Cyber Attacks as "Force" under UN Charter Article 2(4)
I a 2010 article in Foreign Affairs, Deputy Secretary of Defense William Lynn revealed that in 2008 the Department of Defense suffered “the most significant breach of U.S. military computers ever” when a flash drive inserted into a US military laptop surreptitiously introduced malicious software into US Central Command’s classified and unclassified computer systems.1 Lynn explains that the US government is developing defensive systems to protect military and civilian electronic infrastructure from intrusions and, potentially worse, disruptions and destruction, and it is developing its own cyber-strategy “to defend the United States in the digital age.”2 To what extent is existing international law, including the UN Charter, adequate to regulate cyber attacks and related offensive and defensive activities today and in the future? By “cyber attacks” I mean efforts to alter, disrupt, degrade or destroy computer systems or networks or the information or programs on them.3 This article examines one slice of that legal puzzle: the UN Charter’s prohibitions of the threat or use of “force” contained in Article 2(4).4 Other writings in this volume deal with questions such as Article 51’s self-defense provisions and questions of State responsibility, and there are other international legal prohibitions and regulations that are relevant as well. But Article 2(4) is a good place to start
Assessing Claims to Revise the Laws of War
For better or worse, participants in a civilization of science and technology are locked in a relentless process of research and a frenzied, competitive drive to apply the results wherever they promise enhanced productivity and profit. Each innovation stimulates further innovations and the juggernaut of development roars on. As for the law that would regulate it all, thanks to its characteristic deliberative and measured methods, it often lags behind the innovations, leaving intervals of legal gap in which authority becomes uncertain. Weapons and their delivery systems are no exception to this dynamic. They, too, evolve inexorably, as do the identity, character, and modus operandi of manifest and latent adversaries. The first imperative of every territorial community—hence the first imperative of the international law that these communities have created—is provision for national defense. That part of the legal regime that establishes the licit means and modes for the maintenance by each community of its national defense is necessarily a response to the common needs and common interests of politically relevant actors in the system. Their felt necessities determine the content of the law and, in its crafting, take account of a wide range of factors, such as the current and projected technology and quanta of weapons; their modes of application; geography and geostrategic implications in specific contexts; and, of course, the characteristics, objectives, and capacities of manifest and latent adversaries. When some of these factors change to the point that communities can no longer assure their defense within the ambit of inherited law, those charged with national defense inevitably demand changes in the law.
The Internet and the Changing Beijing-Taipei Relations: Toward Unification or Fragmentation?
Information and its technologies facilitate the exercise of what has been called “soft power,” a concept that differentiates information from the conventional dimensions of “hard power,” which is mainly associated with military force and economic influence. Soft power, according to Nye, a former Assistant Secretary of Defense of the United States, means that “A country may obtain the outcomes it wants in world politics because other countries want to follow it, admiring its values, emulating its example, aspiring to its level of prosperity and openness. In this sense it is just as important to set the agenda in world politics and attract others as it is to force them to change through the threat or use of military or economic weapons.”1