State Responsibility in Cyberspace: The Problem of Attribution of Cyberattacks Conducted by Non-State Actors

Law & Justice Review, Vol. 8, Issue 14, June 2017

58 Pages Posted: 4 Oct 2017

Date Written: June 1, 2017

Abstract

This paper assesses the effectiveness of international law in ensuring the responsibility of states for the cyber activities of non-state actors. In particular, it addresses the most critical international legal question of whether states can be held responsible for wrongful acts committed by non-state actors in or through cyberspace. The aim is to identify and apply the law of international responsibility and attribution models in order to help make the cyber world safer for all. This paper introduces a categorical analysis for the attribution of private conduct to a state by formulating attribution models in two main settings, de facto organ theory (agency-based attribution) and control theory (control-based attribution). This categorization offers a theoretical framework with which to validate legally consistent and practically applicable models of attribution. Both attribution theories characterize the legality of a state operation that is seemingly private conduct and transform the conduct of a physical person or entity into an “act of state.” This paper highlights the current models in the doctrine of attribution that correspond to the International Law Commission’s (ILC) articles and international case law concerning the responsibility of states for internationally wrongful acts. Since non-state actors have assumed a prominent role in modern day conflicts, states may elude responsibility by acting through them. If the requirement for attribution is set relatively high, states can simply evade responsibility. While it remains unclear whether state practice will adopt the lower or higher standards of proof in terms of accountability for sponsorship of cyber-attacks, this paper is nevertheless able to examine the applicability of the two theories of attribution for state responsibility as applied to cyber-attacks.

Keywords: State Responsibility, Accountability, Cyber Attacks, Attribution, Non-State Actors, ILC Articles

Suggested Citation

Tanyildizi, Emrah, State Responsibility in Cyberspace: The Problem of Attribution of Cyberattacks Conducted by Non-State Actors (June 1, 2017). Law & Justice Review, Vol. 8, Issue 14, June 2017 , Available at SSRN: https://ssrn.com/abstract=3047076

Emrah Tanyildizi (Contact Author)

Kyushu University ( email )

6-19-1, Hakozaki, Higashiku
Fukuoka, 812-8581
Japan

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