CYIL vol. 12 (2021)

CYIL 12 (2021) PREEMPTIVE SELF-DEFENCE IN CYBERSPACE rule applies. In addition, the supremacy given to the UN Charter in Article 103 is partially relevant, too (taking into account the reference to “inherent” right contained in Article 51). State practice has not proved the acceptance of the validity of the Caroline argument, too. Sporadic instances, such as The National Security Strategy of the United States of America of September 2002 51 and the US-led intervention to Iraq, where a State made such an express or implicit reference to justify its military operation, encountered a criticism as to its legality. 52 Applicability to cyberattacks is even more remote and unsubstantiated, be it only for the condition of “coherence” of the State practice. Equating an international dispute over a physical raid targeting a steamer with a group of individuals onboard and not engaging a State responsibility, in the conditions of a 19 th century liberation movement, with a targeted cyberattack in the virtual sphere of technologies of 21 st century is hard to justify, regardless of the effects-based doctrine. The exhumation of the 19 th century international custom in order to apply it to today’s cyberattacks is not only at first sight irrelevant, but principally not justified in law. 3. A new international customary norm in cyberspace? If a preemptive self-defence in the cyberworld is deemed necessary and reveals itself to beunavoidable, it is recommended to adopt a fresh new approach of argumentation in a full compliance with international law. A new, specific customary norm of a preemptive self- defence in a cyberspace might be a viable concept for the international community if all legal prerequisites are met. For the moment, France, US, UK, and Australia have publicly claimed the specific right to a preemptive self-defence in cyberspace. If such precedents are followed by a “very widespread and representative participation” of other States, “provided it included that of States whose interests were specially affected” 53 coupled by acquiescence of others, a customary norm may emerge. As mentioned above, a formulation of a new exception to the general prohibition to use force enshrined in Art. 2 (4) would be at stake and therefore such a norm would need to be accepted and recognized by the international community of States as a whole, it means the consent of a quasi-totality of States is needed. Whether this consent is expressed by an action or acquiescence is not the determining factor. An opposition to such custom, regardless of the size of minority, would challenge its emergence. 54 Several questions arise with regards to this new legal construction. Primo , which States could be qualified as “States whose interests were specially affected”? If for example in the sphere of international space law, it is the spacefaring nations that pave the way for new customary norms, in the domain of the protection of State sovereignty and use of force, all States are impacted and their interests particularly affected. It is reasonable to argue that 51 The National Security Strategy of the United States of America , September 2002, see notably p. 15, available at . 52 See, for example, the analysis in Cassese, op. cit. note 38, pp. 1339–1341; Sapiro, M., Iraq: The shifting sands of preemptive self-defense, 97 The American Journal of International Law (2003)No. 3, pp. 599–607, or Christakis, T., Existe-t-il un droit de légitime défense en cas de simple “menace” ? Une réponse au “Groupe de personnalités de haut niveau” de l’ONU, In: Société française pour le droit international, Les métamorphoses de la sécurité collective. Droit, pratique et enjeux stratégiques . Paris, 2005, pp. 197–222. 53 North Sea Continental Shelf Cases , op. cit. note 39, § 73. 54 Persistent objector would not be applicable here due to the peremptory nature of the legal norm.


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