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

Authors : Hakan Selim Canca

Pages : 60-72

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Publication Date : 2017-04-28

Article Type : Other

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