scholarly journals Cyber Attribution: Technical and Legal Approaches and Challenges

2020 ◽  
Author(s):  
Nicholas Tsagourias ◽  
Michael Farrell
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Theory And Practice ◽  
State Responsibility ◽  
Standard Of Proof ◽  
Regulatory Potential ◽  
The Creation ◽  
The Law ◽  
Attribution Process

Abstract Considering the role of attribution in the law of state responsibility, this article examines the technical and international law methodologies and determinants used when attributing malicious cyber activities falling below the use-of-force threshold to a state, and identifies the challenges that arise which lead to responsibility gaps. The article goes on to discuss a number of proposals that aim to improve the effectiveness of the attribution process and also close some of the existing responsibility gaps. They include institutional proposals envisaging the creation of an international attribution agency; normative proposals advocating the revision of the legal determinants of attribution; and proposals concerning the standard of proof. The aim of the article is to reconstruct the theory and practice of cyber attribution in order to enhance the regulatory potential of international law in this area.

Common Interests of Humankind and the International Regulation of the Use of Force

2018 ◽  
Author(s):  
Enzo Cannizzaro
Keyword(s):  
International Law ◽  
Use Of Force ◽  
State Responsibility ◽  
International Regulation ◽  
Philosophical Foundations ◽  
Un Security Council ◽  
Common Interests ◽  
The Law ◽  
Mere Existence ◽  
Further Development

The chapter discusses the philosophical foundations of the current regulation of the use of force. The chapter argues that, in correspondence with the emergence of a sphere of substantive rules protecting common interests of humankind, international law is also gradually developing a system of protection against egregious breaches of these interests. This conclusion is reached through an analysis of the law and practice governing the action of the UN Security Council as well as the law of state responsibility concerning individual and collective reactions to serious breaches of common interests. This system is based on positive obligations imposed upon individual states as well as UN organs, and it appears to be still rudimentary and inefficient. However, the chapter suggests that the mere existence of this system, these shortcomings notwithstanding, has the effect of promoting the further development of the law in search for more appropriate mechanisms of protection.

Necessity and Proportionality in International Peace and Security Law

2020 ◽  
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Military Force ◽  
Post Conflict ◽  
Self Defense ◽  
Military Necessity ◽  
Law Of Armed Conflict ◽  
The Law ◽  
Principle Of Proportionality

Necessity and proportionality hold a place in the international law governing the use of force by states and in the law of armed conflict (LOAC). However, the precise contours of these two requirements are uncertain and controversial. This book explores in 5 parts how necessity and proportionality manifest under the law governing the use of force and the LOAC. First, the book introduces the reader to how necessity and proportionality factor in the debate about the interaction between morality and law in the use of military force. Second, the book addresses the issue of how proportionality in the law governing the use of force relates to proportionality in the LOAC. Third, the book addresses a number of pressing legal issues including: how proportionality and necessity are linked under international law, the controversial “unwilling and unable” test, drones and targeted killing, their application during civil war, and the need for further transparency in states’ justification for the use of force in self-defense. Fourth, the book analyzes the role of military necessity within the LOAC on the battlefield. This includes discussions about the history and nature of the principle of military necessity, the proper application of the principle of proportionality, how commanders should account for mental harm in calculating proportionality, and the role artificial intelligence and autonomous weapons systems may play in a proportionality analysis. Finally, the book concludes with a discussion on the potential role of proportionality in the law governing post-conflict contexts.

