Nicholas Tsagourias

Self-Defence Against Non-State Actors: The Interaction between Self-Defence as a Primary Rule and Self-Defence as a Secondary Rule

This article examines the law of self-defence as applied to non-state attacks in light of the coalition air strikes against ISIL in Syria. It critiques the two current interpretations of the law of self-defence – one based on attribution and the other on the ‘unable or unwilling’ test – for failing to address adequately the security threat posed by non-state actors or for not addressing convincingly the legal issues arising from the fact that the self-defence action unfolds on the territory of another state. For this reason, it proposes an alternative framework which combines the primary rule of self-defence to justify the use of defensive force against non-state actors, with the secondary rule of self-defence to excuse the incidental breach of the territorial states sovereignty.

The legal status of cyberspace

This chapter examines the legal status of cyberspace in international law. It claims that cyberspace cannot be sovereign because it lacks those ingredients, such as a ‘people’ and the attendant institutional and legal mechanisms to support such a claim. Instead, states are able to exercise sovereignty and thus jurisdiction over persons, objects and actions in cyberspace because sovereignty, connoting authority and power, is not in principle dependent on territory. The chapter then goes on to discuss the representation of cyberspace as a global commons (res communis) but argues that cyberspace does not satisfy the physical, political and legal conditions to warrant such designation. The chapter concludes by suggesting a global treaty to regulate cyberspace, yet it explains the reasons as to why such a treaty is not possible at this stage.

Necessity and the Use of Force: A Special Regime

This chapter examines the relevance of the principle of necessity to the international rules on the use of force. It claims that necessity has been the source of the international rules on the use of force which as independent titles manifest themselves in institutional as well as in customary forms. It also claims that the use of force constitutes a special regime of international law which is distinct from the law of state responsibility with which it however interacts.

The Crisis in Crimea and the Principle of Non-Intervention

During the civil unrest in Ukraine in early 2014 Russia began supplying rebel groups in Crimea with military equipment, deployed military forces into Crimea and encouraged and supported Crimea’s secession from Ukraine. This article claims that Russia’s conduct between February and March 2014 constitutes unlawful intervention and not a use of force. It reaches this conclusion by, first, exploring the meaning and content of the principles of non-intervention and the non-use of force and then, second, by examining Russia’s justifications namely, that it intervened at the request of Ukraine’s competent authorities, to protect endangered Russian citizens and to support Crimea’s claim to self-determination. The overall aim of this article is to highlight the content and meaning as well as the legal boundaries of the principle of non-intervention as an international legal norm distinct from the prohibition against the use of force.

The Law Applicable to Countermeasures Against Low-Intensity Cyber Operations

This article examines the law applicable to countermeasures against low intensity cyber operations that is, against cyber operations below the threshold of an armed attack. In this regard it discusses the legality of forcible (reprisals) as well as of non-forcible countermeasures against low intensity cyber operations attributed to a state or to a non-state actor. It then goes on to explore the scope of the principle of proportionality in the context of countermeasures. Another issue it considers is the legality of third party countermeasures and, finally, it considers the legal effects of countermeasures on third parties; states or individuals.

Chapter 2: The Tallinn Manual on the International Law Applicable to Cyber Warfare: A Commentary on Chapter II—The Use of Force

This article comments on the jus ad bellum rules found in Chapter II of the Tallinn Manual on the International Law Applicable to Cyber Warfare. In particular it discusses the scope of the prohibition of the use of force; the definition of force; the scope of self-defence; the interpretation of imminence, necessity and proportionality in cyber; the scope of collective self-defence and the role of the Security Council. Its aim is to draw attention to certain important but contested legal issues and where possible to offer alternative views.

The Will of the International Community as a Normative Source of International Law

The concept of an international community is often used in juridical and political thinking as an authoritative image without fully elaborating its normative or practical implications.1 Sometimes it is only by implication that we are able to adumbrate its particular features. For instance, in Part I of his International Law treatise Professor Cassese discusses the “Origins and Foundations of the International Community” and opens the discussion on “[t]he main legal features of the international community” by warning us that “the features of the world (sic) community are unique”2 whereas later he deals with the “traditional individualistic trends and emerging community obligations and rights”.3 What one could infer from the above is an image of an international community that transcends the confines of state individualism towards a more inclusive and solidaristic accommodation. However, even in such a less impressionist usage of the concept of an international community, its jurisprudential character often remains unexplored and uncertain.4