Regarding opinio juris, the normal definition of a belief in obligation (see, e.g., the North Sea Continental Shelf cases (1969) above) is not entirely satisfactory.First, it ignores the fact that many rules are permissive (eg regarding sovereignty over the continental shelf), for In ascertaining the existence of a threat to peace the Security Council enjoys considerable discretion, being able to include also situations not necessarily characterized by the use of military force. 39 questions arise to weather cyber weapons can be considered as veritable arms and so be included in the scope of the Resolution, especially those cyber tools capable to determine indiscriminate physical damages on large scale (as Stuxnet) and when utilized for terrorist purposes.

Additionally, further doubts rise with reference to the possibility of a UNSC action against cyber-operations striking only individuals and not States security, because cases in which the Council acts to protect population are limited to serious violations of human rights, large scale organized violence and war crimes. Furthermore, the Council clearly affirmed in the Resolution n. 1373 of 2001that also “terrorism in all its forms and manifestations” (UN Doc S/Res/1373, 2001) constitutes a threat to peace under Art. Customary international law can be established by showing (1) state practice and (2) opinio juris.

Some scholars dealt with the theme of ICT (mis)uses trough the legal categories of unlawfulness, so referring to wrongful acts when cyber operations consists in breaches of international obligations[2], and to acts of aggression when effects of cyber-attacks may be comparable to those deriving from a conventional (military) aggression[3]. The latter provides enforcement measures, including the use of military force, characterized by the fact that they are carried out against the will of the State concerned. Cyberspace still constitutes a volatile ad unsafe domain because of its technical peculiarities, but this circumstance does not impede States from using it as an alternative battlefield, functioning both in peace time and in war time. However, international law still does not provide so far any regulation in the field of computer-offences; indeed, the only legally binding multilateral instrument in force dealing with cyber operations is the 2001 Budapest Convention on Cybercrime which concerns exclusively cybercrimes by and against individuals, Some scholars dealt with the theme of ICT (mis)uses trough the legal categories of unlawfulness, so referring to wrongful acts when cyber operations consists in breaches of international obligations, On the contrary, other scholars retain that the negative political impact of ICT misuses could amount to a threat to international peace and security accordingly to Art.

For, under the customary international law system, the widespread adoption of a treaty can be taken as evidence that the rules agreed to in that treaty are opinio juris – and therefore binding on all states regardless of whether they adopted the treaty itself (North Sea Continental Shelf). Il caso Gregoretti, tra diritti fondamentali e politica. It is incontrovertible that a threat to peace occurs in case of imminent attacks preluding an armed conflict, as well as in the case of post-conflict situations when there are real risks of a “renewed eruption of violence”, but looking at UNSC practice also weapons proliferation[9], terrorism[10], illicit exploitation of natural resources[11] have reached the threshold of a threat to peace.

131-bis c.p. On the contrary, measures provided by art. International applications. Actions under Art. ), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, Cambridge, 2017, p. 79 ff. Indeed, in 2015 the Group of Governmental Experts, established by the UN General Assembly for assessing Developments in the Field of Information and Telecommunications in the Context of International Security – affirmed in its official Report that “(t)he use of ICTs for terrorist purposes, beyond recruitment, financing, training and incitement, including for terrorist attacks against ICTs or ICT-dependent infrastructure, is an increasing possibility that, if left unaddressed, may threaten international peace and security”. 1 (9), pp. If on one hand “it is incontrovertible that the UNSC has the authority” to determine that a given use of ICT constitutes a threat to the peace, on the other it is not so clear which peculiarities the cyber-operations must have to reach the threshold of a threat to peace.

Assegnista di ricerca presso il Dipartimento di Scienze Politiche Jean Monnet dell’Università degli studi della Campania “Luigi Vanvitelli”. The idea of opinio juris is mysterious because the legal obligation is created by a state’s belief in … 42 legally unnecessary.

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