This article argues that the international legal scholarship grappling with cyber operations can be understood as a form of interventionism. Such literature reads as an attempt by international lawyers to intervene in the problems of the world by stretching existing legal frameworks like the United Nations Charter (UN Charter) to address what they see as dangerous legal gaps. This article sheds light on the four key argumentative patterns around which such scholarly interventionism is commonly articulated: problem-finding, administrativist camouflage, consequentialist bending and evidentiary pragmatism. In doing so, attention is paid to the limitations of interventionism, especially at the evidentiary stage. Mention is also made of the alternative argumentative patterns into which international lawyers are pushed because of the evidentiary challenges they face in relation to the management of cyber operations through the UN Charter. This article ultimately argues that many of the legal problems faced by those interventionist international lawyers who want to address problems of cyber operations through existing international legal frameworks are self-inflicted.

1. Prolegomena

For a great deal of the 20th century, most international lawyers thought that it behoves them to follow the path traced by international lawmakers1 and to concentrate their efforts on the administration of those regimes designed by international lawmakers. At the time, should a new international treaty come into existence, international lawyers would then scramble to interpret its provisions in abstracto (that is in the absence of any concrete dispute), anticipate their potential legal effects and extrapolate on the kind of disputes that could arise under such a treaty. These moments where international lawyers would see themselves as the technical administrators of those regimes designed by international lawmakers constitute a bygone era.2 Indeed, the creation of new regimes and the correlative transfers of technical and administrative responsibilities to international lawyers, whilst being common in the 20th century,3 have become scarce in the 21st century. Nowadays, international law is rarely propelled into new areas by international lawmakers and, thus, international lawyers rarely receive new express administrative and technical duties from international lawmakers. When this is the case, it is at the price of normative convolutions that make the new applicable international framework either barely legal4 or hardly operable.5 Short of conferral of any new express responsibilities, international lawyers have nowadays found themselves ostracised, their fate being reduced to either being the bored experts of overly discussed fields or the distant observers of phenomena deemed better addressed through non-legal regulatory tools. And yet, international lawyers in the 21st century cannot come to terms with such a miserable fate. In fact, they are not ready to sit idle. After all, when they look at the world, international lawyers find injustice and disorder raging outside, seemingly calling for them to intervene.

It is against this backdrop that one should read the extremely abundant and bourgeoning scholarship on cyber operations.6 Indeed, subject to a few exceptions, there has barely been any serious legislative initiative or express conferral of new technical and administrative responsibilities upon international lawyers in relation to cyber operations.7 As a result, international lawyers, notwithstanding other possible forms of (self-)regulation, have considered that cyber operations have been left dangerously unregulated—which, in their view, means unregulated by international law. In their eyes, such a situation is conducive to injustice and disorder. This is why, without awaiting any impulse or indication by international lawmakers, international lawyers have brashly seised themselves of the ‘cyber problem’ with a view to subjecting cyber operations to those regulatory instruments of which they are already the technical administrators. In other words, international lawyers, in the absence of any new international legal regime specifically addressing cyber operations, have come to feel a deontological duty to address such a legal vacuum with their own tools and ensure that cyber operations are subjected to international legal rules of which they are the experts.8 It is in this sense that it can be contended that the international legal scholarship on cyber operations is primarily interventionist in that it constitutes an endeavour to intervene in the problems of the world with a view to managing them.9

It must be acknowledged that interventionism in the international legal scholarship pertaining to cyber operations may not always be tangible and is occasionally buried in technical and doctrinal argumentation about how to interpret the law applicable to cyber activities. The assumption that international law regulates cyber operations is nowadays so much entrenched in the ethos of international lawyers that most of scholarly debates revolve around how—rather than whether—such activities are regulated by international law.10 Current discussions on how international law applies to cyber operations continue to be predicated on an interventionist posture whereby it is posited that such phenomenon falls within the scope of application of existing rules of international law.

This being said, it is obvious that unilateral interventions by international lawyers in the problems of the world, short of any express conferral of responsibility by international lawmakers, are not unprecedented. The belief in international law’s primacy as method of practical intervention to solve the problems of the world cannot be reduced to a 21st century attitude.11 Even the idealism that prevailed in international legal thought prior to the 20th-century technical resignation came with an interventionist dimension.12 Later, when they primarily thought of themselves as the technical administrators of those international regimes designed by international lawmakers, international lawyers also envisaged the possibility of international law being a programme for practical action or a method of resolving problems.13 Likewise, interventionism has long been common in judicial practice.14 And yet, international lawyers have never been so determined to intervene in the problems of the world beyond any explicit conferral of responsibilities as in the 21st century. The international legal scholarship on cyber operations is interventionism at its best.15

As this article will demonstrate, the interventionist attitude, as a descriptive category, remains a rather generic and overarching image for what is actually a complex and multi-layered methodological posture. Indeed, 21st century interventionism encapsulates various argumentative tweaks meant to ensure that contemporary phenomena, such as cyber operations, are subjected to existing international legal frameworks. Drawing on the literature on cyber operations, it is argued here that construing and using international law as a method of intervention in the social problems of the world entails four specific argumentative patterns. It is the aim of this article to describe and formulate a few observations about each of these argumentative moves by virtue of which international law is made a tool to manage the social problems of the 21st century. The four argumentative steps witnessed in interventionism in relation to the international legal scholarship on cyber operations examined in the subsequent sections are the following: problem-finding, administrativist camouflage, consequentialist bending and evidentiary pragmatism. The review of these various argumentative moves will show in particular that, in the case of cyber operations where authorships and causality are often unfathomable, the evidentiary component of interventionism gravely enfeebles interventionist legal argumentation. This is why, in the last section, it will be argued that if interventionist international lawyers want to avoid that their intervention in the cyber problems of the world founder at the evidentiary stage, they ought revisit the design of the argumentative moves on which their intervention is built.

Before depicting each of these argumentative steps in interventionism in relation to cyber operations, three preliminary remarks are warranted at this stage. First, claiming that international legal scholarship on cyber operations has a dominant interventionist flavour and that international lawyers grappling with questions of cyber operations are engaged in an interventionist enterprise will not come as a surprise for the international lawyers concerned. Although most of them will usually construe scholarly debates as a question of how (rather than whether) international law applies to cyber operations, there is a reasonable degree of self-awareness and many of such experts are prone to acknowledge their interventionist inclination.16 Yet, what they commonly fall short of acknowledging are the specific argumentative postures discussed in the following sections. Secondly, the following discussion is not meant to be fault-finding or judgmental. The point is certainly not that 21st century interventionism—and the argumentative moves it entails—ought to be repudiated. The point is more simply that interventionist international legal scholarship, as is illustrated by scholarly debates on cyber operations, usually follows the same four argumentative patterns. The merits—and limitations—thereof are not the primary object of this short study, subject to the evidentiary predicaments discussed in the last section. Thirdly, it must be highlighted that 21st century interventionism in relation to cyber operations is itself a multi-dimensional enterprise, and is witnessed in a variety of fields, including international humanitarian law,17 international criminal law,18 international human rights law,19 the law on the use of force,20 etc. The following discussion zeroes in only on the interventionism that informs the literature pertaining to the law on the use of force and which is geared towards the subjection of cyber operations to the regime of the United Nations Charter (hereafter UN Charter).

