Navigating Conflicts in Cyberspace: Legal Lessons from the History of War at Sea

63 Pages Posted: 17 Sep 2014

See all articles by Jeremy Rabkin

Jeremy Rabkin

George Mason University School of Law

Ariel Rabkin

Princeton University - Department of Computer Science

Date Written: September 15, 2014

Abstract

Despite mounting concern about cyber attacks, the United States has been hesitant to embrace retaliatory cyber strikes in its overall defense strategy. Part of the hesitation seems to reflect concerns about limits imposed by the law of armed conflict. But analysts who invoke today’s law of armed conflict forget that war on the seas has always followed different rules. The historic practice of naval war is a much better guide to reasonable tactics and necessary limits for conflict in cyberspace. Cyber conflict should be open — as naval war has been — to hostile measures short of war, to attacks on enemy commerce, to contributions from private auxiliaries. To keep such measures within safe bounds, we should consider special legal constraints, analogous to those traditionally enforced by prize courts.

Keywords: attribution, cyber attack, cyber retaliation, cyberspace, cyber strike, enemy commerce, jus ad bellum, lawful combatants, merchant ships, naval war, permissible targets, private auxiliaries, prize courts, treaties, war at sea

JEL Classification: K33, N40

Suggested Citation

Rabkin, Jeremy and Rabkin, Ariel, Navigating Conflicts in Cyberspace: Legal Lessons from the History of War at Sea (September 15, 2014). Chicago Journal of International Law, Vol. 14, No. 1, pp. 197-258, 2013; George Mason Law & Economics Research Paper No. 14-43. Available at SSRN: https://ssrn.com/abstract=2496625

Jeremy Rabkin (Contact Author)

George Mason University School of Law ( email )

3301 Fairfax Dr
Arlington, VA 22201
United States

Ariel Rabkin

Princeton University - Department of Computer Science

35 Olden Street
Princeton, NJ 08540
United States

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