Document Type

Article

Publication Date

2011

Abstract

This Article makes two overarching arguments. First, strategy is a major driver of legal evolution. Most scholarship and commentary on cyber-attacks capture only one dimension of this point, focusing on how international law might be interpreted or amended to take account of new technologies and threats. The focus here, however, is on the dynamic interplay of law and strategy – strategy generates reappraisal and revision of law, while law itself shapes strategy – and the moves and countermoves among actors with varying interests, capabilities, and vulnerabilities. The purpose is not to come down in favor of one legal interpretation or another, and the conclusions are necessarily speculative because no governments speak in much detail about their cyberwarfare capabilities and strategies at this point. There are downside risks and tensions inherent in any plausible approach, though, and this analysis helps in understanding their implications.

Second, it will be difficult to achieve international agreement on legal interpretation and to enforce it with respect to cyber-attacks. The current trajectory of U.S. interpretation is a reasonable effort to overcome the translation problems inherent in a U.N. Charter built for a different era of conflict. However, not only do certain features of cyber-activities make international legal regulation very difficult, but major actors also have divergent strategic interests that will pull their preferred doctrinal interpretations and aspirations in different directions, impeding formation of a stable international consensus. U.S. policymakers should therefore prepare to operate in a highly contested and uncertain legal environment. The prescription is not to abandon interpretive or multilateral legal efforts to regulate cyberattacks; rather, it is to recognize the likely limits of these efforts and to consider the implications of legal proposals or negotiations in the context of broader security strategy.

Disciplines

International Law | Law | Military, War, and Peace | National Security Law

Center/Program

National Security Law Program

Center/Program

Center on Global Governance

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