] Michael N. Schmitt, ed., Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (2nd ed. 2017).
[iii] United Nations, Charter of the United Nations, art. 2, para. 4, 24 October 1945, 1 U.N.T.S. XVI.
[iv] United Nations, Charter of the United Nations, art. 51, 24 October 1945, 1 U.N.T.S. XVI.
