Transnational issues, an understanding of national

Electronic copy available at: http://ssrn.com/abstract=1437002
INTERNATIONAL PRACTICE SECTION | Vol. 58 | February 2010 | VIRGINIA LAWYER 27 www.vsb.org
AS THE PRACTICE OF LAW BECOMES MORE GLOBAL
and public policy analysis increasingly involves
transnational issues, an understanding of national,
regional, international, and transnational legal systems is now essential. The critical questions of this
new decade cannot be addressed effectively without
understanding global and legal aspects that affect
concerns that scarcely existed before the destruction
of the World Trade Center in New York City.
Since September 11, 2001, legal rules address a
range of transnational problems, including those
created by advances in technology and historic
changes in international relations—changes such as
the ascendancy of China and petrodollar
economies. Many of these rules emerged in the
1980s and 1990s in response to challenges of the
post-Cold War era and globalization. But the need
for newer rules was turbocharged by unexpected
recent challenges, which include terrorism, financial
chaos, and environmental and national security.
The emergent rules are drawn from disparate
legal systems. This newer body of legal rules is
termed “global law,” which can be defined as legal
rules drawn from different systems that address a
range of cross-border topics. The rules originate
from public international law (such as the law of
war), specialized international legal systems (such as
rules governing the international environment,
global trade, and international finance), regional
legal systems (governing such areas as human
rights), and major national legal systems as they
confront transnational problems (such as torture,
counterterrorism, and cybersecurity). These rules
sometimes establish binding obligations, and other
times, something less.
To competently practice law and undertake
policy analysis in today’s world of failing states,
transnational terrorism, global pollution, and growing multilateral institutions, practitioners and policy
makers must understand the legal contours of this
dramatically changing environment. To this end, in
summer 2009 George Mason University revamped
its annual overseas prelaw program, which previously had focused on traditional issues of British
and comparative law. The revised and expanded
program now emphasizes critical concerns that have
developed over the past decade and offers graduate
credits to students in a range of disciplines.*
GMU’s Global Law Program was held for two
weeks last summer at New College, Oxford. It was
taught primarily by Oxford University law professors, who have submitted articles for this special
issue of Virginia Lawyer, sponsored by the
International Practice Section of the Virginia
State Bar.
My article addresses cyber warfare and proposes a multilateral response. Robert Wagstaff
(Exter College) discusses terror detentions under
American and British law, while Nicholas
Bamforth (Queen’s College), examines two separate sets of European laws that address human
rights and involve the European Union and the
European Convention on Human Rights.
Catherine MacKenzie (Green Templeton College)
assesses international environmental law with a
focus on climate change and ecology.
Virginia was founded in the seventeenth
century as a trading colony by individuals on an
international adventure. Today, Virginians need to
develop the same global mindset if we are to
thrive in a vastly more complicated—but no less
exciting—world.
*http://www.OxfordGlobalLaw.com
Global Law and Global Challenges
by Stuart S. Malawer
Electronic copy available at: http://ssrn.com/abstract=1437002
28 VIRGINIA LAWYER | February 2010 | Vol. 58 | INTERNATIONAL PRACTICE SECTION www.vsb.org
Cybersecurity is the newest and
most unique national security issue of
the twenty-first century. Cyber warfare
uses computer technologies as defensive
and offensive weapons in international
relations.
1 Until now, there has been no
national debate within the United States
over the concept of cyber warfare; neither
its meaning nor the international laws
that govern this concept have been discussed at any length, and nor have the
domestic rules regarding it.
The debate over cyber warfare is only now emerging in the United States, the United Kingdom, and
the foreign policy dialogue between the U.S., the
Russian Federation, and other nations. “[M]uch
of the debate on policies related to cyber war is
happening behind closed doors.”2 National and
international understanding and strategy should
be developed, and infrastructure must be implemented nationally and internationally.
It is important to explain cyber warfare
between states in the context of domestic and
international affairs from a legal-political perspective.
3 This article does not contain a discussion of
the related issue of cyberattacks by criminal organizations, terrorists, or nonstate actors.
4
Background
Recent events have given great significance to the
use of cyberspace in conflict among nations and
international relations generally.
In early July 2009, a wave of cyber attacks,
presumably from North Korea, temporarily
jammed South Korean and American government
websites.