State Responsibility and the Primary-Secondary Rules Terminology – The Role of Language for an Understanding of the International Legal System

2009 ◽  
Vol 78 (1) ◽  
pp. 53-72 ◽  
Author(s):  
Ulf Linderfalk
Keyword(s):  
International Law ◽  
Legal System ◽  
State Responsibility ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Present Essay ◽  
Legal Literature ◽  
International Legal System ◽  
The Law

AbstractIn the international legal literature, it is commonplace to talk about the law of state responsibility as secondary rules of law. The terminology emphasises that in some way or another the law of state responsibility is different from other rules of the international legal system – what international legal scholars refer to as primary rules of law. The present essay inquires into the soundness of this language. As argued, the primary-secondary rules terminology builds on two assumptions. First, it assumes that the law of state responsibility can be described as separate from the ordinary (or primary) rules of international law. Secondly, it assumes that the two classes of rules can be described as pertaining to different stages of the judicial decision-making process. As shown in this essay, neither assumption can be defended as correct.

scholarly journals The Law on State Responsibility and the World Trade Organization

2021 ◽  
Vol 22 (5-6) ◽  
pp. 759-803
Author(s):  
Anna Ventouratou
Keyword(s):  
World Trade Organization ◽  
International Law ◽  
World Trade ◽  
Dispute Settlement ◽  
State Responsibility ◽  
Vienna Convention ◽  
The World ◽  
The Law

Abstract This paper examines the role of general international law in the World Trade Organization (WTO) regime, using the rules on state responsibility as a case study. It identifies and discusses instances in WTO case law where such rules were applied directly or were taken into consideration in interpreting relevant WTO provisions. The analysis demonstrates that direct application of general international law for the determination of indispensable matters not regulated by the WTO Agreements is part of the inherent powers of WTO adjudicative bodies. Moreover, under Article 3(2) Dispute Settlement Understanding and Article 31(3)(c) Vienna Convention on the Law of Treaties, WTO adjudicative bodies have an obligation to take into account general international law in interpreting relevant WTO provisions. The paper delineates the methodology for assessing the interaction between general international law and WTO law and highlights the importance of adhering to this methodology to provide clarity and legal certainty regarding the scope and content of WTO obligations.

Consequences for Third States as a Result of an Unlawful Use of Force

2016 ◽  
Author(s):  
Paolo Palchetti
Keyword(s):  
Use Of Force ◽  
The Other ◽  
State Responsibility ◽  
Collective Self ◽  
Legal Position ◽  
The Law ◽  
Armed Intervention ◽  
Self Defence

This chapter explores some of the problems concerning the role of third states in situations of unlawful use of force by a state against another state. It first draws a distinction between states directly involved in conflict either as the instigator or as the victim of an unlawful armed intervention, and ‘third states’. It then considers the rules that define the legal position of third states in situations arising from an unlawful use of force, as well as the responses that such states are entitled or obliged to take when dealing with such situations. In particular, the chapter examines the rules on state responsibility and their impact on and interaction with the other rules dealing with the position of third states. It also describes the scope of applicability of the law of neutrality, collective self-defence, enforcement of erga omnes obligations, and centralized versus decentralized responses by third states.

Guerrillas in the Sea Mist

2018 ◽  
Vol 3 (1) ◽  
pp. 31-94
Author(s):  
Jonathan G. Odom
Keyword(s):  
International Law ◽  
Use Of Force ◽  
Law Of The Sea ◽  
State Responsibility ◽  
People's Republic Of China ◽  
Republic Of China ◽  
Naval Warfare ◽  
Legal Problems ◽  
Recent Scholarship ◽  
The Law

Building upon recent scholarship about the maritime militia of the People’s Republic of China, this article analyzes a number of concerns about that militia’s status and its activities under existing regimes of international law. First, it lays the foundation of general principles of state responsibility and attribution as they pertain to the maritime militia. Thereafter, it identifies and applies three specialized bodies of international law to China’s use of its maritime militia, including the law of the sea, the use of force by states, and the law of naval warfare. Ultimately, the article concludes that there are serious potential consequences and ramifications under international law arising from China’s maritime militia. Looking ahead, the article then provides a series of recommended options that other nations should consider in addressing these legal problems.

