Symposium Review: Is There a Need for International Cyber Warfare Treaties?

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During North Carolina Journal of International Law and Commercial Regulation’s 2014 symposium, various panelists[1] offered their views on the growing area of cyber warfare. Cyber warfare is a relatively new development that is creating ethical and legal ambiguity under current international law.[2]

Modern international law recognizes the idea of jus ad bellum, literally translated to mean “right to war”.[3] This theory determines situations when it is lawful to resort to war.[4] The United States, and now most countries, claim jus ad bellum theory properly applies to cyberspace warfare. Prevailing international law claims under jus ad bellum that a right to war occurs when there is armed conflict. This naturally raises the follow-up question—what counts as armed conflict within cyber warfare? The very nature of cyber space does not make for an easy analysis. For example, would using cyber warfare to cause economic disruptions or interference constitute armed conflict?[5] Current international law says economic coercion does not constitute an attack. Of course, when this principle was derived, the typical scenario of economic coercion typically involved some type of trade embargo. There is some doubt whether economic disruption achieved through cyber warfare tactics might be construed differently and rise to the standard of armed conflict. This lack of clarity and the nature of cyber warfare makes it hard for the typical cyber warfare tactic to reach the standard of armed conflict and to thusly have current rules of warfare and defense apply.[6]

One panelist, Gary Brown, noted that a way to fill in the legal gap concerning cyber warfare would be through the development of social norms to help govern the growing area. Currently, there are not really any norms present in cyber warfare. The United States is trying to lead change to have norms in cyber warfare, but recent scandals[7] have made progress difficult. Furthermore, countries are hesitant to promote norms that would limit their actions, at least without an incentive. With the difficulty of establishing norms in cyber warfare, it would seem an international treaty would be another option. While all the panelists seemed to express a desire for an international treaty to help govern cyber warfare and to help clarify the area’s ethical and legal uncertainties, they also expressed skepticism whether such a treaty could be achieved. Until then, the ethical and legal issues of cyber warfare will remain one of the biggest challenges facing modern international law.


[1] The panelists consisted of Catherine B. Lotrionte, Major General Charles J. Dunlap, Jr., USAF (retired), and Gary Brown.

[2] This article shall focus on the cyber warfare of state actors versus other state actors, as opposed to state actors versus non-state actors.

[3] Dimitar Kostadinov, Fitting Cyber Attacks to Jus Ad Bellum, InfoSec Institute (last visited Feb. 1, 2014), http://resources.infosecinstitute.com/fitting-cyber-attacks-to-jus-ad-bellum-instrument-based-approach/.

[4] Id.; see also Marco Roscini, World Wide Warfare - ‘Jus Ad Bellum’ and the Use of Cyber Force, Max Planck Yearbook of United Nations Law (June 30, 2010), available athttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1683370.

[5] An example of economic disruption would be altering bank account information by scrambling account numbers and balances, so that it is unclear how much money an account contains. Similarly, another example would be knocking out the power grid of a traffic system to create alarm that leads to economic losses.

[6] The United States has expressed that an actor using “force” would activate a countries’ right to defend itself, but there is uncertainty whether or not the United States is using the word “force” to actually mean a weaker standard than “armed conflict”.

[7] See, e.g., Alison Smale, Anger Growing Among Allies on U.S. Spying, NY Times (Oct. 23, 2013), http://www.nytimes.com/2013/10/24/world/europe/united-states-disputes-reports-of-wiretapping-in-Europe.html?pagewanted=all.


Posted by Mark A. Kochuk on Thu. February 13, 2014 8:00 AM
Categories: Customary International Law, Cyberwarfare, Symposium

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