5 This came in the midst of North
Korea’s multiple and serial missile launches, general diplomatic tension over North Korea’s
nuclear program, and sanctions threatened by the
U.S. and United Nations. This Korean episode followed quickly on the heels of the already wellknown Russian Federation’s cyber attacks against
Estonia in 2007 and Georgia in 2008. Other
examples include Israeli cyber attacks on Syria in
2007 and U.S. use of cyber weapons in Iraq.
6
As a response to the increasing use of cyber
attacks in international relations, in June 2009
U.S. Secretary of Defense Robert M. Gates created
a new defense cyber command7 and nominated
the director of the National Security Agency to
head it. Senate confirmation is pending.
8 In bilateral relations, the United States and Russia have
been “locked in a fundamental dispute” over the
growing concern over cyber attacks.
9 President
Barack Obama addressed the issue of cybersecurity in a major speech on May 29, 2009, and proposed a cybersecurity czar.
10 He nominated
Howard A. Schmidt, formerly of Microsoft
Corporation, to serve in that position.
11 This
speech was accompanied by the release of the
administration’s Cyberspace Policy Review. In
December 2009, the United States entered into
talks with the Russian Federation on cybersecurity and cyber warfare.
12
Questions are raised by these recent events
include:
• Would the federal government monitor privatesector networks, thus raising a slew of privacy
concerns and further fueling debates that were
first raised during the George W. Bush era about
wiretapping without warrents?
• What would be the expanding role of the military in defensive, offensive, and preemptive
cyber operations as the military and the intelligence agencies prepare for digital war?
• What are the rules of international law concerning cyberwarfare when a country is attacked and
when can it be used prior to an attack?
Cyber Warfare:
Law and Policy Proposals for U.S.
and Global Governance
by Stuart S. Malawer
Electronic copy available at: http://ssrn.com/abstract=1437002
INTERNATIONAL PRACTICE SECTION | Vol. 58 | February 2010 | VIRGINIA LAWYER 29 www.vsb.org
• Have traditional international law rules that
govern armed attack failed to keep current with
technology and digital warfare?
Within the last few months, various governmental and expert reports have been issued.
They include:
• Cyberspace Policy Review—Assuring a Trusted
and Resilient Information and Communications
Infrastructure (White House, May 2009) 13
• Cyber Security Strategy of the United Kingdom—
Safety, Security and Resilience in Cyber Space
(U.K. Cabinet Office, June 2009) 14
• Technology, Policy, Law, and Ethics Regarding U.S.
Acquisition and Use of Cyberattack Capabilities
(National Academy of Sciences and National
Research Council, 2009) 15
• Securing Cyberspace for the 44th Presidency—
A Report of the Center for Strategic and
International Studies Commission on
Cybersecurity for the 44th Presidency (Center for
Strategic and International Studies, December
2008).
16
Highlights from Recent Reports
Cyberspace Policy Review—Assuring a Trusted and
Resilient Information and Communications
Infrastructure (White House, May 2009)
This report was released in conjunction with
President Obama’s extended news conference on
May 29, 2009. It states that the federal government is not organized to address cyberspace. It
acknowledges a need to conduct a national dialogue on cybersecurity and that national security
should be balanced with the protection of privacy
rights and civil liberties that are guaranteed by the
Constitution and that form the bedrock of
American democracy.
The federal government should cooperate
with other nations and the private sector to solve
cybersecurity problems: “Only by working with
international partners can the United States best
address these challenges”17. The report points out
a host of issues that need to be resolved, such as
defining acceptable legal norms for territorial
jurisdiction, sovereign responsibility, and the use
of force. Development of national and regional
laws to govern prosecution of cybercrime, data
preservation, and privacy presents significant
challenges.
The report declares that “the Nation’s
approach to cybersecurity over the past 15 years
has failed to keep pace with the threat”18
. The
report does not address cyber warfare. It does not
offer policies, but it notes a need for enhanced
international cooperation.
Cyber Security Strategy of the United Kingdom—
Safety, Security and Resilience in Cyber Space (U.K.
Cabinet Office, June 2009)
Shortly after the Obama administration
released its report, the United Kingdom released a
report on cybersecurity. Their reports say that
both the United States and the United Kingdom
“are increasingly concerned by what they deem to
be one of the 21st century’s biggest security risks:
the threat of cyber attacks”19
. The U.K. report, like
the U.S. report, calls for more international coordination. The report also calls for the creation of
a central office of cyber security.
