Cláusula de Martens: Aplicación en el contexto de la Ciberguerra

AutorCarolina del Rocio Changoluisa Barahona
CargoIndependent legal researcher
Páginas170-202
Changoluisa, C. Martens Clause
170
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
Martens Clause: application in the
context of Cyberwar
Cláusula de Martens: aplicación en el
contexto de la Ciberguerra
Carolina del Rocio Changoluisa Barahona
Independent legal researcher
City: Quito
Country: Ecuador
Original article (miscellaneous)
RFJ, No. 12, 2022, pp. 170 - 202, ISSN 2588-0837
ABSTRACT: With the codification of International
Humanitarian Law or better known as “the laws and customs
of war”, it has been possible to solve humanitarian problems
generated by the barbarity of war. has been able to solve
humanitarian problems generated by the barbarity of war.
However, in situations not contemplated by the traditional
norms, the possibility of resorting to other sources such as
the Principles of International Law, custom, or doctrine is
given way to the possibility of resorting to other sources. The
Martens Clause is presented as a mechanism of interpretation
in the face of problems or situations that cannot be covered by
the conventional rules of IHL1 . This article aims to analyze
the application of the Martens Clause in the context of
cyberwarfare. In this regard, its interpretation in the context of
armed conflicts will be examined and the IHL rules applicable
to cyberwar as an armed conflict will be identified, in addition,
the current normative development applicable to an armed
conflict categorized as cyberwar will be reviewed. In this way,
1 Understood as International Humanitarian Law.
DOI 10.26807/rfj.vi.400
Changoluisa, C. Martens Clause
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Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
it will demonstrate the important role played by the Martens
Clause in the normative vacuum of cyberwarfare, which is
presented as a new latent threat within the jus in bello.
KEYWORDS: Martens Clause, International Humanitarian
Law, Information Society, Cyberwar, Cyberspace.
ABSTRACT: Certainly, with the codification of International
humanitarian law or commonly known as the law of war or the
law of armed conflict, the humanitarian problems derived from
the armed conflicts were solved. However, against situations
didn’t consider the traditional law is given the possibility of
appeal to other sources inside International law like General
principles of law, the international custom, or the doctrine.
The Martens Clause is shown as a mechanism of interpretation
against problems or situations that couldn’t be contemplated by
the conventional law of IHL2 . This article pretends to analyze
the application of the Martens Clause in the context of cyberwar.
It will be examined in the context of armed conflict, and it will
be checked the normative development that could be applied
to an armed conflict cataloged as cyberwar. It will be shown
the important role that performs the Martens Clause against the
empty normative of cyberwar that it will be presented as a new
threat inside of the jus in bello.
KEYWORDS: Martens Clause, International Humanitarian
Law, Knowledge society, Cyberwar, Cyberspace.
JEL CODE: F02, L86.
2 International Humanitarian Law” is an acronym for “International
Humanitarian Law”.
Changoluisa, C. Martens Clause
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Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
INTRODUCTION
In the colossal world in which we live, armed conflicts
have undergone great transformations. The history of humanity
is marked by wars and massacres; however, States have also
struggled to achieve peace through concrete actions that
allow full coexistence. In the field of armed conflicts, the law
has been presented to protect people who do not participate
directly or those who can no longer participate in the conflict.
Moreover, it is thanks to the development of International
Humanitarian Law that it has also been possible to limit the
methods and means used in warfare. However, the world is
evolving and so is everything concerning armed conflicts, the
means, and methods, and even the people involved in a conflict.
Today, humanity is surrounded by a growing technology that
has revolutionized and expanded the scenario of war. The
terrestrial is set aside to analyze the imminent dangers that can
be unleashed in cyberspace3 . Indeed, the broad technological
development has resulted in an information society4 that poses
new realities and in which, multiple changes can be observed
within the branch of law. In this way, we can confirm what
was stated by Bericat (1996) when referring to the existence
of “a growing concern and sensitivity that surrounds scholars
and theorists regarding the presence of a new society” (p.112).
3 The U.S. Department of Defense defines it as a global domain within the
information environment consisting of the interdependent network of
information technology infrastructures and resident data, including the
Internet, telecommunications networks, computer systems, and embedded
processors and controllers.
4 The “Information Society” better known as “Infocommunication Society”
is defined as a society that uses, both intensively and extensively, computers
and telematic networks, the combination <<Computer-Network>>, the
social technostructure of <<Computers in Networks>> technologically
defines the information society. (Bericat, 1996).

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