Applying the Doctrine of Necessity to Emergency Situations in Cyberspace

What is it about?

More and more states are starting to accept that, in cases of cyber emergencies, the customary legal defence of “necessity” might apply – that is, breaking international rules could be excused if it was the only way to deal with the crisis. However, some important legal questions still haven’t been clearly addressed, either by states themselves or in international legal scholarship. This article looks at three of the most important unanswered issues: 1. Whether taking the action was truly the "only" option available, 2. Whether the state in trouble had "contributed" to the crisis itself, and 3. Whether "other states" can lawfully assist during such emergencies. The article argues that although some scholars are pushing back against the strict rule that the action must be the "only way", this may not matter much when it comes to cyber threats. Instead, states should focus more on whether they followed basic cybersecurity protocols domestically. Failing to do so could weaken their ability to claim that their emergency actions were legally necessary. Lastly, the article revisits a long-standing debate: can other states lawfully help a state in trouble, even if those helpers don’t meet the requirements to use the necessity defence themselves?

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Photo by Florian Olivo on Unsplash

Photo by Florian Olivo on Unsplash

Why is it important?

The article is the first in-depth scholarly treatment of the problem of necessity in cyberspace.