CYIL vol. 12 (2021)

martina Šmuclerová CYIL 12 (2021) an international custom in line with the States’ needs and wishes and in compliance with international legal procedures. Preemptive self-defence in cyberspace constitutes such a challenge, marked bymultifaceted and inter-disciplinary questions. State’s survival, or simply State’s interests of a descending scale, versus legal certainty and values of international community as a whole are at stake. Finding the optimum balance with respect to the international rule of law is in the hands of States, members of international community. If “a very widespread and representative participation” including States “whose interests [are] specially affected” emerges, 75 such a rule presenting an exception to the general prohibition to use force enshrined in Art. 2 (4) may emerge, if accepted and recognized by the international community of States as a whole. This highlights the importance of States’ contribution to the ongoing debates at the international fora on the applicability of international law on the ICT and the formulation of national cybersecurity strategies. Silence or passivity is a legal fact in international legal order and might impact the formulation of a new custom by the proactive proponents. Cyberworld, notably, is fast, unpredictable and trailblazing and constitutes an exemplary space where facts, no matter how dissimulated and unilateral they may be, might precede law.


75 Supra note 53.

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