One interesting quote puts the issue of cyber
attacks in a clear historical perspective: “Just as in
the 19th century we had to secure the seas for our
national safety and prosperity, and in the 20th
century we had to secure the air, in the 21st century we also have to secure our advantage in
cyber space. This Strategy—our first national
Strategy for cyber security—is an important step
towards that goal”20
.
The report acknowledges the need to comply
with core constitutional issues: “Our approach to
national security is clearly grounded in a set of
core values, including: human rights, the rule of
law, legitimate and accountable government, justice, freedom, tolerance and opportunity for
all”21.It further acknowledges that the national
security challenges transcend international
boundaries.
In discussing the proposed new office of
cyber security, the report declares that it needs to
“identify gaps in the existing doctrinal, policy,
legal and regulatory frameworks (both domestic
and international) and where necessary, take
action to address them”22
. Unfortunately, as in the
U.S. report, these shortcomings and defects are
not identified, let alone addressed.
Technology, Policy, Law, and Ethics Regarding U.S.
Acquisition and Use of Cyberattack Capabilities
(National Academy of Sciences and National
Research Council, 2009)
This report by the National Academy of
Sciences approaches more directly the task of
delineating the public policy and legal issues of
cyber warfare, but it does not give adequate proCYBER WARFARE: LAW AND POLICY PROPOSALS FOR U.S. AND GLOBAL GOVERNANCE
30 VIRGINIA LAWYER | February 2010 | Vol. 58 | INTERNATIONAL PRACTICE SECTION www.vsb.org
posals to confront it. It defines “cyber attack” as “deliberate
actions to alter, disrupt, deceive, degrade, or destroy computer
systems or networks or the information and/or programs resident in or transiting these systems or networks” 23
. This is distinguished from intelligence-gathering activity.
The report reviews the scant public writing on cyber attack
and cyber warfare that started in the mid-1990s. One of the
earliest studies addressing the strategic implications was published by the RAND Corporation.
24 While this newest report
does not provide an analysis of U.S. policy regarding cyber
attacks, it includes general findings and recommendations.
The authors hoped that their report would stimulate a
public discussion of cyber attack as an instrument of foreign
policy at the nexus of technology, policy, ethics, and national
security. They consider that cyber weapons are so different from
any other weapons that a new legal regime is needed. The
authors draw a historical analogy with the debate over and
study of nuclear issues fifty years ago. The report acknowledges
that the rise of nonstate actors raises new and novel concerns.
The authors consider that a legal analysis of cyber attacks
should be based upon the concepts of use of force and armed
attack as described in the U.N. Charter. The authors believe that
the law governing the legality of going to war and the law defining warlike behavior also applies to cyber attacks. The report
declares that “today’s policy and legal framework for guiding
and regulating the U.S. use of cyberattack is ill-informed, undeveloped, and highly uncertain” 25
.
The report concludes that “the conceptual framework that
underpins the U.N. Charter on the use of force and armed
attack and today’s law of armed conflict provides a reasonable
starting point for an international legal regime to govern cyberattacks” 26
. The authors recommend that the U.S. government
should find common ground with other nations regarding
cyber attacks.
Securing Cyberspace for the 44th Presidency— A Report of the
Center for Strategic and International Studies Commission on
Cybersecurity for the 44th Presidency (Center for Strategic and
International Studies, December 2008)
This report served as the basis for much of President
Obama’s speech of May 29, 2009, and its accompanying report.
The report concluded that cybersecurity is now a major
national security problem, that emerging U.S. policy must
respect privacy and civil liberties, and that a comprehensive
national security strategy should be developed that incorporates
domestic and international dimensions.
27 The report says that
there is a need to modernize authorities, and recommends that
the White House should take the lead. “U.S. laws for cyberspace
are decades old, written for the technologies of a less-connected
era. Working with Congress, the next administration should
update these laws.”28
Major Issue Confronting the U.S. and Global System
The United States and other nations should create a sustainable
global legal structure that promotes cooperation among nations
to confront cyber warfare. Laws that govern the use of force and
armed attacks under the U.N. Charter need to be clarified in
this digital era. President Obama’s reliance on a resurrected
notion of the “just war doctrine,” as enunciated in his acceptance speech for the Nobel Peace Prize in Oslo, further heightens the need for legal clarity.
29 Is the best defense against cyber
attacks the use of robust offensive actions in cyberspace, and is
it lawful? 30
The Convention on Cybercrime adopted by the Council of
Europe in 2001 is a good starting place, in addition to the U.N.
