Decoding Article 8 of the International Law Commission's Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors

(2016) 21 Journal of Conflict and Security Law 405

Posted: 26 Aug 2016 Last revised: 3 May 2017

Date Written: March 20, 2016

Abstract

Cyber operations pose a set of novel challenges to the generally conservative body of the law of State responsibility. Central among them is the problem of attribution, which lies at the intersection of technology and law. This article reflects the recent developments in the States’ technological capacity to identify the sources of cyber attacks from the perspective of international law. It revisits Article 8 of the International Law Commission’s Articles on State Responsibility in order to ‘decode’ its contents vis-à-vis its drafting history and with an eye on its future application to the conduct in cyberspace. The article argues that there are three autonomous standards of attribution built into that provision: instructions, direction, and control. It then demonstrates the utility and limitations of each of them against the backdrop of actual and hypothetical cyber operations. The article concludes with suggestions for further development of the law in this area, focussing on the missing potential of the law to regulate instigation of wrongful cyber conduct and on the prohibitively strict test of control applicable de lege lata.

Keywords: attribution, cyber operations, non-state actors, state responsibility

JEL Classification: K33

Suggested Citation

Mačák, Kubo, Decoding Article 8 of the International Law Commission's Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors (March 20, 2016). (2016) 21 Journal of Conflict and Security Law 405. Available at SSRN: https://ssrn.com/abstract=2829598

Kubo Mačák (Contact Author)

University of Exeter ( email )

Northcote House
The Queen's Drive
Exeter, Devon EX4 4QJ
United Kingdom
+44 1392 72 5607 (Phone)

HOME PAGE: http://www.kubomacak.org

Register to save articles to
your library

Register

Paper statistics

Abstract Views
316
PlumX Metrics