Cyberattacks By Non-State Actors And Challenges In State Attributability
Shreya Menon, ILS Law College, Pune
ABSTRACT
This essay addresses the challenges that arise regarding attributability towards a state for the actions of non-state actor in the cyberspace. With the surge in the cyberattacks both in the national and international levels, it becomes more than necessary for the need of an international legal framework. Existing attribution rules, such as Article 8 of the Articles on Responsibility of States for Internationally Wrongful Acts, the Effective Control test put forward by the Nicaragua case and the Overall Control test put forward by the Tadic case have established an extremely high threshold of proof which is almost impossible to be proven in the cyberspace context. Since these standards were developed for kinetic warfare, it is almost impractical to apply to the cyberspace as the evidentiary requirements and method of action is extremely different for both the scenarios. To establish these aspects, the essay evaluates major cyberattacks that took place against Estonia (2007), Georgia (2008), and Albania (2022). Through this analysis, it can be established that the two tests, especially the Effective Control test, are inadequate tests for attribution in the cyberspace. This paper argues for a revised system for attribution. It suggests for adopting a more relaxed standard, establishing a specialized agency, using multi-factor tests, or applying due diligence principle. Without a strong attribution standard, the state actors responsible will continue to evade responsibility by hiding behind the cloak of legal formalism.
Keywords: Cyberattack, non-state actors, Attributability, Overall Control test, Effective Control test
