Under Art. When opinio juris exists and is consistent with nearly all state practice, customary international law emerges. Inter alia, enforcement actions under art. Footnote 39 The ILC, too, has recently confirmed that, in all fields of international law, ‘t[o] determine the existence and content of a rule of customary international law, it is necessary to ascertain whether there is a general practice that is accepted as law (opinio juris)’. Indeed, in 2015 the Group of Governmental Experts, established by the UN General Assembly for assessing Developments in the Field of Information and Telecommunications in the Context of International Security – affirmed in its official Report that “(t)he use of ICTs for terrorist purposes, beyond recruitment, financing, training and incitement, including for terrorist attacks against ICTs or ICT-dependent infrastructure, is an increasing possibility that, if left unaddressed, may threaten international peace and security”. avoiding collateral effects, also in terms of international exposure. 52 c.p. [14] Simma B., Khan D., Nolte G., Paulus A., cit., § 10. Quick Reference. Among actions UNSC can adopt “(t)he …‘complete or partial interruption of… postal, telegraphic, radio and other means of communication’ …is especially important in the cyber context” [18], even if historically UNSC avoided from intervening in the field of communications because of the involvement of human rights’ protection (e.g. Indeed: “(t), Actually, practice has illustrated over the years that the notion of threat to peace can be extended to any violation of an essential obligation for the safeguarding of the fundamental interests of the international community, such as nuclear proliferation, So, considering the wide range of discretionary power UNSC enjoys in ascertaining the existence of a threat to peace and that to date cyber-operations consist in one of the most important reasons of the contemporary international in-stability, the concept of threat to peace seems to may embrace also some ICT misuses, It is incontrovertible that a threat to peace occurs in case of imminent attacks preluding an armed conflict, as well as in the case of post-conflict situations when there are real risks of a “renewed eruption of violence”, but looking at UNSC practice also weapons proliferation, So due to the broad margin of interpretation of the concept of threat to peace as well as the discretion UNSC enjoys under Art. 39 of the United Nations Charter. 39 of the United Nations Charter. 98
CCD COE Publications, 2010, Tallinn, Estonia. Indeed, UNSC practice shows that the declaration of a threat to peace is not anchored to the fact that a violation of international law occurred because the rationale of the UN collective security system is to provide preventive tools for the maintenance of international peace and not to react against violations of international law[14]. 41 are numerous and not limited to those listed in the Charter, e. g. they can be: embargoes, trade restrictions, interruption of means of communication, severance of diplomatic relations, creation of special Tribunals, but also targeted sanctions against private individuals deemed responsible for a threat to peace. the s. c. “effect based approach”. In ascertaining the existence of a threat to peace the Security Council enjoys considerable discretion, being able to include also situations not necessarily characterized by the use of military force. Actions under Art. In international law, acceptance of a practice as sufficient to create legal obligations. However, if a theory of cyber threats to peace seems the more feasible under international law, at the same time it strongly limits the possibilities of response entrusting the power of reaction in the solely figure of UNSC. In international law, opinio juris is the subjective element used to judge whether the practice of a state is due to a belief that it is legally obliged to do a particular act.
39 of the Charter, thus meaning that the final choice derives from a juridical/political balance based on a case by case subjective evaluation. 42 legally unnecessary. 39 of UN Charter, the work will examine the practice of the UNSC and prospect possible measures against ICT misuses constituting a cyber-threat to international peace and security. So, considering the wide range of discretionary power UNSC enjoys in ascertaining the existence of a threat to peace and that to date cyber-operations consist in one of the most important reasons of the contemporary international in-stability, the concept of threat to peace seems to may embrace also some ICT misuses[8].
State Opinio Juris and International Humanitarian Law Pluralism 2015 172 I I. 42 only to those situations in which the State openly contrasts the decision of the Council: an improbable hypothesis in the case of cyber threats considering that cyber-attacks are often (if not always) committed by private individuals with respect to whom States avoid to show any possible link, in order to escape any legal consequence in terms of responsibility. Considering the broad margins of Art. The main categories the UNSC has developed in this respect… are financial sanctions against targets listed by the Council or identified by a sanctions committee of the Council that, for purposes under discussion, can be the main stakeholders of cyberspace as: Internet providers, intermediaries, hackers etc. Le cyber operations nel diritto internazionale. 1 Opinio Juris in Historical Context J Patrick Kelly There may be an assumption in this panel that early conceptions of CIL/opinio juris from the 16th through 19th centuries may provide insights into the importance or relevance of the opinio requirement today. This approach seems convincing, at least in abstracto, especially considering that the determination of a threat to peace has mainly a political nature. These measures are mandatory, capable to override obligations previously assumed by UN Member States and can be address against States and non-State actors: a valuable peculiarity considering the “private” nature of most cyber-operations. State practice is creative, or expressive, of customary international law, but only in so far as it is undertaken with a legal conviction (acceptance as law, or opinio iuris). [16] Shackelford J. 39, especially considering that practice shows that only few times the Council has acted in presence of limited transboundary implications[17]. This opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of the Parties and the attitude of States towards certain General Assembly resolutions. [5] Simma B., Khan D., Nolte G., Paulus A., cit., § 16. This peculiarity limits the operability of art. (So) the non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security”[4]. When opinio juris exists and is consistent with nearly all state practice, customary international law emerges. International applications. Hypothetically speaking, in the case a cyber-threat to international peace occurs, having been declared as such by the UN Security Council, the UN Charter offers several options for containing and defeating the threat pursuant to articles 40 – 42.
Moreover, the fact that the Council acted also with regard to pure internal situations capable to have an impact at international level allows in sustaining that the Council could intervene also when cyber-operations do not assume an international dimension.
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