Decoding Article 8 of the International Law Commission’s Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors

Abstract

Cyber operations pose a set of novel challenges to the generally conservative body of the law of State responsibility. Central among them is the problem of attribution, which lies at the intersection of technology and law. This article reflects the recent developments in the States’ technological capacity to identify the sources of cyber attacks from the perspective of international law. It revisits Article 8 of the International Law Commission’s Articles on State Responsibility in order to ‘decode’ its contents vis-à-vis its drafting history and with an eye on its future application to the conduct in cyberspace. The article argues that there are three autonomous standards of attribution built into that provision: instructions, direction, and control. It then demonstrates the utility and limitations of each of them against the backdrop of actual and hypothetical cyber operations. The article concludes with suggestions for further development of the law in this area, focussing on the missing potential of the law to regulate instigation of wrongful cyber conduct and on the prohibitively strict test of control applicable de lege lata.