Swinging a Fist in Cyberspace

Houston Law Review: Off the Record: Volume 9, Issue 1 (2018).

6 Pages Posted: 19 Jul 2018

Date Written: June 23, 2018

Abstract

As the US Supreme Court Justice Oliver Wendell Holmes Jr. opined, “[t]he right to swing my fist ends where the other man’s nose begins.” But when the force of a state’s “fist” collides with another state’s “nose” in cyberspace, what rights are activated?

Although the “use of force” is prohibited under Article 2(4) of the United Nations (UN) Charter, two exceptions exist: (1) The collective security power of the UN Security Council; and (2) a state’s inherent right to self-defense under Article 51. But how do these rights apply when a state swings its fist in cyberspace? Specifically, can Article 51 legitimately be used by states to justify the use of force against a malicious cyber operation? The central argument is that “cyber attacks” justify the invocation of Article 51 in the jus ad bellum (“right to war”) as a defensive measure under international law; however, this is subject to limitations – the responding state’s ability to credibly assess the scope and effects of the attack and attribute the attack source(s) and actor(s). Part II describes the relevant legal framework. Part III analyzes what constitutes a “cyber attack” and how context drives interpreting the scope and effects. Lastly, Part IV addresses the impediments to applying state responsibility in cyberspace.

Keywords: cyberspace, cyber war, cyber attack, war, international law, use of force, self-defense, critical infrastructure, state responsibility, security

Suggested Citation

Malekos Smith, Jessica Zhanna, Swinging a Fist in Cyberspace (June 23, 2018). Houston Law Review: Off the Record: Volume 9, Issue 1 (2018).. Available at SSRN: https://ssrn.com/abstract=3203974

Jessica Zhanna Malekos Smith (Contact Author)

Duke Law School ( email )

210 Science Drive
Durham, NC 27708-0204
United States

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