Inside Cyber Warfare - Jeffrey Carr [33]
The First Exception: UN Security Council Actions
The first exception to the general prohibition on the use of force is actions authorized by the UN Security Council. Article 42 of the UN Charter allows the Security Council to use military force to restore international peace and security. However, while the UN Charter grants the Security Council power to use military force, the Security Council cannot do so until it has met the conditions of Articles 39, 41, and 42.
Article 39 is the first threshold that the Security Council must cross before it can authorize the use of force. It requires the Security Council to determine that a “threat to the peace, breach of the peace, or act of aggression” exists. Once the Security Council determines that this threshold has been met, it can attempt to restore international peace and security in accordance with Articles 41 and 42 of the UN Charter.
Article 41, the use of nonmilitary measures, is the Charter’s preferred method for restoring international peace and security. Under it, the Security Council can direct states to use nonmilitary measures to coerce an offending state into ceasing its aggression. The nonmilitary measures are implemented by UN member states and may include the “complete or partial interruption of economic relations...and other means of communication, and the severance of diplomatic relations.”
When the Security Council determines that Article 41 measures are would be pointless to try or have proven unsuccessful, it may authorize military measures under Article 42. However, unlike its Article 41 powers, the Security Council may only authorize member states to take military action; it cannot compel them to do so.
The Second Exception: Self-Defense
The second exception to the general prohibition on the use of force is self-defense. This right is enshrined in Article 51 of the UN Charter, which proclaims that “[n]othing in the present Charter shall impair the inherent right of [states to engage in] individual or collective self-defense” in response to an “armed attack.” As the text of Article 51 implies, the right of self-defense existed long before the UN Charter, and it has been reaffirmed by the Charter as an inherent right under customary international law. Self-defense essentially stands for the proposition that states have a fundamental right to survive, and they may use force to protect themselves and their citizens. Because this right exists independently from the UN Charter, self-defense analysis draws on both the provisions of Article 51 of the UN Charter and the principles of customary international law.
The bedrock principle of self-defense is that it may be invoked in response to an armed attack. Unfortunately, although this cornerstone is universally recognized under international law, ambiguity over the meaning of “armed attack” has led to an ongoing debate about when states may invoke self-defense. This is because the Charter never defines “armed attack.” Since the timing of self-defense is contingent on when an armed attack occurs, it is critical to resolve what constitutes an armed attack. This debate has become even more pronounced regarding cyber attacks, which are far more difficult to classify than traditional attacks with conventional weapons.
Self-defense analysis is further complicated because of competing theories among legal scholars on the interplay between the UN Charter and customary international law. Some commentators place heavier emphasis on the UN Charter, arguing that Article 51 limits self-defense to responses against actual armed attacks. Others place more emphasis on customary international law, arguing that the historical right of states to treat imminent armed attacks as armed attacks is also lawful. Imminent armed attacks are addressed later in this chapter, but for now, it is worth noting that although there are different theories