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

that it would not have made without the existence of said attack, even if the harm was not done in a sector covered by the domaine réservé, this attack is considered prohibited intervention. 122 As with coercion, the latter of the aforementioned contentions, which is based on an effects approach, seems to be the best fit for cyberspace particularities. This would allow the rule to be applied despite the quiet restrictive traditional iteration of domaine réservé and also take into account the blurring of the lines between state and private that cyberspace inevitably imposes. Conclusion Reflecting on the analyzed elements of traditional international law rules, we can draw some conclusions on how said rules may be applied to cyberspace. First and foremost, I believe that the aforementioned analysis is proof that international law may be tweaked in order to address situations in the field of cyberspace, even though the specific international law rule was not created to apply to that specific situation. International law has shown throughout the years that it can be flexible and its rules be modified according to the particular context they are applied. Any calls to the opposite, only contribute to the rigidity and sluggishness for which international law is infamous for. Secondly, due to its peculiarities, cyberspace seems to favour a version of the rules that focuses on an effects-based approach. Due to the rapid speed with which cyber attacks are conducted, the possibility to use multiple proxies, as well as the ease with which the instruments of the attacks are obfuscated, it is better to focus on the damage that the cyber-attack has caused that the action itself. This is not the perfect way, but it is the pragmatic way to effectively regulate, even in part, cyberspace. This concerns both the application of the no-harm principle and the principle of non-intervention when applied to cyberspace. The protection of critical infrastructures against malicious cyber operations is an issue of vital importance and it has not been given the attention it deserves. International law can play a considerable part and it only needs to utilise some of its most traditional and basic rules. The due diligence obligations of the no-harm principle, and the prohibition of intervention are cornerstones of the international legal order. Nevertheless, this exercise can also function as a way to underline the need for flexibility when applying international law and the importance of attempting to apply the existing rules before starting to create new ones.

122 Coco A, Dias T and van Benthem T, ‘Illegal: The SolarWinds Hack under International Law’ (2022) 33(4) European Journal of International Law 1275, p. 1281.

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