New Technologies in International Law / Tymofeyeva, Crhák et al.

was recognized as the key qualificators for meeting the threshold with the required effects and scale. 634 Conversely, in regard to operations not resulting in any physical damage, the authors of the Manual did not take a common stance. However severe the consequences of such attacks might otherwise be, the fact that no physical destruction, injury or death are engendered, divides the scholarship in this question. Using the popular example of the collapsed Stock Exchange, such “non-violent” attacks might lead to serious disturbance impacting the whole economy of the targeted State (not to even mention the potential transnational dimension) with grave financial damages. This scenario might seem to some as graver than others involving minor physical damages or destruction. Nevertheless, until now there is no general agreement over the character and legal qualification of such acts. In connection to the possibility of cyber-operation without physical damage being acknowledged as use of force, France presented a list of factors and circumstances prevailing at the time of the operation, such as the origin of the operation and the nature of the instigator (military or not), the extent of intrusion, the actual or intended effects of the operation or the nature of the intended target. 635 The Netherlands did not want to a priori rule out such operations having a very serious negative financial or economic impact. 636 Similarly, Norway considers operations engendering widespread economic destabilization as potentially amounting to the use of force in violation of Article 2 (4). 637 Italy leaves the door open for potential recognition of non-physical damage attacks due to the modern world’s reliance on digital technologies which may lead to the interruption of essential services without the need for physical damage. 638 Moving on to the phase of a forceful reaction to the armed attacks, the question of necessity and proportionality arises as a crucial limitation to this exceptional recourse to force in international law. As in the traditional conception, the effectuation of the right to defend oneself in the cyber environment is required to fulfill the criteria confirmed many times by international judicial institutions and considered customary. 639 The 634 Schmitt M, Tallinn Manual on the International Law Applicable to Cyber Warfare (CUP, 2013), p. 55; Schmitt M, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (CUP, 2017), p. 342. 635 ‘Droit international appliqué aux opérations dans le cyberespace’ ( France, Ministére des Armées ) , p. 3. 636 Netherlands: International Law in Cyberspace ( (n 622), p. 4. 637 UNODA, ‘Norway, Official compendium of voluntary national contributions’ A/76/136 (2021), p. 69–70. 638 ‘Communication to the United Nations Human Rights Committee In the Case of SDG against Italy (Anonymized Version) Submitted for Consideration under the Optional Protocol to the International Covenant on Civil and Political Rights to The United Nations Human Rights Committee’ ( GLAN , 2019), p. 8. 639 ICJ, Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Judgment [1986] ICJ Rep 1986, paras 176, 194, ICJ, Case Concerning Oil Platforms (Islamic Republic of Iran v. United States), Judgment [1996] ICJ Rep 2003, paras 43, 73,74 and 76; ICJ, Legality of the Threat or Use of Nuclear Weapons , Advisory Opinion [1996] ICJ Rep 1996, para 41, Judgment of the Nuremberg International Military Tribunal 1946 (1947) 41 AJIL 172, 435 – citing the Caroline test – see further e.g., Moore, Digest of International law, II, 24-30, 409-14; VI, 261-62; VII, 919-20.

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