Determining laws of war to new cyber-circumstances, it is

Determining the extent of state
responsibility borders in a borderless environment such as cyberspace has
proved to be a challenging task, fostering a debate among policymakers and
international scholars. Initially it was debatable weather the existent law was
applicable in cyberspace at all. Due to the conventional view that
cyberspace “is not a physical place” and as such it defies measurements in any
physical dimension or time space continuum and is, therefore, unconstrained by the limitations that
these characteristics impose, commentators have claimed for years that the
existing legal framework does not apply to cyberspace (Johnson and Post, 1996), thus supporting Barrlow’s Declaration of the Independence of
Cyberspace. However, opponents of such theory have pointed out that cyberspace
requires a physical architecture to exist, and that the equipment constituting the
architecture is usually located within the territory of a state. Consequently, state sovereignty and international norms
that flow from it apply to the infrastructure within its territory (UN Doc, A/68/98, 2013). This view has
found wide support amongst scholars. Most recently, under NATO’s initiative, a group
of reputable experts gathered with the aim of setting guiding principles with
regard to the applicability of international law on cyberspace, and laid down
such norms in the Tallinn Manual. The
Manual though not binding by nature is the first comprehensive document with
regard to the discussion of the applicability of customary international law (CIL)
on cyberspace, establishing a principle that most countries and authors agree
on – that cyberspace is not a lawless environment and that basic principles of
international law govern it although there may be a need for a consensual
adaptation to the specific characteristics of cyberspace. As such, when
applying “old laws of war to new cyber-circumstances, it is important staying
faithful to enduring principles, while accounting for changing times and
technologies” (Hongju Koh, 2012).