Abstract
Cyber conflicts are an important security challenge, but the applicable legal regime remains ambiguous. Especially, low-intensity cyber conflicts, which do not amount to armed conflicts under international law, are difficult to handle legally because the boundary between conflicts and crimes is ambiguous. Domestic debates on the legal response to such cyber conflicts so far have mainly focused on the applicability of self-defense under Japan’s extreme pacifist constitution. However, applying self-defense to low-intensity conflicts is quite difficult under the constitution, and further progress in the debate is unlikely. This study proposes specific ways to respond to cyber conflicts by utilizing countermeasures as a new legal framework. In the first part, after touching on an overview of the application of international law in cyberspace, this study will show the advantages of countermeasures under low-intensity cyber conflicts. In the latter part, through some scenario analyses, this study will clarify concrete ways of how to apply countermeasures, foreseeable problems, and how to respond to them as conclusions. The rationale for this study was mainly based on a literature review, including previous studies, and the scenario study method was also used to draft the conclusions.
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Notes
- 1.
The International Institute for Strategic Studies (U.K.) produced a report that assessed 15 countries’ cyber power. It ranks a country’s cyber capacity and effectiveness and ranks Japan in the lowest layer, tier.3, due to the delay in developing effective domestic legislation for cyber operations.
- 2.
The Constitution of Japan, articles 9 and 22.
- 3.
The Basic Act on Cybersecurity, article 18, provides that “The national government is to provide necessary measures with the intention to.... clarify the division of roles among relevant bodies as actions to address threats which may critically affect the country’s safety concerning Cybersecurity-related incidents,” which means that those have not been clarified yet.
- 4.
Here, “low-intensity cyber conflicts” means the cyber conflicts which don’t achieve the threshold of armed conflicts.
- 5.
For example, there are several studies about self-defense in cyberspace that are done by Japanese researchers, but it is difficult to find the works related to the application of countermeasures to cyber conflicts considering specific Japanese situations.
- 6.
Draft Articles on Responsibility of States for Internationally Wrongful Acts, article 2.
- 7.
Therefore, in principle, non-State actors cannot owe the responsibility of international wrongful cyber acts.
- 8.
Draft Articles on Responsibility of States for Internationally Wrongful Acts, article 12.
- 9.
Charter of the United Nations, article 2 paragraph 4 and Article 51.
- 10.
Ibid, paras. 194–195. The court said, “the prohibition of armed attacks may apply to the sending by a State of armed bands to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than as a mere frontier incident had it been carried out by regular armed forces.”
- 11.
Charter of the United Nations, article 33.
- 12.
Draft Articles on Responsibility of States for Internationally Wrongful Acts, article 20–25.
- 13.
There are a few opinions that self-defense can be applied to the use of force that does not meet the threshold of an armed attack, such as the USA, but they are in the minority.
- 14.
For example, the Liberal Democratic Party’s “First Proposal of the Liberal Democratic Party Cyber Security Task Force” (April 24, 2018) advocates “cyber self-defense.”
- 15.
According to Tallinn Manual2.0, there still has been discussion as to whether to include the use of force as a means of necessity.
- 16.
A number of international legal scholars, including Michael N. Schmitt, Jeff Kosseff, Gary Corn, and Sean Watts, have expressed their views on the need for collective countermeasures, and the perceptions of countries appear to be changing. For example, Estonian President Kersti Kaljulaid made a positive affirmation of collective countermeasures in her keynote speech at the 2019 CyCon.
- 17.
Please note that the scenarios and premises are fictional.
- 18.
The Guidelines for Japan-U.S. Defense Cooperation (April 27, 2015) says “To help ensure the safe and stable use of cyberspace, the two governments will share information on threats and vulnerabilities in cyberspace in a timely and routine manner, as appropriate.”
- 19.
COG: Center of Gravity. Identifying the enemy’s COG and attacking it enable countermeasures to be more effective with causing less damage.
- 20.
Concerning self-defense, the U.S.–Japan Security Consultative Committee affirmed that collective self-defense will be applied to a cyber-attack in certain circumstances, based on the U.S.-Japan Security Treaty. However, there is no such agreement regarding international wrongful cyber acts below the threshold of armed attack.
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Jinnai, T. (2022). Application of International Law to Cyber Conflicts Outline of Japan’s Legal Response Against Low-Intensity Cyber Conflicts Through Countermeasures. In: Kreps, D., Davison, R., Komukai, T., Ishii, K. (eds) Human Choice and Digital by Default: Autonomy vs Digital Determination. HCC 2022. IFIP Advances in Information and Communication Technology, vol 656. Springer, Cham. https://doi.org/10.1007/978-3-031-15688-5_16
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