International Law Studies


While there exists a broad consensus among States that international law generally applies to the cyber domain, particular views regarding the applicability of the law of neutrality have rarely been put forward, and presently there seems to be insufficient State practice and domain-specific opinio juris in this regard. Against this backdrop, several attempts have been made throughout the years to apply certain neutrality rules to cyberspace by referring to analogies from other domains. However, this legal regime provides an emblematic example of what the introduction of traditional rules of international law, formulated with the physical domains of warfare in mind, would entail in cyberspace, given the unique features of this domain. This article therefore presents a critical analysis of such attempts by examining three scenarios that describe cyber activities in the context of an international armed conflict and exploring how the law of neutrality might be applied to them. After discussing the legal, practical, and policy challenges that arise, the article concludes that a mutatis mutandis application of neutrality rules provides, at best, a limited contribution to the clarification of the legal framework. Therefore, the article points to the importance of pursuing a case-by-case, norm-specific examination and reaching conclusions regarding the lex lata based on the actual practice of States in cyberspace, rather than relying on broad statements.