Charter, in formulating a strategy to update the rules of law and
to create a global governance structure to regulate cyber warfare.
31 The U.S. Senate ratified this convention in August 2006.
The convention highlights the many issues that play a role in
regulating cybercrime. It defines five criminal offenses: illegal
access, illegal interception, data interference, system interference, and misuse of devices. Even though the Russian
Federation is not a member of the Convention on Cybercrime
and argues that cross-border searches to investigate Internet
crime violates its constitution,
32 the complex issue of regulating
cyber warfare is addressed by this convention. National sovereignty, privacy and territorial integrity, and mutual assistance
should be considered in formulating a new strategy for cyber
warfare.
Proposal
Cyber warfare requires greater international legal and diplomatic initiatives—both bilateral and multilateral. Nations
have a mutual interest in limiting any resort to cyber warfare.
33 A limitation could help prevent the destruction of both
governmental and civil infrastructure and protect the welfare
of millions of people. As early as July 2000, the Russian
Federation submitted to the United Nations General Assembly
a draft resolution, “Principles of International Information
Security,” that would prohibit the creation and use of tools for
a cyber attack.
34
A diplomatic conference should be convened similar to the
naval and disarmament conferences in the interwar period.
35
Attendees could draft a global treaty to regulate cyber warfare
and create political institutions that would enforce the adopted
rules. The most important set of rules would limit the offensive
use of cyber warfare in international relations.
In the interwar period of the 1920s and 1930s, naval conferences limited the number of capital ships (battleships) of the
major powers that were capable of offensive operations.
36 The
general disarmament conferences limited the right to go to
war.
37 However, there were no limitations on the then newest
form of offensive weapons—the aircraft carrier.
38 It would
probably have been too late. Fleets of aircraft carriers were
already afloat. These diplomatic conferences provided “hallow
results” and “proved to be a monument to illusion.”39 Like
those aircraft carriers that subsequently attacked Pearl Harbor,
cyber warfare needs to be restricted and regulated.
The global community saw the consequences of the accumulated failure of the interwar conferences come to fruition in
the late 1930s and, for the United States, on December 7, 1941.
CYBER WARFARE: LAW AND POLICY PROPOSALS FOR U.S. AND GLOBAL GOVERNANCE
INTERNATIONAL PRACTICE SECTION | Vol. 58 | February 2010 | VIRGINIA LAWYER 31 www.vsb.org
This should be sufficient motivation to get it right this time, in
the twenty-first century.
Endnotes:
1 General Wesley Clark recently wrote that “There is no form of
military combat more irregular than an electronic attack. … It is
tempting for policymakers to view cyberwarfare as an abstract
future threat.” Clark and Levin, “Securing the Information
Highway: How to Enhance the United States Electronic Defenses.”
Foreign Affairs 2 (November / December 2009).
2 Virtual Criminology Report 2009—Virtually Here: The Age of
Cyber Warfare. 3 (McAfee 2009). This report, released late in
2009, discusses some of the broader and related issues of cyber
warfare as well as the implications for the private sector and
critical infrastructures.
3 This involves the use of such “weapons” as “logic bombs,” “botnets,” and microwave radiation that would be used to invade private, government, and military networks.
4 “FBI Suspects Terrorists Are Exploring Cyber Attacks.” Wall Street
Journal (November 18, 2009). Recent Chinese intrusions into
Google servers highlight the foreign policy implications of statesponsored computer intrusions for non-military reasons (commercial and censorship). This has set off a foreign-policy debate
in the United States over global Internet freedom parallel to the
emerging national-security debate over intelligence gathering and
cyberwarfare. “Patriotism and Politics Drive China Cyberwar.”
Financial Times (January 14, 2010); “Web Access is New Clinton
Doctrine.” Wall Street Journal (January 21, 2010).
5 “Cyberattacks Jam Government and Commercial Web Sites in
U.S. and South Korea.” New York Times (July 9, 2009). This attack
utilized roughly two hundred thousand computers that resulted
in denial of services to both U.S. and Korean government and
commercial websites. The attack utilized portions of the five-yearold MyDoom virus. Some experts consider this attack might have
been by ordinary criminals. “Crippling Cyber-Attacks Relied on
200,000 Computers.” Financial Times (July 10, 2009).