2. Problem-Finding: a New World with New Problems and New Demands on International Law

Interventionism always begins with problem-finding. It is only as long as a set of social problems are perceived in the current order that interventionism can take root in the consciousness of international lawyers. For 21st-century interventionist international lawyers, the necessity of intervention arises more specifically by virtue of their finding of cataclysmic changes in the world.21 Such a finding is usually accompanied by the finding that such changes have created a dangerous regulatory vacuum because they have not been matched by any international legal framework.

Such a descriptive preliminary move in contemporary interventionism is certainly not a neutral inclination. It constitutes the manifestation of a presupposition that disorder and injustice need to be addressed by international legal rules and that the absence of such rules brings about a risk of great harm.22 By the same token, this specific description of the world as undergoing cataclysmic changes is also the result of the projection of a series of pre-conceived ideas,23 such as the association of cyberspace with a physical space where cyber operations can be construed as some kind of hostilities24 or, alternatively, as weaponry of some sort.25 Whatever these presuppositions or preconceived ideas may be, the point is that, at a preliminary stage, scholarly interventionism presupposes the discovery of new changes, new problems and new demands for international law. The international legal scholarship on cyber operations is no different in this respect as it denotes both the same problem-finding attitude and a similar lamenting of the absence of specific international legal rules applicable to this new social problem of the world.26

3. Administrativist Camouflage: Law-Stretching Instead of Law-Making

According to the narrative around which interventionism is articulated, if the world has changed, created new problems and generated new demands on international law, somebody somewhere must meet these demands. Interestingly, very few international lawyers come to terms with the non-applicability or the inappropriateness of existing frameworks and limit themselves to requesting international lawmakers to take action.27 In their great majority, international lawyers with interventionist ambitions seek to substitute themselves for international lawmakers. This necessitates not only bemoaning the lack of any serious universal legislative initiative—whether in the form of a universal convention or a Security Council resolution—to design a new legal framework to address the new problems of the world, but also a finding that the immobility or stalemate in international law-making processes cannot be overcome. This move allows interventionist international lawyers to make a new twist in their narrative: unaddressed by international lawmakers, and unlikely to be addressed any time soon, the new problems of the world leave interventionist lawyers with no other choice than stepping in the fray and seising themselves of those social problems left unregulated by international lawmakers. The international legal scholarship on cyber operations is no different in this respect.28

Such moves are not without consequence. Once interventionist international lawyers have convinced themselves—and others—that the new problems of the world require that they substitute themselves for those lethargic lawmakers, they are confronted with two main argumentative choices. These two argumentative choices correspond to two different tactics to address the new problems of the world. On the one hand, they can decide to take on the role of lawmaker and design new rules with the hope that they will be embraced by global actors. On the other hand, they can choose to take the—supposedly more modest—role of proactive administrators of regimes already in place and intervene on the basis of the existing legal tools they have at their disposal.

It will not come as a surprise that these interventionist international lawyers usually prove rather wary of the first option and have come to favour the second interventionist tactic. Such wariness towards the explicit legislative option can be easily explained. First, interventionist international lawyers may feel that elevating themselves to international lawmakers makes them look like brazen or naïve militants. Secondly, they may fear that the paucity of their legitimacy to do so may seriously undermine the legitimacy—and hence the authority—of their intervention. Thirdly, such legislative strategy may contradict their own orthodox understanding of international law-making processes, according to which they are not supposed to hold any prominent law-making role.29 It is only if they venture to completely repudiate the recognised formal modes of law-making that interventionist international lawyers find the audacity to turn themselves into legislators of sort.30 Leaving this marginal tactic aside, interventionist international lawyers generally look at the legislative posture with suspicion and prefer to act as pro-active and creative administrators of those regimes already in place and for which their expertise is recognised and deemed legitimate. Importantly, the choice for an administrative posture, rather than a legislative one, bears upon what they can do with existing legal frameworks. Indeed, elevating themselves into the managers of contemporary problems, whilst keeping any explicit legislative role at bay, means that their actions will be limited to stretching existing legal frameworks and will fall short—at least on the surface—of making new formal legal rules.

The international legal scholarship on cyber operations usefully illustrates this preference for an administrative role, and thus for law-stretching. Subject to a few international lawyers toying with the easy customary law-making trick,31 most international lawyers grappling with cyber operations usually devote their energy and creativity to the stretching of existing rules to make them applicable to cyber violence. In particular, they seek to carve sophisticated reasoning, allowing them to build the claim that the UN Charter, and the existing rules on the use of force can be stretched in a way that makes them applicable to cyber operations.32

4. Bending Existing Frameworks: Consequentialist Reasoning and Effects-Based Analogies

Unsurprisingly, stretching existing legal frameworks necessitates that one takes some liberty with the orthodox interpretation thereof. Radical interpretive orthodoxy would obviously not allow interventionist international lawyers to extend the application of existing regimes to phenomena for which they were not originally designed. This is why interventionism usually requires taking some liberty with the traditional formal constraints of legal argumentation, for instance, in terms of interpretation.33 This is well illustrated by the international legal scholarship on cyber operations. Although witnessed in relation to other rules pertaining to the use of force and collective security,34 argumentative twists are essentially deployed in relation to the UN Charter. As far as this latter regime is concerned, it is self-evident that the men of Dumbarton Oaks and San Francisco could not anticipate the emergence of such a phenomenon.35 Hence, as these international lawyers would acknowledge, an ‘interpretive reorientation’36 is needed with a view to making those cyber activities they deem inadmissible fall within the remit of the Charter.37

It goes without saying that there exist a great variety of argumentative convolutions that allow the stretching of existing legal frameworks.38 They are too abundant to be reviewed here. What matters for the sake of the discussion carried out in this article is to stress the dominant consequentialist argumentation that informs the stretching of the UN Charter in international legal scholarship on cyber operations.39 Indeed, most authors40 build their claim that cyber operations fall under the UN Charter by virtue of their effects being analogous to those of the traditional forms of violence recognised by the UN Charter.41 In particular, cyber operations are said to fall in the remit of Articles 2.442 and 5143 of the UN Charter by virtue of the similarity of their effects with that of traditional ‘uses of force’ and ‘armed attacks’.44 Thanks to such a consequentialist reasoning, the actual factual effects of a cyber operations are thus made analogous to the effects of the types of violence traditionally falling within in the scope of the UN Charter, thereby stretching the latter in a way that makes it applicable to certain types of cyber operations.45

Any observer well versed in the law and practice of the UN will notice that the dominant consequentialist reasoning found in international legal scholarship on cyber operations blatantly contradicts other argumentative postures constructed in relation with the UN Charter over the last decades.46 In particular, it is conspicuous that the above mentioned effect-based bending of some of the key notions of the UN Charter is at loggerheads with the longstanding rejection of the claim that some severe forms of economic coercion can constitute a use of force for the sake of Article 2(4) of the UN Charter.47 Indeed, despite claims—mostly by least developed nations—that economic coercion can bear the same effects as a traditional use of force as envisaged by Article 2(4), this provision has always been interpreted as being alien to any economic form of violence.48 Such contradiction—which is sometimes acknowledged49—does not seem to have embarrassed interventionist international lawyers, despite them generally holding consistency as a supreme criterion of the validity of international legal arguments.50 This is probably not surprising as such consequentialist reasoning, albeit in contradiction with other argumentative moves made in relation to the UN Charter, is what allows these international lawyers to bend the Charter so as to allow cyber operations to fall within its remit and be subjected to its rules.

