Negotiation on Cyber Warfare

Abstract

In spite of the growing the risk that cyber capacities could be used as military tools no international agreement has been finalized so far to prevent a cyberwarfare involving sovereign states as well as non-state actors. States have different conceptual approaches and priorities when approaching this subject and discussing definitions. There are additional peculiarities. The possession and use of cyber weapons capacities are not visible. The author of an attack cannot be clearly identified, and non-state actors can play at the same level as national states. The operators of such weapons can hardly be included in the classical legal category of “combatant”. Most countries have already established cyber structures integrated into their military chains of command and fully dedicated them to cyber defense and cyber offense. The cases of the US, Nato, European Union and the United Nations. Cyberwarfare has not yet acquired a legal status of its own in spite of the fact that after land, sea, air and outer space, cyberspace has become the fifth domain in which states can confront each other militarily. States have not even started to negotiate any sort international regulation. The Tallinn Manual on the International Law applicable to cyber warfare has no international legal value but has the merit of having established some fundamental principles. It indicates that the norms applicable to cyber are the same as those applicable to the other types of weapons and in particular the International humanitarian law. Nothing prevents the international community from considering cyberwarfare also in a preventive mode, and to craft cyber-specific rules prohibiting cyber instruments capable of provoking catastrophic consequences. A general prohibition of possession and use of cyber offensive capabilities would ideally be the preferable solution but we are nowhere close to such a solution. An uncontrolled cyber incident could act as a shock absorber to prevent a conflict from escalating; it could also become a trigger for a wider confrontation that the international community cannot risk. The problem of how to address the security implications of a cyber world will be with us for the years to come. Better to address the issue in a preventive mode rather than subsequently to a possible cyber confrontation.

Outgoing Chair of the Missile Technology Control Regime (MTCR).

Submitted: 9.8.16; Accepted: 13.9.16.