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

Throughout history, public international law has primarily focused on conflict law, particularly armed conflict. Various publications have covered this topic. 671 Information warfare, hybrid warfare, and the activities of independent criminal groups present new challenges that have never been encountered before in international law. The Tallinn Manual 2.0, 672 published in February 2017, was a response to these issues. However, although this document holds great value in contributing to the understanding and practice of international law and will be extensively cited in subsequent research, it does not amount to an act of international law in the same manner as the international agreements mentioned previously. Rather, a specific piece of legislation must be sought for as an ultimate resolution instead of relying on guidelines. To achieve objectivity, this research study aims to conduct a comparative analysis of the existing proposed solutions. The paper intends to evaluate the progress made and determine whether the proposed mechanism is enough to achieve the objectives pursued by international law. The adopted methodology involves discussing the formal and definitional issues related to the problem at hand. First, the cyber-attack itself will be defined and then placed in an international context. Next, the text will use categories as a basis for organizing the text, which are necessarily the basis for analyzing the issue of cyber-attacks in the context of international conflicts and will continue to be so in the future. These categories will be discussed comparatively on the basis of the current state of the law and the proposed changes to this regime at the UN level. However, the focus of the analysis will be on whether the envisaged international cooperation provisions have the potential to realistically address the global nature of the challenges posed by transnational cyber attacks. Finally, conclusions will be drawn as to the shape and changes that the proposed UN Convention could bring to Europe and the world. The main thesis of this text is that the current paradigm based on combating cybercrime through enumeration of crimes that together create a concept of cybercrime is ineffective and bares the critical mistake of transposing real-world solutions to cyberspace. 1. Background on Transnational Cyber-Attacks Central to this research is the concept of a transnational cyber attack, which remains legally undefined. However, it is unequivocal that this refers to a cyber attack causing identifiable effects on multiple states. The inclusion of the identifiability clause is fundamental since cyber attacks, particularly those associated with terrorism, can result in significant international implications that are problematic to investigate. Identifying the definition of a cyber attack might seem straightforward, followed by the incorporation of an international perspective, and ultimately leading to the resolution of the definitional issue. However, this matter is unfortunately not as straightforward. 673 671 See in particular: Downey Jr WG, ‘The Law of War and Military Necessity’ (1953) 47 AJIL 2; Bassiouni MC, International Terrorism and Political Crimes (Springfield, 1975); Detter I, The Law of War (CUP, 2000). 672 Schmitt M, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (CUP, 2017). 673 It must be mentioned, that apart from regulations cited in this text there haven’t really been any documents international level that address this matter precisely and satisfyingly. Most importantly it is hard to seek solution in any of the OECD documentation addressing the cybersecurity issues, namely: OECD, OECD,

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