5. Pragmatic Evidentiary Standards: Facilitating the Deployment of the Newly Applicable Legal Frameworks

Interventionism would be left incomplete if, ultimately, the deployment of international lawyers’ newly applicable legal frameworks were frustrated by overly demanding and unwieldy evidentiary paradigms. This is why, interventionist international lawyers, once they have bended existing legal frameworks to make them applicable to the new problems of the world, must ensure that they can apply their newly applicable tools in an efficacious way. It must be highlighted that, from the perspective of interventionism, the importance of efficacious evidentiary paradigms is not limited to judiciary processes.51 Indeed, 21st-century interventionist enterprises do not primarily seek to subject global actors to the scrutiny of courts. Interventionism goes far beyond judicial management of contemporary problems. It is about providing a legal framework to limit and evaluate global actors’ behaviour, irrespective of the existence of a judicial evaluative process. In that sense, it is the credibility of interventionism as a whole that is dependent on the efficacy of evidentiary paradigms, and not only the occasional judicial consequences thereof.

As far as cyber operations are concerned, this ultimate step in interventionist reasoning calls for the design of criteria regarding the burden of proof and the standard of proof by virtue of which the cyber operations subject to the UN Charter can be evidenced in a plausible way. Indeed, should those cyber operations subject to the UN Charter fail to be proven, the intervention of international lawyers, despite having been carefully thought-through, would remain born dead.52

It will not come as a surprise that this ultimate step proves particularly sensitive and problematic in the case of the management of cyber operations, even more so when the authors or the victims of such cyber violence are non-state entities. The exact configuration of such operations, as well as the causal relationship between them and their actual effects usually remain difficult to establish. Likewise, the factual and legal status of the actors involved further obfuscates their disentanglement and frustrates their attribution to a legal subject.53 What is more, the little information available is usually concealed or distorted by the actors concerned, thereby further exacerbating the difficulty in evidencing the facts that are necessary for such cyber operations to fall under the newly applicable UN Charter.

In this regard it must be recalled that a wide array of options are available to those interventionist international lawyers when drawing the evidentiary part of their intervention. Indeed, there is no such a thing as a ready-made international law of evidence, which applies across the board and which international lawyers are expected to apply.54 The practice of international courts—both collectively and individually—is simply too heterogeneous to extract anything like a homogenous and common body of rules on evidence. All courts constantly adjust their approach to evidence to their liking and their needs.55 It is true that international lawyers have been prompt in seeking to extract some systemic tendencies from an otherwise very ad hoc and pragmatic practice on evidence.56 Yet, in both practice and scholarship, no consistent paradigm constraining such choices has coalesced,57 thereby leaving interventionist international lawyers with significant room for manoeuvre when carving the evidentiary part of their legal reasoning.

It is another truism to say that these ultimate evidentiary choices must primarily be made at the level of the burden of proof and standard of proof.58 At the level of the burden of proof, the question is whether or not to uphold the traditional position of onus incumbit actori vindicated by the International Court of Justice.59 The authors of the Tallinn Manual, for instance, have sided with this mainstream approach,60 whilst some authors have advocated a reversal of the burden of proofs in case of cyber operations at the expense of the actor exercising territorial control.61 This later position has been criticised for postponing evidentiary problems.62 At the level of the standard of proof, the choices for interventionist international lawyers are more numerous. As far as the practice is concerned, there is indeed a gigantic diversity of standards of proof to choose from: ‘indubitable proof’,63 ‘convincing evidence’,64 ‘clear evidence’,65 ‘weighty and convincing’,66 ‘fully conclusive’,67 ‘beyond any doubt’,68 ‘beyond reasonable doubt’,69 ‘preponderance of the evidence’,70 ‘prima facie evidence’,71 ‘clear and convincing evidence’72 and ‘objective assessment’.73 In the scholarship, other standards have been advocated, like the need for ‘sufficiently convincing’ evidence.74

Confronted with such a wide choice, interventionist international lawyers dealing with cyber operations may be tempted to maximise the efficacy of evidencing, for instance, by lowering the standard of proof,75 at least when the State having territorial control of the situation—whatever this means—fails to offer sufficient collaboration.76 They could also be tempted to evade evidentiary problems by outsourcing part or all evidentiary issues to experts of sorts—an option which, in disputes involving scientific controversies, has offered only short-lived relief to evidentiary questions.77 This article is not the place to indicate which evidentiary paradigms should be adopted in terms of burden of proof and standard of proof in the case of an intervention to manage problems of cyber operations. The point is simply that evidencing those facts that allow the application of the UN Charter to cyber operations constitutes the last—but most challenging—move in this type of interventionism. The failure to adopt an efficacious approach to evidence and, more basically, the failure to evidence the facts that are necessary to apply the UN Charter to those cyber operations deemed unacceptable, would simply jeopardise international lawyers’ intervention in the cyber problems of the world.

6. Interventionism at a Breaking Point

Drawing on the international legal scholarship on the UN Charter and cyber operations, the previous sections have sought to unearth four of the recurring argumentative patterns on which 21st-century interventionist scholarship is built: problem-finding, administrativist camouflage, consequentialist bending and evidentiary pragmatism. Such sophisticated argumentative moves are meant to support the claim that some types of cyber operations fall within the remit of the regime put in place by the UN Charter. Whether global actors will endorse this claim and go along with the subjection of cyber operations to the UN Charter is another question that does not need to be discussed here.78 At this concluding stage, it matters more to say a few words about some of the limitations of the scholarly interventionism in relation to cyber operations.

As the above discussion has shown, the argumentative moves supporting interventionism in relation to cyber operations, albeit sophisticated and supported by a majority of international lawyers as well as some States, come with important loopholes. It is especially the evidentiary component of scholarly interventionism in relation to cyber operations discussed in Section 5 above that reveals the most lethal cracks to this whole argumentative construction. It does not seem that the choice of the most efficacious evidentiary paradigms—whether in terms of burden of proof or standard of proof—will clinch all evidentiary controversies that may arise in the subjection of cyber activities to the UN Charter. This can be explained as follows. First, as was indicated above, the configuration, authorship and causality in the case of cyber operations will always remain very difficult to fathom. Secondly, the evidentiary choices made by interventionist international lawyers, contrary to the plasticity and determinacy that are given to them in the literature,79 will inextricably remain indeterminate and fluid,80 as well as the object of fluctuating interpretation.81 In that sense, evidencing those factual parameters that allow cyber operations to be apprehended by the UN Charter will most likely debilitate the sophisticated argumentative scheme discussed in the previous sections.

