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The Elephant in the Room: Coercion

  • Ido Kilovaty (a1)
Extract

Dan Efrony and Yuval Shany's article offers some critically important observations on the reception of the Tallinn Manual 2.0 by states, as well as subsequent state practice and opinio juris with regard to the international use of cyber operations. Based on their case studies, Efrony and Shany conclude that states have largely been reluctant to adopt fully the norms, premises, and analogies offered by the Tallinn Manual. The authors argue that there is a “deep uncertainty about the treatment of cyberspace as just another physical space, like land, air, or sea—over which states may exercise sovereignty or control.” The authors further explain that there is an “uneasy fit” between traditional international law regarding internal and external state power, and the regulation of a unterritorial cyberspace. In other words, cyberspace is a sui generis domain, such that analogies to physical-space domains are often ill-suited, and at times doomed to failure.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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2 Id. at 641.

3 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, para. 205 (June 27).

4 Id.

5 Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations 312, Rule 66 (Michael N. Schmitt ed., 2017) [hereinafter Tallinn Manual 2.0].

6 Id.

7 Id. at 320.

9 Efrony & Shany, supra note 1, at 655–57.

10 Tallinn Manual 2.0, supra note 5, at 318.

11 Id. at 320.

12 See Steven Barela, Cross-Border Cyber Ops to Erode Legitimacy: An Act of Coercion, Just Security (Jan. 12, 2017).

13 Tallinn Manual 2.0, supra note 5, at 320–21.

14 Schmitt, supra note 8.

15 See Jens David Ohlin, Did Russian Cyber Interference in the 2016 Election Violate International Law?, 95 Tex. L. Rev. 1579, 1580 (2017).

16 Efrony & Shany, supra note 1, at 589.

17 Id. at 653.

18 Harold Hongju Koh, The Trump Administration and International Law, 56 Washburn L.J. 413, 450 (2017).

19 Efrony & Shany, supra note 1, at 642.

20 Tallinn Manual 2.0, supra note 6, at 318.

21 Barela, supra note 12.

22 Efrony & Shany, supra note 1, at 648–52.

23 Id. at 631.

24 Brian Egan, Legal Adviser, U.S. Dep't of State, Address at University of California-Berkeley School of Law: International Law and Stability in Cyberspace, Just Security (Nov. 10, 2016).

25 Michael Schmitt, US Transparency Regarding International Law in Cyberspace, Just Security (Nov. 15, 2016).

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  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
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