International Law and Treaty
Author: Jojo
Reviewer: Leopold Stiegler
Version: 3.0
Introduction
The laws of Armed Conflict are based on two primary rules: ”jus ad bellum and jus in bello” [1], which means “right to war” and “justice in war” in English. The UN charter has provided the legal framework for the “Jus ad bellum”, which gives rules to guide a nation’s right to use force in self-defense. According to U.N charter, self-defense is admitted when an armed attack occurs against a member of United Nations. However, the applicability of these provisions of U.N chapter in cyberspace is ambiguous. Russia and USA has different views about how to apply the international laws to cyberspace. There is no widely recognized international treaty in place that establishes a legal definition for an act of cyber aggression. This article, as one part of group work, will discuss the current international laws of armed conflict and treaties of different countries. It also will present an analogy of other nuclear.
Law of armed conflict
In this part we will analysis the relevant laws of armed conflict in U.N Charter and different opinions about definitions of the basic element in armed conflict. We will also discuss some issues in current popular treaty: Tallinn Manual.
Article 2(4) of the U.N. Charter provides that member states declared the principle of Prohibition on Use of Force “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations” [1]. Nevertheless, there are two exceptions to the prohibition on the use of force. One is “Right of Defense” and the other one is “Security Council Authorization to Use Force” [2] [3].
The definition of “Right of Defense ” in article 51 of the U.N Charter said that ”Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council (SC) has taken measures necessary to maintain international peace and security.” This principle declared the self-defense is allowed under an armed attack.
Based on the above laws, we know that a self–defense can be trigged if the cyber-attack achieves the level of armed attack. There are three methods of determination for armed attack: the instrument-based approach, the target-based approach and the effects-based approach. Scholars do not have an agreement about which method should be used into the armed attack. The supporters for the effects-based approach thinks that the instrument-based approach is out of time, because they think cyber-attack generally does not use traditional military weapons [4]. Conversely, some other approach supporter considers that the effects-based approach is not following the U.N chapters, and the effects-based approach may cause the confusion of economic sanctions with the armed attack. Hence an economic sanction can cause the same impact as the armed attack such as the example of Iraq showed before [5].
In order to figure out the lack of international laws, some nations and scholars are trying to create a new law or a new explanation of international laws. The big divergence between nations is that Russia wants to create a new law such like what we did to nuclear and other chemical weapons. However, USA insists that current international is also enough to apply in cyber warfare [6].
Tallinn Manual makes an attempt to specification the issues in cyber security and cyber warfare. However, the scholars of china and Russia think Tallinn Manual trends into NATO (North Atlantic Treaty Organization). In addition, they point that Tallinn Manual is not a strict explanatory Munhall. They think Tallinn Manual creates some new rules and not from the current international law, although the Munhall itself declare it is a strict explanatory Munhall. According