Emphasising the evidentiary limitations of interventionism in the case of cyber operations does not mean that interventionism is necessarily bound to disintegrate. A claim of subjection of cyber operations to the UN Charter made and heard by professionals and actors in the field already constitutes an intervention that can bear possible managerial effects. Rather, the point made here is that the evidentiary problems of the above interventionist reasoning are somewhat self-inflicted. Indeed, such ultimate stumbling blocks are themselves the result of the other argumentative choices—discussed in Sections 2–4—made by interventionist international lawyers. Evidentiary obstacles are the creation of international lawyers’ problem-finding, administrativist choice for stretching existing frameworks, and consequentialist bending of the UN Charter. Said differently, it is because they have chosen to intervene in the problems of cyber operations and address them through the categories of the UN Charter, such as ‘use of force’ or ‘armed attack’, that they find themselves struggling with the determination of such activities’ authors, configuration, causal dynamics, and ultimately questions of attribution.82 Had international lawyers made different argumentative choices to serve their interventionist ambitions, especially regarding the frameworks to which they seek to subject cyber operations, such evidentiary problems would not be as insurmountable as they currently are.

It is worth mentioning here some of the alternative argumentative choices that could be made to play down the evidentiary challenges with which interventionist international lawyers are currently confronted in relation to those cyber activities they want to subject to the UN Charter. Should interventionist international lawyers be ready to revisit the sophisticated argumentative construction that has been discussed above, they could, for instance, change the substantive (primary) rules on the use of force in a way that makes it irrelevant to attribute the impugned conduct to certain actors.83 Alternatively, they could alter the rules on attribution inherited from the law on state responsibility and design specific attribution mechanisms for cyber operations.84 Of these two possible changes in the argumentative patterns of contemporary interventionism in relation to cyber operations, only the alteration of the substantive rules of force seems realistic. First, it is not the first time that such primary rules on the use of force are re-interpreted in a highly creative way.85 Secondly, and most importantly, rules on attribution have continued to be deemed holy and untouchable by most international lawyers, thereby making a change thereof an unlikely choice by interventionist international lawyers.86

And yet, even the changes of the substantive rules on the use of force to accommodate the evidentiary challenges of cyber operations would not constitute an easy option for interventionist international lawyers. Venturing into a blatant change of the rules of the UN Charter would indeed push the interventionism witnessed in relation to cyber operations to a breaking point. In particular, it would compromise one of the fundamental pillars of contemporary interventionism, namely the abovementioned administrativist self-representation for stretching existing legal frameworks. It is submitted here that, of all the argumentative moves described in the previous sections, it is the administrativist posture and the accompanying choice for the stretching of existing frameworks that are the most defining features of contemporary interventionism in international legal thought. Although such an administrativist approach may only be a convenient smokescreen for what remains a norm-setting enterprise, doing away with this specific argumentative move would imperil interventionism as a whole. In other words, any argumentative change introduced to salvage contemporary interventionism in relation to cyber operations from a likely evidentiary debacle needs to preserve, at a minimum, the administrativist attitude of interventionism and continue to smother any law-making narrative. Should interventionism be no longer about creatively administering existing frameworks but about making new rules, it would risk being reduced to nothing more than crude militantism. And obviously, legal arguments that are perceived as militant have little chance to support any practical intervention in the social problems of the world, let alone those associated with cyber operations.

The author wishes to thank Duncan Hollis for his comments on an earlier draft and Anna Ledvinka for her assistance. The usual caveats apply.

