Harmful effect assessment of a State’s cyber operation to make a case per International Law

Description:
To scrutinize a state’s cyber operation under international law requires a legal assessment of the harmful effect of the conduct in question. Existing discussions and states’ position papers usually make blunt and arbitrary assertions as to which threshold of effects should be met before a cyber operation could be argued as inconsistent with certain obligations. Few would bother to reflect on the evaluation process of the harmful effect. This leaves ambiguity in applying international law in cyberspace, and poses a challenge for international law-making. This talk tries to introduce a three-step generic model to assess the consequence of an accused state’s cyber operation. Step one: delineation. Only consequences that result from and ascribe to the accused operation could count as within the meaning of harmful effect, which could be assessed per different standards recognized in lex lata. Step two: categorization. The dichotomy of physical and non-physical effects is used in the discussion on cyberspace, in which the non-physical effects, containing economic, political, and social aspects, especially deserves a more thorough examination. Step three: synthesization. The Synthesized Harm of a single cyber operation, the Aggregated Harm of a series of inter-related cyber operations, and the Composite Harm caused by cyber operation in synergy with a different type of operation such as kinetic operation, can then be assessed depending on the specific scenario. With this model, state positions and typical cases can be revisited.