New Technologies in International Law / Tymofeyeva, Crhák et al.

Charter. This prerequisite later allowed for a new dimension of the cyber law to develop as well as for the inception of the original Tallinn Manual itself. However, the reality is multifarious, and not every utilization of cyber means constitutes a breach of the ius ad bellum . The threshold of what is considered a use of force in international law, coined in the previous decades, should apply to contemporary conditions. Quite famously recorded in the travaux préparatoires , the architects of the UN Charter did not want it to include economic coercion, 608 which was also confirmed and affiliated with sorts of political duress and pressure in the Declaration on Friendly Relations adopted by the UN General Assembly a quarter of a century later. 609 On the other hand, the prohibition of the recourse to force in Art. 2 (4) of the Charter proscribes any threat or use of force in any other manner inconsistent with the Purposes of the United Nations. 610 Once again, the supposed original meaning behind this formulation is evidenced by the travaux préparatoires as overlapping any threat or use of force not falling within the categories of territorial integrity or political independence of (UN member) States. 611 The applicability of the widely recognized exceptions to the prohibition will be dealt with later in the article. Although there is no general authoritative definition of what constitutes a threat and use of force, the international community benefits from some of the criteria of illegal use of force and armed attacks articulated by the ICJ in the notorious Nicaragua case. For instance, the Court decided that mere funding of guerillas engaged in armed hostilities, otherwise unattributable to the assisting State, or mere frontier incidents, do not amount to the use of force. Contrarily, providing training and arms to the guerillas in fact does involve the threat or use of force against the injured State. 612 How do these requirements translate to the modern dimension of cyber warfare? The International Group of Experts (IGE) behind the Tallinn Manuals resolutely agreed on the fact that “ there is no basis for excluding cyberoperations from within the scope of actions that may constitute a use of force if the scale and effects of the operation in question are comparable to those of non cyber operations that would qualify as such .” 613 608 6 UNCIO. Docs. 334, 609 (1945); Doc. 2, 617 (e) (4), 3 UNCIO. Docs. 251, 253-54 (1945). 609 UNGA, ‘Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations’, UN Doc. A/RES/2625(XXV) (1970). 610 UN, Charter of the United Nations, adopted on 24 October 1945, 1 UNTS 16, Art. 2, para 4. 611 See, travaux péparatoires (n 608). 612 ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America) , Judgment [1986] ICJ Rep 392, para 228. 613 Schmitt M, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (CUP, 2017), p. 331, and similarly in: Schmitt M, Tallinn Manual on the International Law Applicable to Cyber Warfare (CUP, 2013), p. 19. Confirmed also by the reports by the following UN GGE reports: UNGA, ‘Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security’, UN Doc. A/68/98, para 19 (June 24, 2013); UNGA, ‘Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security’, UN Doc. A/70/174, para 24 (July 22, 2015); Roscini M, ‘World wide warfare: Jus ad bellum and the use of cyber force’ (2010) 14 Max Planck YBUNL 85, p. 106.

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