(Dis)solving the Chronological Paradox in Customary International Law: A Hartian Approach

2008 ◽  
Vol 21 (1) ◽  
pp. 129-148 ◽  
Author(s):  
David Lefkowitz
Keyword(s):  
International Law ◽  
Legal System ◽  
Resolution Function ◽  
Customary International Law ◽  
International Legal System ◽  
The Creation ◽  
The Law ◽  
Normative Standard

As traditionally conceived, the creation of a new rule of customary international law requires that states believe the law to already require the conduct specified in the rule. Distinguishing the process whereby a customary rule comes to exist from the process whereby that customary rule becomes law dissolves this chronological paradox. Creation of a customary rule requires only that states come to believe that there exists a normative standard to which they ought to adhere, not that this standard is law. What makes the customary rule law is adherence by officials in the international legal system to a rule of recognition that treats custom as a source of valid law. Confusion over this distinction arises because in the international legal system the same agents whose beliefs give rise to a customary rule are the legal officials whose adherence to the rule of recognition leads them to deem that rule legally valid. The proposed solution to the chronological paradox employs H.L.A. Hart’s analysis of the concepts of law and a legal system, and in particular, the idea of a rule of recognition. Yet Hart famously denies the existence of a rule of recognition for international law. Hart’s denial rests on a failure to distinguish between the ontological and authoritative resolution functions of a rule of recognition, however. Once such a distinction is drawn, it can be argued that customary international law rests on a rule of recognition that serves the ontological function of making customary norms legal, though not the authoritative resolution function of settling disputes over the alleged legality of particular norms.

The South China Sea

Asian Survey ◽  
2015 ◽  
Vol 55 (3) ◽  
pp. 455-477 ◽  
Author(s):  
Stein Tønnesson
Keyword(s):  
South China Sea ◽  
International Law ◽  
South China ◽  
Use Of Force ◽  
The South China Sea ◽  
Law Of The Sea ◽  
The South ◽  
Government Behavior ◽  
China Sea ◽  
The Law

The article looks at three ways in which international law has affected government behavior in the South China Sea. It has exacerbated disputes. It has probably curtailed the use of force. And it has made it difficult to imagine solutions that violate the law of the sea.

scholarly journals States’ Mouthpieces or Independent Practitioners? The Role of Counsel before the ICJ from the Perspective of the Legal Value of their Oral Pleadings

2021 ◽  
Vol 20 (1) ◽  
pp. 54-76
Author(s):  
Marco Longobardo
Keyword(s):  
International Law ◽  
State Responsibility ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
The Icj ◽  
Treaty Interpretation

Abstract This article explores the role of counsel before the International Court of Justice, taking into account their tasks under the Statute of the Court and the legal value of their pleadings in international law. Pleadings of counsel constitute State practice for the formation of customary international law and treaty interpretation, and they are attributable to the litigating State under the law on State responsibility. Accordingly, in principle, counsel present the views of the litigating State, which in practice approves in advance the pleadings. This consideration is relevant in discussing the role of counsel assisting States in politically sensitive cases, where there is no necessary correspondence between the views of the States and those of their counsel. Especially when less powerful States are parties to the relevant disputes, the availability of competent counsel in politically sensitive cases should not be discouraged since it advances the legitimacy of the international judicial function.

scholarly journals Theoretical and Practical Significance of the Issue of Maritime Delimitation in the Law of the Sea

2017 ◽  
Vol 6 (2) ◽  
pp. 125-129 ◽  
Author(s):  
Bojana Lakićević-Đuranović
Keyword(s):  
International Law ◽  
Practical Significance ◽  
Law Of The Sea ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Creation ◽  
The Law

This paper aims to show the significance of maritime delimitation in the Law of the Sea, as well as the contribution of international jurisprudence to the creation of the rules of maritime delimitation. The decisions of the International Court of Justice (ICJ) and the awards of arbitration tribunals are especially significant in the part of the Law of the Sea dealing with maritime delimitation. Based on the analysis of the principle of equity and the method of equidistance, the jurisprudence of the courts is shown to have established precedents and to have an irreplaceable role in the development of the international Law of the Sea, particularly in the segment of maritime delimitations.

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