1 For the sake of the narrative adopted here, the notion of international lawmaker is a fiction that constitutes a useful descriptive shortcut. On the myriad of actors involved in the multi-dimensional processes of law-making as well as the variety of descriptive accounts thereof, see J d’Aspremont, ‘Cognitive Conflicts and the Making of International Law: From Empirical Concord to Conceptual Discord in Legal Scholarship’ (2013) 46 Vanderbilt J of Transnational L 1119.
2 It has been claimed that this era has been preceded by an idealistic epoch. Indeed, at the end of the 19th century and the beginning of the 20th century, international lawyers did not consider them technicians but opinion-shapers, bearing a responsibility to dictate the ‘conscience of nations’. For some critical remarks, see A Carty, Philosophy of International Law (Edinburgh UP 2007) 9–14.
3 For an overview, see generally AK Singh, International Regimes and World Order (KK Publications 2014).
4 On the debate about the international legal nature of the 2015 Paris Agreement on Climate Change, see D Bodansky, ‘The Legal Character of the Paris Agreement: A Primer’ (Opinio Juris, 2 December 2015) <http://opiniojuris.org/2015/12/02/the-legal-character-of-the-paris-agreement-a-primer/>. J Pauwelyn, ‘A “Legally Binding Treaty” or Not? The Wrong Question for Paris Climate Summit’ (EJIL: Talk!, December 2015) <www.ejiltalk.org/a-legally-binding-treaty-or-not-the-wrong-question-for-paris-climate-summit/> accessed 31 July 2016.
5 On the tendency to adopt provisions with limited norm-creating character, see J d’Aspremont, ‘Softness in International Law: A Self-Serving Quest for New Legal Materials’ (2008) 19 EJIL 1075.
6 For some definitional considerations, see N Tsagourias, ‘The Legal Status of Cyberspace’ in N Tsagourias and R Buchan (eds), Research Handbook on International Law and Cyberspace (Elgar 2015) 13–29.
7 The Council of Europe 2001 Cybercrime Convention [2001] CETS No 185 <www.europarl.europa.eu/meetdocs/2014_2019/documents/libe/dv/7_conv_budapest_/7_conv_budapest_en.pdf>. The 2014 Draft African Union Treaty on Cyber Security and Personal Data Protection <http://pages.au.int/sites/default/files/en_AU%20Convention%20on%20CyberSecurity%20Pers%20Data%20Protec%20AUCyC%20adopted%20Malabo.pdf>. See also the work of the UN Group of Governmental Experts (GGEs) on Developments in the Field of Information and Telecommunications in the Context of International Security, and especially its 2013 Report where it agreed that ‘International law, and in particular the Charter of the United Nations, is applicable and is essential to maintaining peace and stability and promoting an open, secure, peaceful and accessible ICT environment.’ UNGA ‘GGEs on Developments in the Field of Information and Telecommunications in the Context of International Security' (9 September 2013), UN Doc A68/156/Add 1. In 2015, the GGE reaffirmed its earlier statement. UNGA ‘GGEs on Developments in the Field of Information and Telecommunications in the Context of International Security' (22 July 2015) UN Doc A/70/174 <www.un.org/ga/search/view_doc.asp?symbol=A/70/174> accessed 31 July 2016. I owe the account of these latest developments to an exchange with Duncan Hollis.
8 Such deontology is not unprecedented. A good precedent thereof is offered by Jenks. W Jenks, ‘Economic and Social Change and the Life of the Law’ (1973) 138 Collected Courses 494. See the remarks of J d’Aspremont, ‘Jenks’ Ethic of Responsibility for the Disillusioned International Lawyer’ (2016) 27 EJIL (forthcoming).
9 In that sense, managerialism (ie the pursuit of a position to manage the problems of the world) is the rationale of interventionism. The idea of ‘managerialism’ in international legal thought has been coined by M Koskenniemi, ‘The Politics of International Law—20 Years Later’ (2009) 20 EJIL 7. For some remarks on contemporary managerialist enterprises, see J d’Aspremont, ‘Managing Change in International Law and the Dream of the Managerialist International Lawyer’ (EJIL: Talk! 25 September 2015) <www.ejiltalk.org/managing-change-in-international-law-and-the-dream-of-the-managerialist-international-lawyer/> accessed 31 July 2016.
10 In that sense, we could speak about a second generation of scholarship about international law and cyber operations. This is a point I owe to an exchange with Duncan Hollis. On the question whether international law is up to the task when it comes to regulating cyber operations, see DB Hollis, ‘Why States Need an International Law for Information Operations’ (2007) 11 Lewis & Clark L Rev 1023. With a special emphasis on the UN Charter, see also the remarks of J Maogoto, Technology and the Law on the Use of Force: New Security Challenges in the Twenty-First Century (Routledge 2014) 9–17, 67 and 92.
11 For some general remarks, see N Walker, ‘Beyond Boundary Disputes and Basic Grids: Mapping the Global Disorder of Normative Orders’ 6 (2008) Int J of Constitutional Law 373, 374.
12 This is one of the central theses defended by E Jouannet, The Liberal-Welfarist Law of Nations: A History of International Law (CUP 2012).
13 W Jenks, Law, Freedom and Welfare (Stevens & Sons 1963) 92. Jenks (n 8) 492 and 496. It is interesting to note that Philip Jessup has been seen as a pioneer for such manageralist approaches to international law. Jenks (n 8) 463, 488 and 497. On this aspect of Jenks’ work, see d’Aspremont (n 8).
14 J Resnik, ‘Managerial Judges’ (1982–1983) 96 Harvard Law Review 376. For some more specific remarks on international courts, see A von Bogdandy and I Venzke, ‘On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority’, (2012) Amsterdam Center for International Law No 2012-10, Postnational Rulemaking Working Paper No 2012-05 <http://ssrn.com/abstract=2084079>; K Alter, ‘The Multiple Roles of International Courts and Tribunals: Enforcement, Dispute Settlement, Constitutional and Administrative Review’ (2012), Faculty Working Papers 212 <http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/212> accessed 31 July 2016.
15 Another famous example is found in the prolific literature on Global Administrative Law. B Kingsbury, N Krisch and R Stewart, ‘The Emergence of Global Administrative Law’ (2005) 68 Law and Contemporary Problems 15. B Kingsbury, ‘The Concept of “Law” in Global Administrative Law’ (2009) 20 EJIL 23. Global constitutionalism could also be read as a managerial enterprise. See the remarks of J d’Aspremont, ‘International Constitutionalism, Legal Forms, and the Need for Villains’ in A Lang and W Antje (eds) Oxford Handbook on International Constitutionalism (OUP 2016).
16 Tsagourias (n 6) 14; M Roscini, Cyber Operations and the Use of Force in International Law (OUP 2014) 19 (‘It is this book’s contention that existing treaty and customary norms can be extended to cyber operations by means of interpretation even though the relevant treaties and customs do not expressly contemplate them’).
17 Within a very prolific literature, see M Schmitt (ed), Tallinn Manual on the International Law applicable to Cyber Warfare: prepared by the International Group of Experts at the Invitation of the NATO Cooperative Cyber Defence Centre of Excellence (CUP 2013); N Tsagourias, ‘The Tallinn Manual on the International Law Applicable to Cyber Warfare: A Commentary on Chapter II – the Use of Force’ (2012) 15 YB of Int Humanitarian Law 19 T Gill, ‘International Humanitarian Law Applied to Cyber-Warfare: Precautions, Proportionality and the Notion of ‘Attack’ under the Humanitarian Law of Armed Conflict’ in Tsagourias and Buchan (eds) (n 6) 366–79; D Fleck, ‘Searching for International Rules Applicable to Cyber Warfare: a Critical First Assessment of the New Tallinn Manual’ (2013) 18 J of Conflict and Security L 331–51; P Ducheine, Cyber Warfare: Critical Perspectives (Asser Press 2012); M Roscini, ‘World Wide Warfare: Jus ad Bellum and the Use of Cyber Space’ (2010) 14 Max Planck YB of United Nations L 85–130; L Arimatsu, ‘Classifying Cyber Warfare’ in Tsagourias and Buchan (eds) (n 6) 326–42; Bannelier-Christakis, ‘Is the Principle of Distinction Still Relevant in Cyberwarfare?’ in Tsagourias and Buchan (eds) (n 6) 343–65.
