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Articles 1 - 28 of 28
Full-Text Articles in Law
In Defense Of Pure Sovereignty In Cyberspace, Kevin Jon Heller
In Defense Of Pure Sovereignty In Cyberspace, Kevin Jon Heller
International Law Studies
States currently endorse three different positions concerning the international wrongfulness of cyber operations that penetrate computer systems located on the territory of another state but do not rise to the level of a use of force or prohibited intervention. The first position is that such low-intensity cyber operations are never wrongful, because sovereignty is a principle of international law, not a primary rule that can be independently violated. The second is that low-intensity cyber operations are always wrongful, because sovereignty is a primary rule of international law that is violated by any non-consensual penetration of a computer system located on …
Intelligence Sharing In Multinational Military Operations And Complicity Under International Law, Marko Milanovic
Intelligence Sharing In Multinational Military Operations And Complicity Under International Law, Marko Milanovic
International Law Studies
This article examines the international legal framework applicable to intelligence sharing in multinational military operations, with a particular focus on complicity scenarios. It first provides a theoretical overview of the role of fault in complicity, of how intent and knowledge can be conceptualized, and of the attribution of fault to States. It then looks in detail at the rule codified in Article 16 of the International Law Commission’s Articles on State Responsibility, and argues that this rule is best understood as employing multiple modes of fault (direct and indirect intent and wilful blindness). The article also argues that international humanitarian …
The Plea Of Necessity: An Oft Overlooked Response Option To Hostile Cyber Operations, Louise Arimatsu, Michael N. Schmitt
The Plea Of Necessity: An Oft Overlooked Response Option To Hostile Cyber Operations, Louise Arimatsu, Michael N. Schmitt
International Law Studies
States are increasingly focused on the measures—cyber or otherwise—that they can take in response to hostile cyber operations. Although cyber operations are usually responded to with acts of “retorsion” (acts that are lawful, although unfriendly), international law recognizes other self-help mechanisms that allow for more robust responses. In the cyber context, most attention has focused on countermeasures and self-defense. Yet, both are subject to various limitations that constrain their availability.
This article examines a further option, the so-called “plea of necessity.” It allows States to respond to a hostile cyber operation when the action taken would otherwise be unlawful but …
Cyber Attribution And State Responsibility, William Banks
Cyber Attribution And State Responsibility, William Banks
International Law Studies
We might expect international law to specifically address cyber attribution requirements due to the significance of attribution in framing the legal responsibility of States and the boundaries of responsive actions by victim States. However, there is little international law of cyber attribution, and what law there is exists largely by implication. Likewise, there is only a murky and highly contested law of State responsibility that theoretically constrains the vast majority of State-sponsored cyberattacks. Because victim States cannot engage in countermeasures unless they attribute a cyberattack to a State, attribution can serve simultaneously to constrain and empower victim States. However, the …
Application Of The Due Diligence Principle To Cyber Operations, Tomohiro Mikanagi
Application Of The Due Diligence Principle To Cyber Operations, Tomohiro Mikanagi
International Law Studies
The discreet use of proxies by States renders it difficult to prove attribution to States under the existing rules of attribution. On the other hand, the due diligence principle, if applicable, does not require attribution but can lead to the invocation of State responsibility for cyber operations emanating from the territory of other States. In the Corfu Channel judgment the ICJ recognized “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States,” and UN Member States agreed that existing international law applies to cyber operations. However, the UN Members …
Neutrality And Cyberspace: Bridging The Gap Between Theory And Reality, Noam Neuman
Neutrality And Cyberspace: Bridging The Gap Between Theory And Reality, Noam Neuman
International Law Studies
While there exists a broad consensus among States that international law generally applies to the cyber domain, particular views regarding the applicability of the law of neutrality have rarely been put forward, and presently there seems to be insufficient State practice and domain-specific opinio juris in this regard. Against this backdrop, several attempts have been made throughout the years to apply certain neutrality rules to cyberspace by referring to analogies from other domains. However, this legal regime provides an emblematic example of what the introduction of traditional rules of international law, formulated with the physical domains of warfare in mind, …
U.S. Recognition Of Japanese Sovereignty Over The Senkaku Islands, Raul (Pete) Pedrozo
U.S. Recognition Of Japanese Sovereignty Over The Senkaku Islands, Raul (Pete) Pedrozo
International Law Studies
