PROHIBITION AGAINST THE USE OF FORCE AND THE COERCIVE USES OF THE CYBERSPACE

Year 2017, Volume: 13 Issue: 1, 60 - 72, 28.04.2017

Hakan Selim Canca

Abstract

The use of
force is resorted by States as a form of dispute settlement generally as a last
resort. But Article 2(3) of the United Nations (UN) Charter states that all
members shall settle their international disputes by peaceful means. Article
2(4) bans the unilateral use or threat of force by States. In the customary
international law, Article 2(4) is interpreted as a prohibition against the use
of force focusing on restricting the use of military instruments. This
instrument-based interpretation of the use of force causes the responsibility
of States which deploys cyber instruments to cause physical damage in the
target States’ critical infrastructures, remain outside the scope of Article
2(4). 

There are
doctrinal difficulties in examining current international law on use of force
and self-defense in cyberspace, while the legal frameworks for defining the
parameters of operations in cyberspace are not clear. As being unforseen until
this age of information and cyber technology, the prohibition of the use of
force interpreted from Article 2(4) should be evolved to cover coercive uses of
cyber instruments being used to have destructive effects in the enemy’s
physical infrastructures such as telecommunications, transportation, power
systems, finance and emergency services. 

Categorizing
the cyber attacks as having physical effects to critical infrastructure and not
having any physical effects can be the first step to solve the problem of
evolving the article to cover cyber attacks within the concept of use of force.
Then the efforts may be concentrated on the cyber attacks having physical
effects on the enemy’s infrastructures to be considered as a use of force. The
main problem is that there would be an unwillingness of the powerful States
which are likely to use the opportunities of cyberspace in Inter-State coercion
to evolve the interpretation of the article, while the technology-dependent or
powerless States would have a volition to evolve the Article.

Keywords

Use of Force, Self Defence, Cyberspace, Cyber Attacks, Cyberspace Operations, Act of Aggression

References

• [1] Andrew Moore, “Stuxnet and Article 2(4)’s Prohibition Against the Use of Force: Customary Law and Potential Models”, Naval Law Review, Vol.64, 2015, p.1-25.
• [2] Jack M. Beard, “Legal Phantoms in Cyberspace: The Problematic Status of Information as a Weapon and a Target Under International Humanitarian Law”, Vanderbilt Journal of Transnational Law, Vol.47, 2014, p.131.
• [3] Kelly A. Gable, “Cyber-Apocalypse Now: Securing the Internet Against Cyberterrorism and Using Universal Jurisdiction as a Deterrent”, Vanderbilt Journal of Transnational Law, Vol.43, 2010, p.61.
• [4] Michael N. Schmitt, “Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework”, Columbia Journal of Transnational Law, Vol.37, 1999, p.885.
• [5] Todd C. Huntley, “Controllıng the Use of Force in Cyberspace: The Application of the Law of Armed Conflict During a Time of Fundamental Change in the Nature of Warfare”, Naval Law Review, Vol.60, 2010, p.1-40.
• [6] Vida M. Antolin-Jenkins, Defining the Parameters of Cyberwar Operations: Looking for Law in all the Wrong Places?”, Naval Law Review, Vol.51, 2005, p.9.
• [7] An Assessment of International Legal Issues in Information Operations , http://www.au.af.mil / au / awc / awcgate / dod-io-legal / dod-io-legal.pdf; last visited April 17, 2016.
• [8] David Kushner, “The Real Story of Stuxnet; How Kaspersky Lab tracked down the malware that stymied Iran’s nuclear-fuel enrichment program”; http:// spectrum.ieee.org / telecom / security / the-real-story-of-stuxnet, erişim tarihi: 13.04.2016.
• [9] U.S. Department of Defense Dictionary of Military and Associated Terms, Joint Publication 1-02, 8 November 2010 (As Amended Through 15 February 2016), p.57-58, http://www.dtic.mil / doctrine / new_pubs / jp1_02.pdf, last visited April 17, 2016.