18 K Ambos, ‘International Criminal Responsibility in Cyberspace’ in Tsagourias and Buchan (eds) (n 6) 118–43; B Saul and K Heath, ‘Cyber Terrorism’ in Tsagourias and Buchan (eds) (n 6) 147–67. For some critical remarks, see the contributions of L van den Herik, E van Sliedregt and M Vagias to this symposium.
19 DP Fidler, ‘Cyber Space and Human Rights’ in Tsagourias and Buchan (eds) (n 6) 94–117; D PoKempner, ‘Cyberspace and State Obligations in the Area of Human Rights’ in K Ziolkowski and others (eds), Peacetime Regime for State Activities in Cyberspace: International Law, International Relations and Diplomacy (NATO Cooperative Cyber Defence Centre of Excellence 2013) 239–60.
20 See the literature cited throughout this article on cyberattacks and the jus ad bellum.
21 It must be acknowledged that such a descriptive move to identify changes and portray them as disastrous is not totally ground breaking. Every generation of scholars—especially those who contemplate an intervention of international law—are driven to put forward an image of cataclysmic change on-going in the current order and requiring intervention. P Allott, ‘Language, Method and the Nature of International Law’ (1971) 45 British YB of Int L 79, 122. For an earlier illustration, see Jenks (n 13) 11, 33–43; 141–43; Jenks (n 8) 466–68.
22 On the various dimensions of enthusiasm for the ‘international’ see DW Kennedy, ‘A New World Order: Yesterday, Today and Tomorrow’ (1994) 4 Transnational L and Contemporary Problems 329, 336.
23 This is obviously a tendency that goes beyond interventionism. N Onuf, ‘Law-Making in the Global Community: A Working Paper’ in N Onuf (ed), International Legal Theory (Routledge 1974) 63, 88; P Allott, ‘The Idealist’s Dilemma: Re-Imagining International Society’ (EJIL: Talk!, 2014) J Crawford, ‘International Law as Discipline and Profession’ (2012) 106 ASIL Proceedings 16 (‘We are collectively part of the makers of that world’); J d’Aspremont, Epistemic Forces in International Law (Elgar 2015) 169–71.
24 See the critical remarks of C Focarelli, ‘Self-defence in Cyber-Space’ in Tsagourias and Buchan (eds) (n 6) 255–83, 281 (‘Cyber space is imagined as a battle space similar to physical space in which hostilities can be conducted similarly to acts performed in physical space’). For a critique of the projection of existing boundary-based international law to the cyber sphere, see DB Hollis, ‘Re-Thinking the Boundaries of Law in Cyberspace: A Duty to Hack’ in JD Ohlin, K Govern and C Finkelstein, Cyberwar (OUP 2015) 129–74. Maogoto (n 10) 17, 67 and 92.
25 For an illustration, see M Roscini, ‘Cyber Operations as Use of Force’ in Tsagourias and Buchan (eds) (n 6) 233, 238–40; M Schmitt, ‘Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework’ (1999) 37 Columbia J of Transnational L 885, 934.
26 M Schmitt, ‘Introduction’ in Tsagourias and Buchan (eds) (n 6) 1–2; M Schmitt, ‘International Law in Cyberspace: The Koh Speech and Tallinn Manual Juxtaposed’ (2012) 54 Harvard Int L J 13, 36–37; Tsagourias (n 6); Roscini (n 17) 87.
27 For some notable exceptions, see DB Hollis, ‘An e-SOS for Cyberspace’ (2011) 52 Harvard Int L J 373 (it is notable that his idea of a ‘duty to assist’ has found some support among the members of the GGEs, UNGA ‘GGEs on Developments in the Field of Information and Telecommunications in the Context of International Security’ (22 July 2015) UN Doc A/70/174 <www.un.org/ga/search/view_doc.asp?symbol=A/70/174> accessed 31 July 2016. Saul and Heath (n 18) 163–67; Focarelli (n 24) 282; SJ Shackelford, ‘From Nuclear War to Net War: Analogizing Cyber Attacks in International Law’ (2009) 27 Berkeley J of Int L 192.
28 Schmitt, ‘Introduction’ (n 26); Roscini (n 17) 88.
29 See the remarks of J Kammerhofer, ‘Law-Making by Scholarship? The Dark Side of 21st Century International Legal “Methodology”’ in James Crawford and others (eds), Select Proceedings of the European Society of International Law, vol 3 (Hart Publishing 2012) 115–26.
30 This is the case of Global Administrative Law. On this aspect, see J d’Aspremont, ‘Droit Administratif Global et Droit International’ in C Bories (ed), Le Droit Administratif Global (Global Administrative Law and International Law, 13 February 2012) <http://ssrn.com/abstract=2004699 > accessed 31 July 2016.
31 There is hardly anyone advocating the idea of an existing customary prohibition of some forms of cyber operations. Yet, most authors contend that it only is a matter of time until such a customary rule can be ascertained. A D'Amato, ‘International Law, Cybernetics, and Cyberspace’ (2002) 76 Int L Studies 76, 59–73, 69; Schmitt (n 25) 936; Roscini (n 17) 123–29. For a more conservative position, see SJ Shackelford (n 27) 219.
32 Roscini (n 16); Tsagourias (n 6) 14; Schmitt, ‘Introduction’ (n 26); Schmitt (n 25) 934.
33 For another example, see Jenks (n 13) 48 and 58.
34 On the application of the principle of due diligence to cyber operations, see Constantine Antonopolous, ‘State responsibility in cyberspace’ in Tsagourias and Buchan (eds) (n 6) 54, 65–70; K Bannelier, ‘Cyber Diligence: A Low-Intensity Due Diligence Principle for Low-Intensity Cyber Operations’ (2014) 14 Baltic J of Int L, 23–39; M Schmitt, ‘In Defense of Due Diligence in Cyberspace’ (2015) 125 Yale L J Forum 68. On the application of the prohibition of interference in internal affairs, see Roscini (n 25) 233–54, 250–52 or Schmitt (n 17) 44. On due diligence in cyberspace see in this volume R Buchan, ‘Cyberspace, Non-State Actors and the Obligation to Prevent Transboundary Harm’.
35 Roscini (n 25) 233–54, 233.
36 The expression is from M Waxman, ‘Cyber-Attacks and the Use of Force: Back to the Future of Article 2(4)’ (2011) 36 Yale J of Int L 421, 437.
37 For an overview of the various interpretive options which have been resorted to in the literature, Roscini (n 25) 233–54. C Vossen, ‘Cyber Attacks Under the United Nations Charter. Critical Reflections on Consequentialist Reasoning’ (SSRN, 11 August 2014) <http://ssrn.com/abstract=2594675> accessed 31 July 2016.
38 On the empowering character of the rules on interpretation, see I Venzke, How Interpretation Makes International Law (OUP 2012) ch 1 and 2. J d’Aspremont, ‘The Multidimensional Process of Interpretation: Content-Determination and Law-Ascertainment Distinguished’ in A Bianchi, D Peat and M Windsor (eds), Interpretation in International Law (OUP 2015) 111–29.
39 For a similar account of the legal reasoning that these scholars resort to, see Focarelli (n 24) 281 (‘An effect-based interpretive approach is often preferred to others in order to conclude that certain cyber operations are “equivalent” to kinetic operations, either “use of force” or “armed attack” or “armed conflict” purposes, and are therefore subject to the same legal regime’). Vossen (n 37).
