The provisions on the use of force contained in the UN Charter apply to cyber operations conducted by states against other states even though the rules were adopted well before the advent of cyber technologies. This chapter argues that a cyber operation is a use of armed force when it entails the use of a ‘weapon’ accompanied by a coercive intention. This occurs not only in the case of cyber attacks designed to cause physical damage to property, loss of life or injury of persons, but also of cyber attacks employing capabilities that render ineffective or unusable critical infrastructures so to cause significant disruption of essential services, even when they do not materially damage those infrastructures. Indeed, the increasing digitalization of today’s societies has made it possible to cause considerable harm to states through non-destructive means: physical infrastructures can be incapacitated by affecting their operating systems, with consequent disruption of services but without the need to destroy them. An evolutive interpretation of Article 2(4) should take this into account. On the other hand, cyber exploitation carried out to collect information may be a violation of the sovereignty of the targeted state when it entails an unauthorized intrusion into the cyber infrastructure located on its territory, but not intervention and even less a use of force, as it lacks the coercive element and does not involve the use of a destructive payload capable of resulting in physical damage to property, loss of life, injury of persons, or malfunction of infrastructure.
While there is no lack of studies on the use of armed force by states in self-defence, its qualification as an ‘inherent right’ in article 51 of the Charter of the United Nations has received little scholarly attention and has been too quickly dismissed as having no significance. The present article fills this gap in the literature. Its purpose is not to discuss the limits to which article 51 or customary international law submit the exercise of the right of self-defence by states, but to examine what its ‘inherent’ character means and what legal consequences it entails. The article advances two main arguments. The first is that self-defence is a corollary of statehood as presently understood because it is essential to preserving its constitutive elements. The second argument is that the exercise of the right of self-defence must be distinguished from the right itself: it is only the former that may be delegated to other states or submitted to limitations under customary international law and treaty law. The right of self-defence, however, cannot be alienated and it takes precedence over other international obligations, although not over those specifically intended to limit the conduct of states in armed conflict or over non-derogable human rights provisions.
Daniel H Joyner and Marco Roscini
This article serves as a general substantive introduction to the special issue on the fundamental rights of states in international law. It introduces the concept in theoretical and doctrinal terms, and lays out the questions that will be addressed by the contributions to the special issue. These questions include: 1) What do attributes like ‘inherent’, ‘inalienable’ and ‘permanent’ mean with regard to state rights?; 2) Do they lead to identifying a unitary distinct category of fundamental rights of states?; 3) If so, what is their source and legal character?; 4) What are their legal implications, eg, when they come into conflict with other obligations of the right holder or with the actions of other states and international organisations?; and ultimately, 5) Is there still room in today's international law for a doctrine of ‘fundamental’ rights of states? The article reviews the fundamental rights of states in positive law sources and in international legal scholarship, and identifies the reasons for a renaissance of attention for this doctrine.