On 29 April 2007, Estonia faced an unprecedented attack marking the first steps which shifted international conflicts into cyberspace. Indeed, Estonia got closer with Western countries and increasingly opposed its Russian Big Brother. The country suffered a denial of service attack, intended to make the State servers unavailable by saturating them of requests. Very quickly, the country suspected an attack from the Russian State, due to political tensions between the two countries.
This cyber-attack prompted the international community to question the application of international law to this new form of war: cyberwar. Can cyber-attacks constitute a use of armed force? Is a virtual intrusion on a territory equivalent to a physical intrusion? International law, including the provisions of the Charter of the United Nations, has not so far provided an explicit answer to these activities that are too recent to be addressed in the texts. Therefore, it appeared necessary for the international community to clarify the situation as soon as possible and by other methods.
The first contribution of Tallinn Manuals:
The Tallinn Manuals are two non-binding reports published in 2013 and 2017 commissioned by NATO following Estonia’s cyber-attack to determine the application of international law to conflicts in cyberspace.
The first volume of the Manuals defines a cyber-attack as “a cyber offensive or defensive operation, reasonably likely to injure or kill persons, or damage or destroy property“. Thus, the report admits that cyber-operations can be assimilated to the use of armed force depending on the destructive effect of these operations, which makes it possible to bring it within the scope of the Charter of United Nations, and precisely as contravening the prohibition on the use of force in international relations in Article 2.4 and thus triggering the self-defence referred in Article 51. This first report provided a rapid response to the questions about cyber-attacks that emerged after the Estonian state attack.
The second volume, published in 2017, covers almost all operations in cyberspace. It thus raises issues related to State responsibility and sovereignty, telecommunications law, diplomatic and consular law, but also air law, outer space law, the law of the sea and human rights. In particular, it specifies the case of attacks that do not necessarily involve the use of force in peacetime.
Although non-binding, these reports reinforce the applicability of the principles of the UN Charter on the use of force, whose obsolescence in cyberspace could threaten the global balance. They have also provided a basis for the work of the international legal community.
The recent input of the High Level Group on Digital Cooperation:
The High Level Group on Digital Cooperation was established on 12 July 2018 by Antonio Guteres, Secretary-General of the United Nations. Its objective is to “advance proposals to strengthen digital cooperation between governments, the private sector, civil society, international organizations, technical and academic communities and relevant stakeholders“.
In his report issued in June 2019, named “The era of digital interdependence”, the Group highlighted the important and rapid transformation of society brought about by digital technologies to an unprecedented level. While they offer unlimited possibilities, they are also the source of abuse. He then noted that technological change undermines the usual mechanisms of international cooperation that are not able to keep up with the digital pace. Finally, it highlighted the risk associated with this continuing uncertainty, threatening to fragment international cooperation and lead to normative competition and ultimately shaking the digital sector.
Finally, the working group calls for the use of flexible mechanisms, soft law, allowing greater flexibility and a faster response to technological developments. The Tallinn Manuals are a striking example of this.
This report highlights an evolution in the mechanisms of normative enactment at the international level through a phenomenon of relaxation that makes it possible to widen the boundaries of international law.
Master 2 Cyberjustice – Promotion 2018-2019