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Use of Cyber Means to Enforce Unilateral Coercive Measures in International Law

ALI ABUSEDRA , ABU BAKAR MUNIR AND MD TORIQUL ISLAM

Introduction

The objective of this chapter is to examine the use of cyber means to enforce unilateral coercive measures in international law. In doing so it will consider the relationship between sanction regimes and cyberwarfare, and what might influence the effectiveness of such measures. It will begin by discussing the concept of ‘cyber warfare’ and the threats that cyberattacks pose to States, organizations and the international legal order. It will then consider sanctions as a response to cyberwarfare, and whether there exists any basis in international law to support the imposition of sanctions as a consequence of cyberattacks. It will also examine existing unilateral legal and institutional frameworks to address the threat of cyberwarfare and the need for cross-border law enforcement co-operation in confronting cyberattacks.

While the twentieth century was marked by conventional military aggressions, the twenty-first century has witnessed the emergence of sophisticated, non-conventional security threats in the form of cyberattacks. The Internet has also experienced a substantial increase in the global use of various modes of electronic behaviour, particularly with advances in information and communications technologies (ICTs) and their widespread dispersal. Consequently, societies are becoming more dependent on ICTs, with aspects of governance being migrated to digital platforms. The cyber domain now constitutes an important component of a state’s activities in various spheres, including aspects of its social, economic and political as well as defence undertakings. Although cyberspace presents opportunities to individuals and national security, so too does it pose threats to both of these actors.

The interaction between cyberspace and the ‘real’ world presents various complex issues from a legal, technical and operational perspective. The emergence of new technologies provides opportunities for cybercriminals to try to avoid detection, but also for states to mitigate the effects of cybercrime. The ‘war on terror’ which began in the 1990s is also witnessing a gradual paradigm shift into the realm of cyber warfare. Leon Panetta, in his capacity as a former US Secretary of Defense, warned for instance that foreign cyber actors were probing America ’s critical infrastructure networks, targeting computer control systems which operate chemical, water and electricity plants, as well as transport systems. 1 The United Nations Group of Governmental Experts has also identified cyberwar as one of the most urgent dilemmas of the twenty-first century. 2

In the context of Clausewitz ’s ‘Principles of War’, it can be said that cyberwarfare is not less than a conventional war, since ‘war is the continuation of politics by other means ’. 3 The legal regulatory frameworks on the imposition of unilateral sanctions are the most ambiguous areas of international relations. 4 As Holland remarks, international law is a vanishing point of jurisprudence because it lacks a lawmaking body, interpreting agency and enforcement mechanisms. 5 Such an outlook gives rise to the perspective that sanctions are a ‘grey area’ of international law, 6 and this is likely to be greyer in the near future when considering current trends of extreme nationalism, protectionism and unilateralism. Unilateral sanctions denote a middle ground in foreign diplomacy, being comparatively harsher than oral condemnation, but less robust than the use of force. 7 However, sanctions may lead to wars rather than preventing them, while some scholars are of the views that economic sanctions result in the loss of more lives than all other means of war. 8

1 US Department of Defense: Remarks by Secretary Panetta on Cybersecurity to the Business Executives for National Security, New York City (11 October 2012), available at archive.defense.gov/Transcripts/Transcript. aspx ? TranscriptID=5136.
2 N Tsagourias , ‘The Law of Cyber Warfare: Restrictions, Opportunities and Loopholes’ ( 2017 ) 15 Canadian Journal of Law and Technology 27.
3 C Von Clausewitz , On War, ed. and trans ( 1976 ) M Howard and Paret ( Princeton University Press , 1976 )  75.
4 CE Cameron , ‘Developing a Standard for Politically Related State Economic Action’ ( 1991 ) 13 Michigan Journal of International Law 218 .
5 TE Holland , The elements of jurisprudence ( Oxford University Press , 1917 ) ; RD Sloane , ‘ Law at the Vanishing Point: A Philosophical Analysis of International Law. By Aaron Fichtelberg ’ ( 2010 ) 104 American Journal of International Law 549 .
6 A Hofer , ‘ The Developed/Developing Divide On Unilateral Coercive Measures: Legitimate Enforcement or Illegitimate Intervention ? ’ ( 2017 ) 16 Chinese Journal of International Law 175.
7 B Early , ‘Statecraft and the Limitations of Economic Sanctions’ E-International Relations ( 21 August 2016 ) , available at www.e-ir.info/2016/08/21/statecraft -and-the-limitations-of-economic-sanctions.
8 AM. Codevilla, ‘Do Economic Sanctions Work ?’ Hoover Institution ( 29 March 2018 ) , available at www.hoover.org/research/do-economic-sanctions-work .

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