The Evolving Interpretation of the Use of Force in Cyber Operations: Insights from State Practices

Anusha Pakkam

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In an era when cyber activities are reshaping global security dynamics, the interpretation and application of international law, especially concerning the prohibition on the use of force under Article 2(4) of the UN Charter, has become increasingly complex. This post delves into how States have addressed the prohibition. It aims to tease loose where there appears to be consensus, as well as potential fault lines. A forthcoming companion post will do the same concerning the right of self-defense in cyberspace. Both posts draw on deeper treatment of the subject in Cyberspace and the Jus ad Bellum: The State of Play, an article I published with Professor Michael Schmitt in International Law Studies. Our paper analyzed the positions of 39 individual States, as well as those of NATO and the African Union (AU), which represent the views of 30 and 55 States, respectively.

The primary aim of the article was to understand how States are responding to the critical question of when a hostile cyber operation rises to the level of a “use of force” under Article 2(4) of the UN Charter, and what this means for the application of international law in cyberspace. Given the rapidly evolving nature of cyber threats and the lack of consensus on applying traditional legal frameworks to cyberspace, this study is crucial for identifying emerging trends in State practice and providing insights into the evolving interpretation of the jus ad bellum, helping to inform legal advisors on these developments.

The Core Issue: Article 2(4) of the UN Charter

Article 2(4) of the UN Charter lies at the heart of legal discourse surrounding the use of force in cyberspace. A cornerstone of international law, it sets forth the fundamental rule that States may not engage in the threat or use of force. Specifically, Article 2(4) states, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”