Collective Cyber Countermeasures?

12 Harvard National Security Journal 176 (2021)

39 Pages Posted: 8 Jul 2021

See all articles by Michael N. Schmitt

Michael N. Schmitt

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

Sean Watts

Creighton University School of Law; Lieber Institute for Law & Land Warfare, West Point

Date Written: July 6, 2021

Abstract

Countermeasures are established and instrumental aspects of the international legal system of self-help. Although they are of long lineage, countermeasures took center stage in international law discourse among States only with the advent of cyber operations as they appeared to offer injured States a legal basis for “hack backs.” This article examines the evolution of approaches to collective countermeasures initiated between States and reflected in the work of the International Court of Justice and the International Law Commission. Upon this groundwork, we survey and assess the international security conditions relevant to the issue of collective countermeasures, with particular emphasis on their use in cyberspace. We conclude that, though the issue remains unsettled as a matter of law, collective cyber countermeasures on behalf of injured States and support for the countermeasures of an injured State, are lawful.

Keywords: public international law, state responsibility, circumstances precluding wrongfulness, self-help, cyber, international relations

Suggested Citation

Schmitt, Michael N. and Watts, Sean and Watts, Sean, Collective Cyber Countermeasures? (July 6, 2021). 12 Harvard National Security Journal 176 (2021), Available at SSRN: https://ssrn.com/abstract=3881151

Michael N. Schmitt

University of Reading School of Law ( email )

Whiteknights
Reading, Berkshire RG6 6AH
United Kingdom

HOME PAGE: http://https://www.reading.ac.uk/law/Staff/m-schmitt.aspx

Lieber Institute, USMA at West Point ( email )

600 Thayer Rd
West Point, NY Rhode Island 10996
United States
4016190192 (Phone)
02871-5150 (Fax)

HOME PAGE: http://https://www.reading.ac.uk/law/Staff/m-schmitt.aspx

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

686 Cushing Road
Newport, RI 02841
United States

Sean Watts (Contact Author)

Lieber Institute for Law & Land Warfare, West Point ( email )

600 Thayer Rd
West Point, NY 10996
United States

Creighton University School of Law ( email )

2500 California Plaza
Omaha, NE 68178
United States

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