State Obligations in Cyber Operations

Abstract

The number of cyber "attacks" being carried out by various actors is continually increasing. The vast majority of these cyber activities are not generated by nations, but by individual civilians, hacktivists, organized groups, transnational criminal organizations and other non-state actors. And yet, all of these harmful cyber activities originate and pass through the sovereign territory of individual nations. International law has long held that each nation has a duty to remedy transboundary harm that originates or passes through its sovereign borders and adversely affects another sovereign. Further, modern international law requires nations to solve these potential disputes peacefully, without resort to illegal force. This article analyzes these doctrines of international law, in light of the realities of cyber activities and argues that nations must solve their cyber disputes peacefully, and that they have an emerging duty of due diligence to monitor their networks in order to prevent them from being used to cause transboundary harm to other nations and in some cases, to non-state actors. Further, in the event of transboundary cyber harm, nations have a duty to cooperate with each other in resolving the situation.

Keywords: cyber, law of armed conflict, cyber war, cyber warfare, cyber crime, international law, international cyber dispute, transboundary harm, duty to prevent, precautionary principle, law of war, international humanitarian law, due regard, due diligence, state responsibility, United Nations Charter

JEL Classification: K00, K10, K19, K32, K33, O31, O33, O38