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

considered elusive as there are different opinions about it. 107 The opinions converge however that coercion removes from a state its control over its sovereign will. In the cyber age, these ideas of coercion create some difficult challenges. For example, what is the required magnitude of coercion? Is absolute loss of control required, or can it be partial? What if an initial act of influence or interference sets in motion a series of circumstances that deprives the victim State of authority over a particular matter? The cyber environment makes it increasingly difficult for coercion to be proven. Cyber interventions are usually more nuanced and, in the end, fail to reach the threshold of the ‘traditional’ iteration of coercion. This leads to often catastrophic cyber-attacks (e.g. the SolarWinds Hack) not being classified as unlawful intervention since that threshold is not met. Considering this, there is already support by scholars that advocate for lowering said threshold 108 or reformulating it 109 in order to apply to cyberspace. An idea that exists is to interpret coercion based on the unique challenges that cyberspace presents, adopting a broad interpretation of coercion. 110 Another proposal includes looking at non-intervention through a human rights perspective and thus linking coercion with violations of different human rights elements (e.g., the right to self-determination). 111 An older approach, instructs looking not at the tools and methods when discussing coercion, but rather at the effects that this coercion has on the victim state. 112 This can prove significantly effective for cyber operations since the methods that ore often used cannot reach the traditional threshold for coercion per se , but their effects could. Similar to this contention, another idea proposed that instead of coercion, the focus should be whether an activity causes a disruption, in order to amount to an unlawful intervention. 113 This also seems to be a good fit for cyber intervention, especially considering cases of disinformation, news manipulation and propaganda campaigns. Concerning coercion, it is my submission that it can be broadened as a concept in order to apply to cyberspace. Specifically, I believe that the traditional threshold of coercion is set too high, rendering the rule prohibiting intervention useless in a cyber context. For non-intervention to be applicable in cyberspace, an effects approach, would 107 Jamnejad M and Wood M, ‘The Principle of Non-Intervention’ (2009) 22 Leiden Journal of International Law 345; Kilovaty I, ‘The Elephant in the Room: Coercion’ (2019) 113 American Journal of International Law Unbound 87, p. 89; Schmitt M, ‘“Virtual” Disenfranchisement: Cyber Election Meddling in the Grey Zones of International Law’ (2018) 19 Chicago Journal of International Law 30, p. 51. 108 Schmitt M and Vihul L, ‘Sovereignty in Cyberspace: Lex Lata Vel Non?’ (2017) 111 AJIL Unbound 213. 109 Kilovaty (n 107), p. 87; Milanovic M, ‘Revisiting Coercion as an Element of Prohibited Intervention in International Law’ (2023) 117(4) American Journal of International Law 601. 110 Barela S, ‘Cross-border cyber ops to erode legitimacy: An act of coercion’ ( Just Security , 12 January 2017) accessed 31 October 2023. 111 Tsagourias (n 102). 112 McDougal M and Feliciano F, ‘International Coercion and World Public Order: The General Principles of the Law of War’ (1958) 67 Yale Law Journal 771, p. 782. 113 Kilovaty I, ‘Doxfare: Politically Motivated Leaks and the Future of the Norm on Non-Intervention in the Era of Waponized Information’ (2018) 9 Harv. Nat’l Sec. J. 146, p. 169 et seq ; Kilovaty I, ‘The international law of cyber intervention’ in Nicholas Tsagourias and Russel Buchan (eds) Research Handbook on International Law and Cyberspace (EE, 2 nd edn, 2021), p. 112.

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