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Remarks by Lt. Col. Sean Watts

Published online by Cambridge University Press:  28 March 2018

Sean Watts
Sean Watts*
Affiliation:
Creighton University School of Law.
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Extract

We are still in the early days of the relationship between cyberspace and international law. In many respects, it is a relationship off to an unsteady and uncertain start. But a slow and sporadic trickle of governmental efforts to express or even to shape that relationship has emerged. To date, the most significant multinational clarification from states has been the deceptively modest concession that international law applies fully to cyberspace. States have at least made clear that the novelty and seemingly virtual nature do not exempt cyberspace from existing in international law.

Type
International Law and Cyberspace: Challenges for and by Non-State Actors
Information
Proceedings of the ASIL Annual Meeting , Volume 111 , 2017 , pp. 59 - 62
Copyright
Copyright © by The American Society of International Law 2018 

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References

1 See, e.g., UN Secretary-General, Rep. of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security, UN Doc. A/70/174 (July 22, 2015) [hereinafter UN GGE Report 2015]; UN Secretary-General, Rep. of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security, UN Doc. A/68/98 (June 24, 2013) [hereinafter UN GGE Report 2013].

2 See UN GGE Report 2015, supra note 1.

3 Tallinn Manual 2.0 on International Law Applicable to Cyber Operations (Michael N. Schmitt ed., 2017) [hereinafter Tallinn 2.0].

4 UN Charter, Art. 2(4).

5 See, e.g., Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Art. 2, Aug. 12, 1949, 75 UNTS 287 (identifying “armed conflict” as, inter alia, a condition sufficient to activate laws of war applicable to civilian protection).

6 For early treatment of low-intensity cyber operations see Watts, Sean, Low-Intensity Computer Network Attack and Self-Defense, 87 Int'l L. Stud. 59 (2011)Google Scholar.

7 See id. at 104–08 (examining forces behind states’ increasingly frequent resort to low-intensity cyber operations in detail).

8 See Schmitt, Michael N., Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework, 37 Colum. J. Transnat'l L. 885 (1998)Google Scholar (identifying challenges in applying the UN Charter use of force prohibition to cyberspace).

9 Hersch Lauterpacht famously observed, “if international law is, in some ways, at the vanishing point of law, the law of war is, perhaps even more conspicuously, at the vanishing point of international law.” Lauterpacht, Hersch, The Problem of the Revision of the Law of War, 29 Brit. YB. Int'l L. 382 (1952)Google Scholar. To the extent Prof. Lauterpacht meant to comment on legal ambiguity, the law of war has progressed in this respect significantly since his time, whereas by comparison many disciplines of general international law have not.

10 Island of Palmas (Neth. v. U.S.), 2 RIAA 829, 838 (Perm. Ct. Arb. 1928).

11 Tallinn 2.0, supra note 3, at 18–21.

12 Id. at 19–21.

13 Id. at 20–21.

14 The Case of the S.S. ‘Lotus’ (Fr. v. Turk.), 1927 PCIJ (ser. A) No. 10 (7 September) at 18 (“International law governs relations between independent States. The rules of law binding on States therefore emanate from their own free will … . Restrictions upon the independence of States cannot therefore be presumed.”).