6 Only recently was it disclosed that militants in both Iraq and
Afghanistan used off-the-shelf technology to intercept live feeds
from U.S. Predator drones. “Officers Warned of Flaw in U.S.
Drones in 2004.” Wall Street Journal (December 12, 2009).
7 “Military Command Is Created for Cyber Security,” Wall Street
Journal (June 24, 2009).
8 “Beyond a cyber command, the Pentagon is grappling with a
dizzying array of policy and doctrinal questions involving cyber
warfare.” “Questions Stall Pentagon Computer Defenses.”
Washington Post (January 3, 1010).
9 “U.S. and Russia Differ on a Treaty for Cyberspace,” New York
Times (June 28, 2009).
10 “Obama Outlines Coordinated Cyber-Security Plan,” New York
Times (May 30, 2009).
11 “Obama Names Howard Schmidt as Cybersecurity Coordinator.”
Washington Post (December 22, 2009).
12 This is a new American approach that differed from its earlier
position that both the commercial and military use of software
should be discussed together. “In Shift, U.S. Talks to Russia on
Internet Security.” New York Times (December 13, 2009).
[Hereinafter cited as U.S.-Russia Talks.]
13 Cyberspace Policy Review—Assuring a Trusted and Resilient
Information and Communications Infrastructure (White House,
May 2009). [Hereinafter cited as Obama Policy Review.]
http://www.whitehouse.gov/assets/documents/Cyberspace_
Policy_Review_final.pdf
14 Cyber Security Strategy of the United Kingdom—Safety, Security
and Resilience in Cyber Space (U.K. Cabinet Office, June 2009).
[Hereinafter cited as U.K. Cyber Report.]
http://www.cabinetoffice.gov.uk/media/216620/css0906.pdf
15 Technology, Policy, Law, and Ethics Regarding U.S. Acquisition and
Use of Cyberattack Capabilities (National Academy of Sciences
and National Research Council, 2009). [Hereinafter cited as
National Research Council Report.] http://books.nap.edu/
openbook.php?record_id=12651&page=R1
16 Securing Cyberspace for the 44th Presidency—A Report of the
Center for Strategic and International Studies Commission on
Cybersecurity for the 44th Presidency (Center for Strategic and
International Studies, December 2008). [Hereinafter cited as
CSIS Report.] http://csis.org/files/media/csis/pubs/081208_
securingcyberspace_44.pdf
17 Obama Policy Review iv.
18 Id. v.
19 “Cyber Security Risk,” Financial Times (June 26, 2009).
20 U.K. Cyber Report 5.
21 Id. 10.
22 Id. 18.
23 National Research Council Report S-1.
24 Strategic Information Warfare: A New Face of War (Rand
Corporation 1996) as cited in National Research Council Report
viii. This report identifies the earlier writings from 1998 to 2009
discussing international law and digital warfare. Id. at note 5 at
viii. See also, Dept. of Defense, Office of General Counsel,
Assessment of International Legal Issues in Information Operations.
(Dept. of Defense 1999).
25 National Research Council Report S3.
26 Id.
27 CSIS Report 1
28 Id. 2.
29 “Remarks by the President at the Acceptance of the Nobel Peace
Prize” (December 10, 2009). http://www.whitehouse.gov/thepress-office/remarks-president-acceptance-nobel-peace-prize.
30 “U.S. Steps Up Effort on Digital Defenses.” New York Times (April
28, 2009).
31 Convention on Cybercrime (concluded in Budapest on November
23, 2001).
32 U.S.-Russia Talks.
33 Countries such as China and North Korea may view cyber
warfare as advantageous in an asymmetrical conflict with the
United States.
34 Cited in National Research Council Report at 10-9.
35 “Genuine disarmament was never attempted after World War I,
merely arms reduction and limits on certain types of naval
weapons.” T. Bailey, A Diplomatic History of the American People
654 (9th edition, 1974). [Hereinafter cited as Bailey.]
36 “The Five-Power Naval Treaty of Washington” (signed February
6, 1922); “The London Naval Conference” (signed April 22, 1930);
“The Second London Naval Conference” (signed March 1936).
37 “The Pact of Paris” also known as “The Kellogg-Briand Pact.”
(signed August 27, 1928).
38 Bailey note 10 at 640.
39 Id. 648, 650.
CYBER WARFARE: LAW AND POLICY PROPOSALS FOR U.S. AND GLOBAL GOVERNANCE

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