This chapter offers an analysis of the challenges for governments and the private sector in cybersecurity governance from a systemic perspective. It first identifies the challenges that the liberal international order, characterised by political liberalism, economic openness, and international cooperation, has faced in the area of cybersecurity governance. It also observes that there have so far been no successful global efforts to harmonise rules or create a unified regime. This chapter then emphasises how the private sector’s essential role as innovators possessing technological expertise is unique to cybergovernance and explains how the interplay of different actors, both public and private, has practical meaning for states and actors.

Peace between states is commonly the result of mutual interests in cooperation and lack of incentives to use force. However, there are also disincentives to the use of force, and several will be discussed in following chapters. This chapter gives an overview and points to the foreseeable losses of lives and resources as the most widely recognized disincentive. Where a potential adversary has strong military force, there is a disincentive to initiate the use of force. When both sides have nuclear weapons, we speak of a mutual deterrence and the risk of Mutually Assured Destruction (MAD). Today, the mutual economic dependence of states (MED) may also make ruptures of relations so painful as to be a disincentive to the use of force. Past failures of the use of force should – but do not always – create disincentives. Legal norms, notably the UN Charter, prohibiting the use of force constitute disincentives, but the effectiveness is hard to verify. The same may be said of public opinion.

The interstate use of force aiming at the acquisition of territory has been shown to have been rare after WWII. Interventions – actions without that aim but relying on open or shrouded or subversive use force – have remained common. Are they all illegal under Art. 2:4? Concrete cases are examined of interventions undertaken in circumstances not foreseen at the adoption of the Charter. They show an unwillingness in the UN to find force aimed at decolonization illegal. Contrived justifications for interventions undertaken in pursuit of the Cold War rejected, while understanding is shown for interventions using force in response to terrorism. Attacks – including interventions – that are imminent are deemed to justify use of force in self-defence, but attacks not seen as imminent do not. In line with this thinking, the use of force to destroy a nuclear research reactor that could have produced plutonium for future nuclear weapons was condemned by the Security Council in 1981. Attacks made with similar intentions – by cyber means and by assassinations – have nevertheless been undertaken.

This and Chapter 3 seek to give an idea of the scope of the current use of interstate use of force. Chapter 2 offers brief descriptions of post-WWII conflicts, region-by-region. It covers the paucity of wars in Africa, Europe and the Americas, many conflicts in the Middle East, including Gulf War 1990, Iraq War 2003, Syrian Civil War, and the wars in Yemen and Afghanistan and Iran nuclear deal 2015 (JCPOA), It further describes conflicts in Asia and the Pacific, India/Pakistan conflicts, India/China clashes.

In this chapter, I lay out a theory cataloguing the conditions under which international courts may be expected to issue audacious rulings. This theoretical framework relies on previous literature and insights gathered from interviews with experts in and around the Court. The necessary condition for audacious courts is a wide discretionary space within which they may act without fearing repercussions from states. Yet, such a wide discretionary space is not always given; when it is given, states might still attempt to influence courts through direct or indirect means. Such means include closing down courts’ discretionary space and widespread negative feedback, as well as related threats. International courts, in turn, are compelled to realign their priorities to react to or pre-empt such measures. This is a form of trade-off whereby courts adjust their behaviour to ensure continued access to resources and to preserve their reputation and public image. The chapter also introduces additional factors that increase the likelihood of audacious rulings (i.e., proposed new understandings’ congruence with changing societal needs, legal developments external to the regime, and civil society campaigns).

This chapter explains why the norm against torture and inhuman and degrading treatment dramatically expanded in the period after 1998. Relying on the theoretical framework, it assesses the conditions that made the Court audacious enough to effectuate these resource-intensive positive obligations. First, as a full-time court with compulsory jurisdiction, the new Court came to enjoy a wide discretionary space. This attribute conferred it with judicial courage to issue audacious rulings across the board and recognize a range of important positive obligations under Article 3. Second, there was a growing need for positive obligations in European societies, especially in the aftermath of the Eastward enlargement. Positive obligations were necessary for both the Western and Eastern European countries alike. They served a supplementary role for the protection of rights in Western Europe and played a crucial role in inducting Eastern Europe into a rule of law tradition. Last but not least, creating positive obligations was less likely to raise eyebrows because they were already established in the jurisprudence of other courts and were actively promoted by civil society groups.

The conclusion identifies the key turning points in the Court’s jurisprudence in light of the established theoretical framework and presents several key findings that further the debate on judicial politics and on the backlash. The main takeaway is that international courts may not always attempt to expand their power. On the contrary, concern for institutional survival or public image may compel them to under-utilize their power. Courts will follow forbearing or selectively forbearing policies to prevent or mitigate political pushback or backlash. They will reserve audacity or selective audacity for moments when they feel safe from political repercussions. Drawing upon my analysis of the Court over five decades, I call for historicizing the current instances of backlash against international courts and liberal institutions. At least in the context of the European Court, an important lesson is that the backlash is not unique to today’s political climate. The Court has seen different episodes of backlash and, as a result, it has forged a resilience strategy to fend off or pre-empt backlash. Such strategies can also be traced in other courts and institutions with delegated authority.