Current International Law is Not an Adequate Regime for Cyberspace

States have concluded that there seems to be no reason that international law, specifically the U.N. Charter and rules of customary international law (CIL) derived from the Charter's principles, should not apply to cyberspace. In fact, there is a significant reason: The Charter reflects a bias toward the conventional strategic environment, and CIL has evolved in the shadow of both the conventional and nuclear environments. Thus, the core features of these environments—segmentation, coercion, brute force, and episodic action—conditioned these principles and rules to embody the logic of strategic behavior where conventional and nuclear capabilities could "endanger international peace and security." None of these features characterize the cyber strategic environment. It should be unsurprising, then, that States have struggled to offer comprehensive and in-depth opinio juris on how international law applies to the cyber context. Until new instruments of international law, or interpretations of current law, account for the core features of the cyber strategic environment, the State behaviors they obligate, and how strategic advantage can be achieved lawfully and unlawfully through those behaviors, States will struggle to find cyber relevance in international law. In addition to explaining this perspective, this presentation proposes an adaptation to the rule of non-intervention informed by cyberspace's core strategic features.

Dr. Michael Fischerkeller is a research staff member in the Information, Technology and Systems Division at the Institute for Defense Analyses, a Federally Funded Research and Development Center. Michael has spent over 20 years supporting the Office of the Secretary of Defense, Joint Chiefs of Staff, and Combatant and Multi-National Force commanders. His areas of expertise are cyber strategy, strategic / operational concept development, and assessment, topics on which he has been published in numerous journals. Since 2016 Dr. Fischerkeller has published over a dozen peer-reviewed articles and essays developing the theory behind the cyber operational approach of persistent engagement and evaluating the alignment, effectiveness, and complementarity in cyberspace of strategies of defense, deterrence, defend forward / persistent engagement and, most recently, international law.