The Decline of International Humanitarian Law Opinio Juris and the Law of Cyber Warfare

43 Pages Posted: 18 Aug 2014 Last revised: 5 Jun 2015

See all articles by Michael N. Schmitt

Michael N. Schmitt

Naval War College - Stockton Center for the Study of International Law; University of Exeter Law School; Lieber Institute, USMA at West Point

Sean Watts

Creighton University School of Law

Date Written: August 16, 2014

Abstract

This article sets forth thoughts regarding the performance of States, particularly the United States, in this informal process of the formation and evolution of international humanitarian, with particular attention paid to the IHL governing cyber operations. The discussion is decidedly non-cyber in nature. It is intentionally so, as the objective is to identify recent tendencies in the process that might foreshadow how IHL governing cyber operations is likely to develop absent a reversal of current trends. Our examination suggests that non-State actors are outpacing and, in some cases displacing, State action in both quantitative and qualitative terms. States seem reticent to offer expressions of opinio juris, often for good reasons. We argue that such reticence comes at a cost ⎯ diminished influence on the content and application of the IHL. In our view, States have underestimated this cost and must act to resume their intended role in the process

Keywords: humanitarian law; cyber; opinio juris, law of war,customary law

Suggested Citation

Schmitt, Michael N. and Watts, Sean, The Decline of International Humanitarian Law Opinio Juris and the Law of Cyber Warfare (August 16, 2014). Texas International Law Journal, Vol. 50, 2015. Available at SSRN: https://ssrn.com/abstract=2481629

Michael N. Schmitt (Contact Author)

Naval War College - Stockton Center for the Study of International Law ( email )

686 Cushing Road
Newport, RI 02841
United States

HOME PAGE: http://www.usnwc.edu/Academics/Faculty/Michael-Schmitt.aspx

University of Exeter Law School ( email )

Streatham Court
University of Exeter
Exeter, EX4 4QJ
United Kingdom

HOME PAGE: http://socialsciences.exeter.ac.uk/law/staff/mschmitt/

Lieber Institute, USMA at West Point ( email )

600 Thayer Rd
West Point, NY 10996
United States

Sean Watts

Creighton University School of Law ( email )

2500 California Plaza
Omaha, NE 68178
United States

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