LEGAL ANALYSIS OF THE RIGHT TO SELF-DEFENCE UNDER UNITED NATIONS CHARTER: THE CASE OF CYBER-ATTACKS

Abstract

Technological development in modern society has proven the importance of technological advancement in economic development. Technology has been a useful tool in many aspects of modern society development. With advanced technology, cyberspace has become a virtual place where many things happen. Although the use of cyber space has facilitated and continues to facilitates modern life, cyber carries with it negative effects detrimental to both natural and legal persons. One of the negative effects of use of cyber space is increased cyber-attacks taking place in cyber space which are directed against unsuspecting states and institutions, or companies. International law prohibits violation of other states’ sovereignties. However, the internationally recognized inherent right of states to be free from use of force is jeopardized in realm of cyber-attacks. This is seen as a violation of international law obligations of states. International law, sovereign states are entitled to the right to be free from threat or use of force. It is no doubt that Cyber-attacks continue to pose threats to state sovereignty and this is not only a breach of prohibition of use of force under article 2(4) of the UN Charter but also a breach of customary principle of non-intervention. This study intended to see whether cyber-attacks constitute a violation of international law and whether state victim of cyber-attacks may invoke self-defense as per article 51 of the UN charter. It also intended to analyze whether state perpetrators of these attacks may be held responsible under international law. The study found that cyber-attacks may be commensurate with prohibited use of force and hence, a violation of state sovereignty. Furthermore, the study found that state may resort to self-defense in cyber-attacks. Despite a little possibility that perpetrators of cyber-attacks may be held responsible, holding state perpetrator responsibility in cyber-attacks has many challenges given the technological nature of cyber-attacks and lack of specific treaty regulating these unprecedented fates. As recommendation, the study suggests that UN adopt a convention at regulating cyber-attacks at planetary level or amend the article 2(2) to accommodate cyber-attacks as modern technological use of force. Moreover, the study encourages states to build strong cyber security to counter-potential cyber-attacks in future.