40 This also seems to be the position of many states. The White House, International Strategy for Cyberspace: Prosperity, Security and Openness in a Networked World (Washington 2011) 9. See the statements of State officials reported by Roscini (n 25) 233–54, 234–35 or in Roscini (n 16) 21–22. See also the statements cited by Schmitt, ‘Introduction’ (n 26) 2. See also the positions of states expressed within the UN ‘GGEs on Developments in the Field of Information and Telecommunications in the Context of International Security’. See especially (9 September 2013) UN Doc A68/156/Add 1, and (22 July 2015) UN Doc A/70/174 <www.un.org/ga/search/view_doc.asp?symbol=A/70/174> accessed 31 July 2016.
41 It is true that sophisticated and nuanced forms of consequentialist reasoning that seek to reconcile instrument-based and effect-based approaches can be found in the literature. Roscini (n 25) 233–54. In my view, such constructions remain primarily consequentialist by virtue of their tautological structure. Indeed, for Roscini, the instrument is a weapon as long as its effects are those of a weapon (‘it is the instrument used that defines armed force, but the instrument is identified by its (violent) consequences’).
42 For some examples, see R Buchan, ‘Cyber Attacks: Unlawful Uses of Force or Prohibited Interventions’ (2012) 17 J of Conflict and Security L 211, 212; Roscini (n 25) 233–54; R van Steenberghe, La Légitime Défense en Droit International Public (Larcier 2012) 201–02; Y Einstein, War, Aggression, and Self-Defence (CUP 2010) 88. This is also the position adopted in the Tallinn Manual: ‘A cyber operation constitutes a use of force when its scale and effects are comparable to non-cyber operations rising to the level of a use of force.’ Schmitt (n 17) 47; Schmitt (n 25); Waxman (n 36) 421; I Couzigou, ‘The Challenges Posed by Cyber Attacks to the Law on Self-Defence, 4 ESIL Conference Paper Series’ (2014) ESIL Conference Paper No 16/2014.
43 M Schmitt, ‘Cyber Operations and the Jus ad Bellum Revisited’ (2011) 56 Villanova L Rev 569, 588; M Schmitt, ‘“Attack” as a Term of Art in International Law; The Cyber Operations Context in, C Czosseck, R Ottis and K Ziolkowski (eds), Proceedings of the 4th International Conference on Cyber Conflict (NATO CCD COE Publications 2012) 283–93, 283; N Tsagourias, ‘Cyber attacks, Self-Defence and the Problem of Attribution’ (2012) 17 J of Conflict and Security L 231; WH Boothby and others, ‘When is a Cyber attack a Use of Force or an Armed Attack?’ (2012) 82 IEEE Computer Society 82, 83; M Waxman, ‘Self-defensive Force against Cyber Attacks: Legal, Strategic and Political Dimensions’ (2013) 89 Int L Studies 109; Couzigou (n 42). For some scepticism about this dominant interpretation, see Focarelli (n 24) 281–83.
44 See for some illustrations, Buchan (n 42) 212; HH Dinniss, Cyber Warfare and the Laws of War (CUP 2012) 74; Waxman (n 43); Tsagourias (n 43) 229–44; Schmitt (n 25) 935.
45 For some philosophical reflections on the association between cyberwar and war, see L May, ‘The Nature of War and the Idea of “Cyberwar”’ in J David Ohlin, K Govern and C Finkelstein (eds), Cyberwar, Law and Ethics for Virtual Conflicts (OUP 2015) 3–15.
46 Carlo Focarelli has also pointed out the definitional inconsistencies of such consequentialist reasoning. Focarelli (n 24) 281–82.
47 See the observation of Jackson Maogoto according to whom the inclusion of cyber operations within the scope of Art 2(4) can lead to a ‘co-optation’ of economic coercion as a use of force for the sake of the Charter. Maogoto (n 10) 55.
48 JA Delanis, ‘“Force” Under Article 2(4) of the United Nations Charter: The Question Of Economic and Political Coercion’ (1979) 12 Vanderbilt J of Transnational L 101–31; I Seidl-Hohenveldern, ‘The United Nations and Economic Coercion’ (1985) 18 Revue Belge de Droit International, 9–19; C Parry, ‘Defining Economic Coercion in International Law’ (1977) 12 Texas Int L J, 1–4.
49 See e.g. Waxman (n 36) 437.
50 On this inclination, see J Beckett, ‘The Politics of International Law – Twenty Years Later: A Reply’ (EJIL: TALK!, 19 May 2009) <www.ejiltalk.org/the-politics-of-international-law-twenty-years-later-a-reply/> accessed 31 July 2016.
51 See the remarks of D Kritsiotis, ‘Questions of Fact and Evidence and the Laws of Force’ (2006) ASIL Proceedings 39.
52 It is noteworthy in this respect that, within the ‘GGEs on Developments in the Field of Information and Telecommunications in the Context of International Security’, there was an effort by Russia to promote an evidentiary standard for accusations. The 2015 report of the Group states that ‘States must meet their international obligations regarding internationally wrongful acts attributable to them under international law. However, the indication that an ICT activity was launched or otherwise originates from the territory or the ICT infrastructure of a State may be insufficient in itself to attribute the activity to that State. The Group noted that the accusations of organizing and implementing wrongful acts brought against States should be substantiated.’ See UNGA ‘GGEs on Developments in the Field of Information and Telecommunications in the Context of International Security (22 July2015) UN Doc A/70/174, para 28(f) <www.un.org/ga/search/view_doc.asp?symbol=A/70/174> accessed 31 July 2016.
53 Tsagourias (n 43); Antonopolous (n 34) 55–71; ME O’Connell and L Arimatsu, ‘Cyber Security and International Law’ (Chatham House International Law Meeting Summary, 29 May 2012) 7; Roscini (n 16) 33–40; Maogoto (n 10) 17.
54 For some critical remarks on the quest for common rules on evidence, see S De Smet, ‘Review of Anna Riddell and Brendan Plant, Evidence before the International Court of Justice’ (2009) 68 Cambridge L J 666; M Roscini, ‘Evidentiary Issues in International Disputes Related to State Responsibility for Cyber Operations’ (2015) 50 Texas Int L J 233, 249. On the application of the ICJ’s rules of evidence to cyber operations see in this volume M Roscini, ‘Digital Evidence as a Means of Proof before the International Court of Justice’ J of Conflict and Security L.
55 This has been extensively discussed in relation to the ICJ. A Riddell and B Plant, Evidence before the International Court of Justice (British Institute of International Law and Comparative Law 2009) 416; M Kamto, ‘Les moyens de prevue devant la Cour internationale de Justice à la lumière de quelques affaires récentes portées devant elle’ (2006) 49 German YB of Int L 259; G Niyungeko La preuve devant les jurisdictions internationales (Bruylant 2005); MT Grando, Evidence, Proof, and Fact-Finding in WTO Dispute Settlement (OUP 2009) 90–91. S Halink, ‘All Things Considered: How the International Court of Justice Delegated its Fact-Assessment to the United Nations in the Armed Activities Case’ (2008) 40 NYU J of Int L and Politics 13, 21–25; M Kazazi, Burden of Proof and Related Issues: A Study on Evidence Before International Tribunals (Nijhoff 1996); Roscini ‘Evidentiary Issues in International’ (n 54) 248.
56 Some judges have gone as far as developing ‘sliding scales’ according to the gravity of the charges that need to be proved. Case Concerning Application of the Convention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) [2007] ICJ Rep 43, para 210; For some critical remarks, see A Gattini, ‘Evidentiary Issues in the ICJ’s Genocide Judgment’ (2007) 5 J of Int Crim Justice 899–904. The ECHR in Velasquez Rodriguez Case, Judgment, Inter-American Court of Human Rights Series C No 4 (29 July 1988) 136, para 134; Fairen-Garbi and Solis Corrales v Honduras, Judgment, Inter-American Court of Human Rights Series C No 6 (15 March 1989) 124, para 136. On the possible misinterpretation of the standard of proof of the Inter-American Court because of translation-related issues, see A Paul, ‘In Search of the Standards of Proof Applies by the Inter-American Court of Human Rights’ (2012) 55 Revisita IIDH 57, 66–69.