Every U.S. administration from Truman to Kennedy recognized Japanese residual sovereignty over the Senkaku Islands. U.S. policy changed, however, to one of neutrality under the Nixon administration during the negotiations of the Okinawa Reversion Treaty. The change in policy was not based on a belief that Japan did not retain sovereignty over the islands, but rather was done to appease the Republic of China over its impending expulsion from the United Nations and to break an impasse of the ongoing textile negotiations with Taipei. The administration’s overtures to China, culminating in Nixon’s visit to China contributed to the decision. Since …
Legal Reviews Of War Algorithms, Tobias Vestner, Altea Rossi
Legal Reviews Of War Algorithms, Tobias Vestner, Altea Rossi
International Law Studies
States and scholars recognize legal reviews of weapons, means or methods of warfare as an essential tool to ensure the legality of military applications of artificial intelligence (AI). Yet, are existing practices fit for this task? This article identifies necessary adaptations to current practices. For AI-enabled systems that are used in relation to targeting, legal reviews need to assess the systems’ compliance with additional rules of international law, in particular targeting law under international humanitarian law (IHL). This article discusses the procedural ramifications thereof. The article further finds that AI systems’ predictability problem needs to be addressed by the technical …
Maritime Police Law Of The People’S Republic Of China, Raul (Pete) Pedrozo
Maritime Police Law Of The People’S Republic Of China, Raul (Pete) Pedrozo
International Law Studies
China’s new Maritime Police Law (MPL) purports to regulate the duties of China’s maritime police agencies, including the China Coast Guard, and safeguard China’s sovereignty, security, and rights and interest. The MPL has potentially far-reaching application, as China claims extensive maritime areas off its mainland and in the South China Sea. This expansive application of maritime law enforcement jurisdiction is problematic given that most of China’s maritime claims are inconsistent with international law. To the extent that the MPL purports to assert jurisdiction over foreign flagged vessels in disputed areas or on the high seas, it contravenes international law. Numerous …
Nuclear Terrorism: Statutory Shortcomings And Prosecutorial Opportunities, Rohan Mishra
Nuclear Terrorism: Statutory Shortcomings And Prosecutorial Opportunities, Rohan Mishra
International Law Studies
In 2016, President Barack Obama warned that “[t]he danger of a terrorist group obtaining and using a nuclear weapon is one of the greatest threats to global security.” Thus far, however, U.S. and international efforts to address nuclear terrorism have faced a fundamental dilemma: While the importance of preventing this threat is unquestioned, there has been limited opportunity or need to conduct prosecutions that hinge on nuclear terrorism charges. This dilemma reflects the current piecemeal approach to nuclear terrorism, which prioritizes policies that address the “back-end” risk of nuclear terrorism (i.e., the detonation of nuclear weapons or attack of nuclear …
Command Accountability For Ai Weapon Systems In The Law Of Armed Conflict, James Kraska
Command Accountability For Ai Weapon Systems In The Law Of Armed Conflict, James Kraska
International Law Studies
The use of artificial intelligence (AI) in weapon systems enhances the ability of operational forces to fuse multispectral sensors to understand the warfighting environment, positively identify, track, and select targets, and engage them with the most appropriate effects. The potential for AI to help close the “kill chain” has raised concern that this creates a gap in accountability between the decisions of humans and the acts of machines, with humans no longer accountable for decisions made during armed conflict. This study suggests that there is no gap because the military commander is always directly and individually accountable for the employment …
Maritime Autonomous Surface Ships: New Possibilities—And Challenges—In Ocean Law And Policy, Joel Coito
Maritime Autonomous Surface Ships: New Possibilities—And Challenges—In Ocean Law And Policy, Joel Coito
International Law Studies
Landmark developments in autonomous vessel technology have the potential to deliver economic, environmental, and security benefits on the world’s oceans. Tempering the promise of that future is the stark reality that maritime autonomous surface ships (MASS) challenge the existing international order of the seas. This article examines the promise and perils of MASS in three areas of enduring significance to commercial vessels, naval forces, and industry regulators: search and rescue (SAR), maritime counterdrug operations, and navigational safety. This article concludes that autonomous vessel technology will lead to a superior global regime for maritime SAR operations, enhanced detection and interdiction of …
Armed Conflicts In Outer Space: Which Law Applies?, Frans G. Von Der Dunk
Armed Conflicts In Outer Space: Which Law Applies?, Frans G. Von Der Dunk
International Law Studies
So far, outer space has merely become involved in terrestrial armed conflicts as part of the supportive infrastructure for military activities. Unfortunately, the risk that this changes is considerably growing, and it can no longer be excluded that (armed) force will become used in outer space, either directed towards Earth or within outer space itself.
