1.1. Charter of the United Nations 1945
The Charter of the United Nations of 1945 (U.N. Charter) records the wish to save succeeding generations from war; respect treaty obligations and international law; and maintain international peace and security. Specifically, it records that armed force shall not be used, save in the common interest.
The purposes of the U.N. Charter, Article 1 include taking collective measures for the prevention and removal of threats to peace and acts of aggression. Principles for achieving the objectives include settling international disputes by peaceful means that maintain international peace, security and justice, and refrain from force against the territorial integrity or the political independence of any state. Significantly, Article 51 recognises the inherent right of individual or collective self-defence if an armed attack occurs.
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of SELF-DEFENCE shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security (U.N. Charter Article 51).
The Charter of the United Nations, it’s Additional Protocol 1 (1977), and the Geneva Conventions (1864 – 1949)2 cater for pre-digital armed conflict.3 A voluminous and well documented record of military and academic literature on the evolution to digital conflict exists, which includes, what is now recognised as ‘cyberwar’ and ‘cyber warfare’. This paper, like the Tallinn Manual (2013) uses the terms ‘cyberwar’ and ‘cyber warfare’ in a purely descriptive, non-normative sense.
The regulatory framework relating to cyberwar and cyber warfare referenced in this enquiry is recorded in Additional Protocol 1 (1977), as (i) comprising international agreements (treaty law), (ii) the principles of international law derived from established custom, (iii) the principles of humanity, and (iv) the dictates of public conscience.
This background is included for context, and as a starting point for what I call the pre-digital system of legal order that has supported human societies for decades, and which has disintegrated as a result of the internet. It is this disintegration that propels the intended outcomes of this paper. Namely, to cooperate internationally by recognising national rules that already exist, and agreeing that these become new international norms for behaviour in cyberspace.
1.1.1. Precedent
At the outset, I would like to point to precedent in support of my contention that private enterprise, under national law, has been, and can continue to be, instrumental in shaping new international norms based on agreement through the law of contract. I believe this points to international solutions in relation to cyber warfare.
1.1.2. Lex Mercatoria
During the Middle Ages, merchants travelling across Europe to trade fairs, markets and seaports needed common ground rules to create trust and confidence for robust international trade. The differences amongst local feudal, royal and ecclesiastical law provided a significant degree of uncertainty and difficulty for the merchants operating in international markets (Reidenberg, 1998).
Custom and practice evolved into a distinct body of law known as Lex Mercatoria, a body of law independent of national laws which assured commercial participation and basic fairness in international trade relationships based on contract and consensus, despite the national law differences.
In the digital age participants travelling across information systems have confronted the same unstable and uncertain environments due to numerous national laws, changing rules and conflicting regulations which have arisen as a result of history, culture and religion, that are just as important for participants of the information society as the Lex Mercatoria was to merchants hundreds of years ago (Reidenberg, 1998).
Some twenty years ago, international consensus was reached by nations coming together to cooperate in the interests of international digital trade. The result was the recognition and facilitation of electronic transactions and communications as a result of the United Nations Commission of International Trade Law (UNCITRAL) model laws and conventions. To date, UNCITRAL has been responsible for the Model Law on Electronic Commerce, adopted in June 1996; the Model Law on Electronic Signatures, adopted in July 2011, and the Convention on the Use of Electronic Communications adopted in November 2005 which have shaped the modernisation and harmonisation of electronic commerce. The connection with cyberwar is that it is the startling success of the digital economy and human nature (including greed, opportunism and power politics), that have led to the breakdown of old norms and the need to find consensus on how we might restore trust and certainty to international relationships.
Social media behemoths, as private sector entities, regulate the behaviour of their enormous communities through the law of contract in the form of terms and conditions of the use of their platforms. This is Lex Mercatoria and Lex Informatica in operation. Billions of civilians from innumerable jurisdictions consent to behave in an acceptable manner.
My contention is that private sector entities can similarly cooperate to establish norms of behaviour that would result in new and acceptable forms of behaviour in cyberspace.