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1 1 (December 14, 2023)

handle is hein.crs/govenry0001 and id is 1 raw text is: Congressional Research Servi lnformiing iihm legislative debate since 1914 Use of Force in Cyberspace Introduction There are no internationally accepted criteria yet for determining whether a nation state cyberattack is a use of force equivalent to an armed attack, which could trigger a military response. Likewise, no international, legally binding instruments have yet been drafted explicitly to regulate inter-state relations in cyberspace. Self-defense and countermeasures for armed attacks are permitted in international law when a belligerent violates international law during peacetime, or violates the law of armed conflict during wartime. However, the term armed attack has no universally accepted definition and is still not well-settled with respect to cyberattacks. In addition to what constitutes an armed attack in cyberspace, questions remain over which provisions of existing international law govern the conduct of war in cyberspace. Relevant Treaty Provisions North Atlantic Treaty Article 4: The Parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened. North Atlantic Treaty Article 5: The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. United Nations Charter Article 51: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. United States Doctrinc In September 2012, the State Department took a public position-still in effect-on whether cyber activities could constitute a use of force under Article 2(4) of the United Nations (U.N.) Charter and customary international law. According to State's then-legal advisor, Harold Koh, Cyber activities that proximately result in death, injury, or significant destruction would likely be viewed as a use of force. Examples offered in Koh's remarks included triggering a meltdown at a nuclear plant, opening a dam and causing flood damage, and causing airplanes to crash by interfering with air traffic control. By focusing on the ends Updated December 14, 2023 achieved rather than the means with which they are carried out, this definition of cyber war arguably fits within existing international legal frameworks. If an actor employs a cyber weapon to produce kinetic effects that might replicate fire power under other circumstances, then the use of that cyber weapon rises to the level of the use of force. However, the United States recognizes that cyberattacks without kinetic effects are also an element of armed conflict under certain circumstances. Koh explained that cyberattacks on information networks in the course of an ongoing armed conflict would be governed by the same principles of proportionality that apply to other actions under the law of armed conflict. These principles include retaliation in response to a cyberattack with a proportional use of kinetic force. In addition, computer network activities that amount to an armed attack or imminent threat thereof' may trigger a nation's right to self-defense under Article 51 of the U.N. Charter. The 2011 International Strategy for Cyberspace affirmed that when warranted, the United States will respond to hostile acts in cyberspace as we would to any other threat to our country. The International Strategy, which has not been updated, goes on to say that the U.S. reserves the right to use all means necessary-diplomatic, informational, military, and economic-as appropriate and consistent with applicable law. One of the defense objectives of the International Strategy is to work internationally to encourage responsible behavior and oppose those who would seek to disrupt networks and systems, dissuading and deterring malicious actors, and reserving the right to defend national assets. Chapter XVI of the Department of Defense Law of War Manual notes that the United States strives to work with other states to clarify not whether international law applies to cyberspace, but how. NATO Doctrine In 2009, the North Atlantic Treaty Organization (NATO) Cooperative Cyber Defense Center convened an international group of independent experts to draft a manual on the law governing cyber conflict. The first Tallinn Manual, as it is known, was published in 2013 and offers 95 black letter rules addressing sovereignty, state responsibility, the law of armed conflict, humanitarian law, and the law of neutrality. The Tallinn Manual is an academic text and as such nonbinding. Published in February 2017, Tallinn Manual 2.0 expands upon the first and offers 154 black letter rules governing cyber operations, including in peacetime. In the provisions of Article 5 of the North Atlantic Treaty, an attack on one member is considered an attack on all, affording military assistance in accordance with Article 51 of the U.N. Charter. However, NATO does not presently define cyberattacks as clear military action. The Tallinn Manual equates a use of force to those cyber operations whose

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