This raises serious issues in the legal context, where space law so far has been premised on the hope that armed conflicts in outer space could be avoided whereas the law of armed conflict was not required so far to deal with the use of …
Responding To Hostile Cyber Operations: The “In-Kind” Option, Michael N. Schmitt, Durward E. Johnson
Responding To Hostile Cyber Operations: The “In-Kind” Option, Michael N. Schmitt, Durward E. Johnson
International Law Studies
Facing hostile cyber operations, States are crafting responsive strategies, tactics and rules of engagement. One of the major challenges in doing so is that key aspects of the international law governing cyber responses are vague, unsettled or complex. Not surprisingly, therefore, international law is markedly absent from strategies and operational concepts. Rather, they tend to take on a practical “tit-for-tat” feel as policymakers logically view “in-kind” responses as “fair play.” For them, responding in-kind surely must be lawful notwithstanding any challenges in discerning the precise legal character of the initial hostile cyber operation.
Testing that sense, this article examines the …
Introduction To The Indo-Pacific Command Paper Series, Raul (Pete) Pedrozo
Introduction To The Indo-Pacific Command Paper Series, Raul (Pete) Pedrozo
International Law Studies
No abstract provided.
Air Defense Identification Zones, Office Of The Staff Judge Advocate
Air Defense Identification Zones, Office Of The Staff Judge Advocate
International Law Studies
No abstract provided.
Archipelagic States, Office Of The Staff Judge Advocate
Archipelagic States, Office Of The Staff Judge Advocate
International Law Studies
No abstract provided.
Military Activities In The Exclusive Economic Zone, Office Of The Staff Judge Advocate
Military Activities In The Exclusive Economic Zone, Office Of The Staff Judge Advocate
International Law Studies
No abstract provided.
General Principles Of The Law Of The Sea, Office Of The Staff Judge Advocate
General Principles Of The Law Of The Sea, Office Of The Staff Judge Advocate
International Law Studies
No abstract provided.
U.S. Position On The U.N. Convention On The Law Of The Sea, Office Of The Staff Judge Advocate
U.S. Position On The U.N. Convention On The Law Of The Sea, Office Of The Staff Judge Advocate
International Law Studies
No abstract provided.
U.S. Protests China's Maritime Claims In The South China Sea, Office Of The Staff Judge Advocate
U.S. Protests China's Maritime Claims In The South China Sea, Office Of The Staff Judge Advocate
International Law Studies
No abstract provided.
Navigational Regimes, Office Of The Staff Judge Advocate
Navigational Regimes, Office Of The Staff Judge Advocate
International Law Studies
No abstract provided.
U.S. Policy On The South China Sea, Office Of The Staff Judge Advocate
U.S. Policy On The South China Sea, Office Of The Staff Judge Advocate
International Law Studies
No abstract provided.
The South China Sea Arbitration Award, Office Of The Staff Judge Advocate
The South China Sea Arbitration Award, Office Of The Staff Judge Advocate
International Law Studies
No abstract provided.
China's Excessive Maritime Claims, Office Of The Staff Judge Advocate
China's Excessive Maritime Claims, Office Of The Staff Judge Advocate
International Law Studies
No abstract provided.
International Straits, Office Of The Staff Judge Advocate
International Straits, Office Of The Staff Judge Advocate
International Law Studies
No abstract provided.
U.S. Freedom Of Navigation Program, Office Of The Staff Judge Advocate
U.S. Freedom Of Navigation Program, Office Of The Staff Judge Advocate
International Law Studies
No abstract provided.
Sailor-Scholar: Remembering Rear Admiral Horace B. Robertson Jr., Jagc, U.S. Navy (Ret.)
Sailor-Scholar: Remembering Rear Admiral Horace B. Robertson Jr., Jagc, U.S. Navy (Ret.)
International Law Studies
This volume is dedicated to the memory of
Rear Admiral Horace B. Robertson Jr.,
JAGC, U.S. Navy (Ret.)
November 13, 1923 – November 19, 2020