57 This has often fuelled the frustration of judges and scholars. Separate Opinion of Higgins in the Case Concerning Oil Platforms (Islamic Republic of Iran v United Stated of America) (Judgment) [2003] ICJ Rep 161 233–35, para 30. R Teitelbaum, ‘Recent Fact-Finding Developments at the International Court of Justice’ (2007) 6 L and Practice of Int Courts and Tribunals 119, 128.
58 On questions of methods of proof, see Roscini, ‘Evidentiary Issues in International’ (n 54).
59Corfu Channel Case (United Kingdom v Albania) [1949] ICJ Rep 4, 18. See the remarks of A Gattini (n 56) 89; Roscini, ‘Evidentiary Issues in International’ (n 54) 243–44.
60 See the rr 7–8 of the Tallinn manual (n 17).
61 This has been suggested by RA Clarke and R Knake, Cyber War: The Next Threat to National Security and What to do about It (Ecco/Harper Collins 2010) 249. For a rejection of that position, see Roscini, ‘Evidentiary Issues in International’ (n 54) 245.
62 ibid 268.
63 See the Kelly Case (UK-Venezuala Claims Commission) (1903) IX RIAA 400.
64Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Judgment) [1986) ICJ Rep 14, paras 24, 29 , 62, 109; Armed Activities on the Territory of the Congo (Democratic Republic pf the Congo v Uganda) (Judgment) [2005] ICJ Rep 168, 2005, paras 72, 91, 136.
65Nicaragua ibid, paras 24, 29, 62, 109.
66Congo v Uganda (n 64) paras 72, 91, 136.
67Genocide (n 56) para 209 (for claim involving charges of exceptional gravity).
68 This is the standard used by the ICJ in the Genocide case in relation to demonstrating the full knowledge of the intent to perpetrate genocide by the leaders of the army of the Republic Srpska for the sake of complicity within the meaning of Art III(e) of the Genocide Convention. Genocide (n 56) para 422.
69Ireland v United Kingdom (1978) Series A no 25, 65, para 161; Cyprus v Turkey, ECHR 2001-IV 36, para 115. On the standard of proof of the ECtHR, see the remarks of M Ambrus, ‘The European Court of Human Rights and Standards of Proof in Religion Cases’ (2013) 8 Religion and Human Rights 2, 107–37.
70 This is the standard that some scholars have extracted from WTO panel decisions. For such an interpretation, see J Waincymer, WTO Litigation: Procedural Aspects of Formal Dispute Settlement (Cameron 2002) 568. This also seems to be the standard adopted by the Iran–US Claims Tribunal. Dadras International and PER-AM Construction Corporation v The Islamic Republic of Iran, and Tehran Redevelopment Company (1995) 31 Iran–USCTR 127, para 123. See the remarks of M Aghahosseini and Z Mousavi, ‘The Burden and Standard of Proof in the Case Law of the Iran-United States Claims Tribunal, The Global Community’ (2007) 1 YB of Int L and Jurisprudence.
71 For such an interpretation of WTO panels practice, see P Mavroidis, ‘Development of WTO Dispute Settlement Procedures Through Case-law’ in F Ortino and E-U Petersmann (eds), The WTO Dispute Settlement System 1995-2003 (Studies in Transnational Economic Law, vol 18, Kluwer 2004) 153.
72Trail Smelter Case (US v Canada) (1963-1965) 3 RIAA 1905, 1941. Prisoners of War (Eritrea's Claim 17) (Partial Award) (2003) Eritrea-Ethiopia Claims Commission, para 46.
73 Appellate Body Report, EC-Hormones, paras 117. For a discussion, see L Gruszczynski, ‘Standard of Review and Scientific Evidence in WTO Law and International Investment Arbitration’ in L Gruszczynski (ed), Deference in International Courts and Tribunals (OUP 2014) 156–57.
74 C Greenwood, ‘International Law and the United States, Air Operation Against Libya’, (1987) 89 West Virginia L Rev 933, 935.
75 For a rejection of such a lowering, see Roscini, ‘Evidentiary Issues in International’ (n 54) 251.
76 This was the argument of Bosnia Herzegovina in the Bosnian Genocide case. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia v FRY) (Reply of Bosnia Herzegovina) [1988] ICJ Rep, para 22.
77 It is well known that the outsourcing to experts only postpones the problems as it can lead to the production of contradictory expert reports whose plausability will still need to be evaluated, weighted and ranked. J d’Aspremont and MM Mbengue, ‘Strategies of Engagement with Scientific Fact-Finding in International Adjudication’ (2014) 5 J of Int Dispute Settlement 240.
78 It seems that States have been amenable to the idea of a subjection of cyber activities to the UN Charter. The statements of States officials reported by Roscini (n 25) 233–54, 234–35 or in Roscini (n 16) 21–22; The White House (n 40); See the statements cited by Schmitt, ‘Introduction’ (n 26) 2. See also the positions of states expressed within the UN ‘GGEs on Developments in the Field of Information and Telecommunications in the Context of International Security’. See especially (9 September 2013) UN Doc A68/156/Add 1 and (22 July 2015) UN Doc A/70/174 <www.un.org/ga/search/view_doc.asp?symbol=A/70/174> accessed 31 July 2016.
79 Roscini, ‘Evidentiary Issues in International’ (n 54) 248–54.
80 CF Amerasinghe, Evidence in International Litigation (Nijhoff 2005) 240.
81 In practice, we see that even if a Court claims to stick to one single and uniform narrative, it would still enjoy considerable leeway and denotes a great variety of approaches. P Kinsch, ‘On the Uncertainties Surrounding the Standard of Proof in Proceedings before International Courts and Tribunals’ in S Bariatti and G Venturini (eds), Liber Fausto Pocar (Giuffrè 2009) 438.
82 On problems of causation in the context of cyber operations, see Ohlin (n 24) 37–54.
83 For instance, one could think of tweaking the primary rules to play down the role of attribution, or at least to play down the need to find some kinship with a state and allow self-defence against those non-state actors that contributed to the cyberattack. Tsagourias (n 43). The necessity to adjust the primary rules on the use of force is regularly acknowledged. M Schmitt, ‘The Law of Cyber Warfare: Quo Vadis?’ (2014) 25 Stanford L & Policy Rev 269–99; Couzigou (n 42).
84 P Margulies, ‘Sovereignty and Cyber Attacks: Technology’s Challenge to the Law of State Responsibility’ (2013) 14 Melbourne J of Int L 1; M Schmitt and L Vihul, ‘Proxy Wars in Cyberspace: The Evolving International Law of Attribution’ (2014) 1 Fletcher Security Rev 54.
85 The literature is prolific on this question, especially in relation to self-defence. R Van Steenberghe, La légitime défense en droit international public (Larcier 2012); Raphael van Steenberghe, ‘State Practice and the Evolution of the Law of Self-Defence: Clarifying the Methodological Debate’ (2015) 2 J on the Use of Force and Int L 81–96; S Ratner, ‘Self-Defence against Terrorists: the Meaning of Armed Attack’ in L van den Herik and N Schrijver (eds), Counter-Terrorism Strategies in a Fragmented International Legal Order: Meeting the Challenges (CUP 2013) 334–55; Bin Cheng, ‘Pre-Emptive or Similar Type of Self-Defense in the Territory of Foreign States’ (2013) 12 Chinese J of Int L 1–8; C Tams, ‘Light Treatment of a Complex Problem : the Law of Self-Defence in the Wall Case’ (2005) 16 EJIL 963–78.
86 For an example, see Roscini (n 17) 99–101; Roscini (n 16) 33–40; Tsagourias (n 43) 229–44. For a few exceptions and the idea that rules on attribution should be adjusted, see, however, Shackelford (n 27) 235; Margulies (n 84) 496; J Kulesza, ‘State Responsibility for Cyberattacks on International Peace and Security’ (2009) 29 Polish YB of Int L 139.