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

cyber operations, they will have a motive to increase their cybersecurity standards, introduce new cybersecurity protections, and generally be more vigilant against cyber attacks. And lastly, taking into account that the most vulnerable targets tend to be their critical infrastructures, states will rush to fortify them fostering thus a new culture for cybersecurity. 2. The non-intervention principle: A classic rule for a modern solution The non-intervention principle is one of the fundamental principles of international law. 96 Based on sovereign equality and political independence, 97 it forbids states from intervening coercively in the domestic or foreign affairs of other states. 98 Its importance in international law has been recognized both by the Permanent Court of International Justice (PCIJ) 99 and by the ICJ. 100 According to the latter, non-intervention represents ‘the right of every sovereign State to conduct its affairs without outside interference and is one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely’. 101 However, cyberspace alters the playing field significantly. Newfound threats like digital election interference 102 and the increase of state sponsored cyber-attacks aiming to intervene to other states’ internal affairs 103 disrupt significantly the two constitutive elements of intervention, namely the element of coercion and the element of domaine réservé, when applied two cyberspace, as they are applied in a kinetic context. Thus, like the case of the no-harm principle, it must be examined whether those two elements need to be modified in order to apply in a cyber context. The first element that I will consider is the element of coercion. There is an abundance of sources which establish the stalwart link between non-intervention and coercion, which includes judicial practice, 104 state practice, 105 and even scholarly views about its existence in a cyber context. 106 It is thus accepted that for an intervention to be prohibited, coercion is essential. The threshold of coercion, however, can still be 97 Jennings R and Watts A, Oppenheim’s International Law. Intervention , 1 (OUP, 2008), pp. 430–49. 98 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). 99 PCIJ S.S. Lotus (France v. Turkey) Judgment [1927] PCIJ (Ser. A) No. 10, 18. 100 Corfu Channel Case (n 67), 35; Nicaragua Case (n 96), paras 202, 205, 25; Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda) , Judgment [2005] ICJ Rep 168, paras 161–165 101 Nicaragua Case (n 96), para 205. 102 Tsagourias N, ‘Electoral cyber interference, self-determination and the principle of non-intervention’ (EJIL: Talk! , 6 August 2019) accessed 31 October 2023. 103 Hathaway O et al, ‘The Law of Cyber-Attack’ (2012) 100 California Law Review 817. 104 Nicaragua Case (n 96), para 205; Corfu Channel Case (n 67), para 35. 105 Friendly Relations Declaration (n 98). 106 Schmitt M, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (CUP, 2017), Rule 66. 96 ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Judgment [1986] ICJ Rep 1986, para 202.

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