http://www.lawfareblog.com/2015/05/tallinn-2-0-and-a-chinese-view-on-the-tallinn-process/
By Ashley Deeks
LAWFARE
May 31, 2015
This past week, the NATO Cooperative Cyber Defense Center of Excellence
put on its annual Cyber Conflict conference in Tallinn, Estonia. The
conference boasted a number of experienced cyber-hands, including Adm.
Mike Rodgers, DefCon founder Jeff Moss, and law of armed conflict expert
Mike Schmitt.
One of the most interesting sessions, which included a presentation by
Mike, focused on aspects of the Tallinn Manual versions 1.0 and 2.0.
Version 1.0, produced by an independent group of experts, came out in
2013. It proffered what the experts saw as current black letter law on jus
ad bellum and jus in bello rules relevant to cyber operations. The Manual
includes both crisp articulations of the rules and more extensive
commentary setting out the legal basis for the rule and any differences
that arose among the experts. Version 2.0 picks up where Version 1.0 left
off, and will set forth the experts’ views on what international law
applies to cyber activity that falls below the level of armed conflict or
the use of force.
Mike previewed some of the topics that 2.0’s group of experts will
discuss, including customary rules related to sovereignty. As Mike notes,
sovereignty is not simply a factor restricting a state’s activities in
other states’ territory. It also is the basis for states to regulate and
exercise jurisdiction within their territory over people, hardware, and
cyber operations. One challenge for the experts will be to achieve
consensus on what types of activities by one state violate another state’s
sovereignty: what level of damage, intrusion, or alteration of data
suffices? Other norms up for discussion relate to due diligence
obligations by states to stop actions that produce adverse consequences
for other states, and the applicability of state responsibility (including
counter-measures and the use of “necessity” arguments). Tallinn 2.0 has
the potential to be even more influential than Tallinn 1.0, because it
systematically will address activities that are far more prevalent in the
cyber realm than uses of force or armed attacks.
Bill Boothby, a former Deputy Director of Legal Services for the UK Royal
Air Force, then provided a retrospective look at Tallinn 1.0. Mike Schmitt
had asked Bill to review all of the literature that offered reviews or
critiques of Tallinn 1.0, to assess whether to consider certain modest
amendments to the Manual’s commentary (though not to its black letter
rules) or to take up certain issues that Tallinn 1.0 did not cover. Bill
assessed that there has been huge interest in the Manual since it came
out, but that the Manual reflected “all reasonable positions” on the
issues it took up and that there were only a few amendments worth
pondering. In particular, Bill wondered whether the definition of what
constitutes a “cyber attack” might need to expand to include “major
disruptions” that nevertheless do not produce physical harm to the
affected state. He also asked whether the jus in bello rule on precautions
was ill-suited to cyber, given that states utterly have failed to
segregate their military cyber infrastructure from civilian cyber
infrastructure.
[...]
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