Moving Forward: Fragmentation, Polarization and Hybridity in Cyberspace | Online Conference | 10-12 November 2020
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Panel 5


‘How it applies’: international law and responsible state behaviour in cyberspace

François Delerue

Dr François Delerue (@francoisdelerue) is currently research fellow in cyberdefense and international law at the Institute for Strategic Research (Insitut de Recherche Stratégique de l’École Militaire – IRSEM) and a lecturer at Sciences Po Paris. François is also rapporteur for international law in the EU Cyber Direct project. His book titled ‘Cyber Operations and International Law‘ has been published by Cambridge University Press in April 2020. François’ research concerns cyberdefense and cybersecurity, specifically their legal, policy and strategic dimensions. His research focuses on international law obligations, norms and international cooperation, as well as on the various actors involved in this area, including States, private companies, non-governmental organisations. More broadly, he is interested in how new technologies and activities (space activities, cyber, robotics and artificial intelligence) challenge international law and international relations.

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Is international law fading away in State practice on cyber operations?

International law applies to cyberspace and cyber operations. Yet, despite the centrality of international law in the international discussions, when it comes to State practice, international law seems to be absent or to be perceived as an abstract concept without concrete application in State practice regarding cyber operations. Some States have developed a practice of public attribution of cyber operations to other States in the last decade. In all past examples, the vast majority of the attributing States made no reference to international law and only a few made loose references to “international law” or the “international rules-based order”. To date, no attributing statement has ever clearly characterized which rule or principle of international law has been breached nor referred to the categories of the international legal framework to attribute and react to these acts. The objective of this paper is twofold: firstly, questioning why States are not using the rules and principles of international law in their practice while promoting it in international discussions. Secondly, assessing the consequences of this schizophrenic approach on international law and the framework of responsible State behaviour, and more broadly on international peace and security. Moreover, it also analyses the disparity of approaches among States, notably between the big powers, emerging ‘tech powers’ and the rest of the world.