CYIL vol. 12 (2021)

martina Šmuclerová CYIL 12 (2021) constitutes its integral and inherent part, does not allow timewise for any other measures to stop and evade it, in line with the principles of necessity and proportionality, it might be legitimately qualified as a launched armed attack. Yoram Dinstein refers to a situation that a State “embarks on an irreversible course of action”. 27 It is in this perspective, that the German position on self-defence in cyberspace might be understood. In fact, in a Position Paper by the Federal Government published in March 2021, Germany declares: “The right to self-defence according to art. 51 UN Charter is triggered if an armed attack occurs. […] In Germany’s view, art. 51 UN Charter requires the attack against which a State can resort to self-defence to be ‘imminent’. The same applies with regard to self-defence against malicious cyber operations. Strikes against a prospective attacker who has not yet initiated an attack do not qualify as lawful self-defence .” 28 It seems that Germany’s perception of the term “imminent” refers to an attack that has already been initiated. Cyberattacks, however, might not be largely impacted by this legal uncertainty marking the physical world, in view of their rather immediate and instant nature. For example, placement of a remotely activated malware into a foreign ICT system would not constitute a cyberattack, only a capacity to initiate such attack in the future. Attempts to extend the scope of the right to self-defence are, thus, directed rather beyond the framework of Art. 51 to the sphere of custom. For this aim, it is not necessary to refer to the term “inherent” right contained in the provision, as some commentators do. The existence of a custom is self-standing and not conditioned by a reference or confirmation in a conventional norm. The meaning of the word “inherent” simply refers to the “natural” right, a characteristic attribute of the legal status of a State, which surely corresponds to a customary nature. In this vein, ICJ noted in the advisory opinion on the Legality of the threat or use of nuclear weapons (hereafter “ Nuclear Weapons ”): “[t]he Court cannot lose sight of the fundamental right of every State to survival, and thus its right to resort to self-defence, in accordance with Article 51 of the Charter, when its survival is at stake” 29 . In the Nicaragua Case, the Court elaborates on the notion “inherent” in detail: “this reference to customary law is contained in the actual text of Article 51, which mentions the ‘inherent right’ (in the French text the ‘droit naturel’) of individual or collective self-defence, which ‘nothing in the present Charter shall impair’ and which applies in the event of an armed attack. The Court therefore finds that Article 51 of the Charter is only meaningful on the basis that there is a ‘natural’ or ‘inherent’ right of self-defence, and it is hard to see how this can be other than of a customary nature, even if its present content has been confirmed and influenced by the Charter.” 30 The Court thus repetitively refers to an armed attack as the prerequisite for the exercise of the right to self-defence including in the customary field. Patrick Daillier and Alain Pellet explain the meaning and reference to “inherent” or “natural” right in Article 51 with respect to the context of Chapter VII: “This right is qualified there as ‘natural’ right which eliminates restrictive interpretations founded on the logic of collective security which is conceived as an artificial construction.” 31 This reflects the mistrust 27 Dinstein, Y., War, aggression and self-defence , 3 rd ed. 2001, Cambridge, p. 172. 28 The Federal Government, Germany, On the application of international law in cyberspace , Position Paper, March 2021, pp. 15-16, available at . 29 Legality of the threat or use of nuclear weapons , advisory opinion of 8 July 1996, ICJ Reports 1996 , § 96. 30 Nicaragua Case, op. cit. note 21, § 176, see also § 193. 31 Daillier, P., Pellet, A., Droit international public , 7ème éd. 2002, Paris, p. 942. Thomas Franck affirms

74