Beyond Self-Defense and Countermeasures: A Critical Assessment of the Tallinn Manual's Conception of Necessity

By Schaller, Christian | Texas Law Review, June 1, 2017 | Go to article overview

Beyond Self-Defense and Countermeasures: A Critical Assessment of the Tallinn Manual's Conception of Necessity


Schaller, Christian, Texas Law Review


Introduction

Much has been written by scholars and practitioners about how the right to self-defense and the law of countermeasures can be applied to combat different threats in cyberspace. It is therefore no surprise that Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations places special emphasis on these concepts.1 Another possible remedy for responding to serious cyber incidents, which has not attracted much attention so far, is the plea of necessity as outlined in Rule 26 of Tallinn Manual 2.0. At first glance, Rule 26 and the seven pages of commentary by which it is accompanied convey a fairly clear and convincing image of necessity in the cyber context. But some doubts remain. The present essay questions, in particular, whether the specific conception of necessity embodied in Tallinn Manual 2.0 is really an "objective restatement of the lex latai"2 Moreover, it will be shown that the interpretation of Rule 26 is not as uncontroversial as it may appear when reading the relevant passages in the Manual. The critique voiced in this essay is based on concerns that the plea of necessity is particularly susceptible to abuse and that an excessive invocation in response to cyber incidents could increase the risk of misperception, escalation, and conflict.

First of all, it needs to be set out in which situations the plea of necessity may become relevant at all. For this purpose it is useful to briefly delineate the scope and limits of the concepts of self-defense and countermeasures. A State facing a cyber operation that constitutes an armed attack can exercise its inherent right to self-defense as laid down in Article 51 of the U.N. Charter, irrespective of whether the attack has been carried out by another State or a non-State actor.3 In most cases, however, the threshold of an armed attack will not be crossed. Malicious cyber operations of a lower intensity may be repelled with active cyber defenses short of the use of force, which could be permitted under the law of countermeasures. Countermeasures are an instrument to induce a State that is responsible for an internationally wrongful act to comply with its international obligations as reflected in the Articles on State Responsibility adopted by the International Law Commission (ILC) in 2001 (Articles 22 and 49-54) 4 Application of this instrument presupposes that the conduct to be countered is attributable to a State.5 As far as a cyber operation by a non-State actor cannot be attributed, countermeasures against a State will be available only to the extent that there has been a related breach of a due diligence obligation by that particular State.6 Moreover, the law of countermeasures does not justify an encroachment upon the rights of a third State not responsible for an internationally wrongful act.7 But active cyber defenses often do have unintended effects on third States due to the high level of interconnectedness and interdependency of digital infrastructure. This is the case, for example, where a State reacts to a malicious cyber operation with shutting down foreign infrastructure that has a key function for communication in a larger region. The fact that a certain response is lawful as a countermeasure vis-avis one particular State does not make it lawful per se. In relation to other States, the measure may still constitute a breach of an international obligation.8 Here the plea of necessity could come into play as a circumstance precluding wrongfulness. In constellations in which neither the right to self-defense nor the law of countermeasures applies, "the plea of necessity may present the sole option for a response that would otherwise be unlawful."9 Unlike self-defense and countermeasures, necessity does not depend on prior unlawful conduct and does not require attribution.10 A state of necessity may just as well be brought about by a natural disaster. Robin Geiß and Henning Lahmann described the character of the plea of necessity as follows: "the question is not who or what caused the situation, but only what is necessary in order to avert the danger or mitigate the harm caused by the situation. …

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