Cyberwarfare regulation - A Liability and jurisdiction disquisition

Abstract

This dissertation addresses cyberwarfare regulation through the lens of liability and jurisdiction, seeking to address its three objectives: an analysis of the legal framework regulating cyberwarfare in international law; an analysis as to how liability with regard to cyberwarfare may be addressed; and, a further analysis as to how jurisdiction with regard to cyberwarfare may be established. The methodology used to conduct this research was desk research with the relevant materials being analysed to give relevant insight. It was not possible to carry out field research because of how sensitive matters pertaining to warfare are, and to this regard, most of the information not published is confidential. Chapter 2 addresses the first objective. It looks at both positive and normative international law as they both constitute important dimensions of international law. It goes a step further to mention the two Tallinn Manuals on cyber operations which constitute soft law. Chapter 3 addresses the second objective. It looks at both individual and state liability. Chapter 4 addressed the third objective. It looks into the principles of establishing jurisdiction under international law. Sovereign immunity and inviolability are also looked into because they provide exceptions to the establishment of jurisdiction. Chapter 5 addresses the recommendations and provides a conclusion to the dissertation. The legal solutions recommended include: there ought to be established an international treaty that will address the issue of cyberwarfare; if it is not possible to have consensus about a treaty, there ought to be an international tribunal for cyberwarfare established by the Security Council drawing its mandate from Chapter VII of the Charter of the United Nations; the mandate of the World Trade Organisation should be expanded to deal with digital industrial espionage; the definition of aggression should be expanded to incorporate cyberwarfare; and, capacity should be built on the international level to address the issue of cyberwarfare.