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

be better suited, especially taking into account the plurality and the variety of cyber threats. In any event, following effects-based approaches to apply international law rules to cyberspace, has already proven useful, since such an effects-based approach is one of the most dominant when applying the prohibition to use force in cyberspace. 114 The second element to be considered is the one of domaine réservé . In Nicaragua, the ICJ defined the domaine réservé, as ‘matters in which each State is permitted, by the principle of State sovereignty, to decide freely’. 115 The Court also provided two very broad examples ‘the choice of a political, economic, social and cultural system, and the formulation of foreign policy’. 116 Michael Schmitt made an effort to distinguish between issues that fall under the exclusive jurisdiction of the State and those that do not. Schmitt says that while ‘commercial activities typically do not,’ ‘elections fall within the domaine réservé.’At first glance, if a State participated in a meddling act ‘meant to give business advantages to its national companies’ it wouldn›t violate the non-intervention tenet. 117 Nevertheless, Schmitt also acknowledges that there may be a grey zone in the context of online communications. 118 Furthermore, as was the case with coercion, cyberspace blurs the line regarding what can be considered as domaine réservé of a state. For example, would the dissemination of disinformation on a private social media site be considered an interference with the electoral system? Is targeting consumers with false news about their elected authorities considered political interference? Given that private internet players such as Facebook and Twitter serve no sovereign purpose, it appears contradictory to regard any behavior occurring on these platforms as domaine réservé . 119 In addition, the growing presence of non-state actors, which may have tenuous connection with states-not enough for attribution to be established-complicates things and questions the character of non intervention as solely an inter-state rule. Thus, the element of domaine réservé must also be tweaked in order to properly apply to cyberspace. There have already been some proposals on the matter. To illustrate, it has been suggested that domaine réservé must be reinterpreted as domaine privilégié . This notion, based on the protective (or territoriality) principle, 120 would include the traditional elements of domaine réservé along with a state’s vital interests (e.g. national security and public safety) which are ‘necessary for the very survival of a state but also those that are essential for its independence, autonomy and stability’. 121 Others have supported that if the actualised harm of an attack forces a state to make a policy change 114 Buchan R, ‘Cyber Attacks: Unlawful Uses of Force or Prohibited Interventions?’ (2012) 17 Journal of Conflict and Security Law 211, p. 212; Dinniss H H, Cyber Warfare and the Laws of War (CUP, 2012), p. 74. 115 Nicaragua Case (n 96), para 205. 116 Ibid. 117 Schmitt M, ‘Grey Zones in the International Law of Cyberspace’ (2017) 42 Yale Journal of International Law 1. 118 Ibid. 119 Kilovaty, ‘The international law of cyber intervention’ (n 107), p. 103. 120 Higgins R, Themes and Theories , (OUP, 2009), pp. 799–810. 121 Moulin T, ‘Reviving the Principle of Non-Intervention in Cyberspace: The Path Forward’ (2020) 25(3) Journal of Conflict & Security Law , p. 437.

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