{"id":6187,"date":"2012-12-12T16:15:48","date_gmt":"2012-12-12T21:15:48","guid":{"rendered":"http:\/\/www.journals.law.harvard.edu\/ilj\/?p=6187"},"modified":"2014-04-12T21:05:24","modified_gmt":"2014-04-13T01:05:24","slug":"online-articles-online_54_schmitt","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/ilj\/2012\/12\/online-articles-online_54_schmitt\/","title":{"rendered":"International Law in Cyberspace: The Koh Speech and Tallinn Manual Juxtaposed"},"content":{"rendered":"

In 2011, the White House issued the International Strategy for Cyberspace<\/i>, which noted that \u201c[t]he development of norms for state conduct in cyberspace does not require a reinvention of customary international law, nor does it render existing international norms obsolete.\u00a0 Long-standing international norms guiding state behavior\u2014in times of peace and conflict\u2014also apply in cyberspace.\u201d\u00a0 However, the document cautioned that the \u201cunique attributes of networked technology require additional work to clarify how these norms apply and what additional understandings might be necessary to supplement them.\u201d
\n<\/a><\/p>\n

On September 18, 2012, State Department Legal Adviser Harold Koh took an important step towards publically elucidating the U.S. positions on how international law applies to cyberspace.\u00a0At a conference sponsored by United States Cyber Command (USCYBERCOM), Mr. Koh offered brief answers to what he labeled the \u201cfundamental questions\u201d on the issue.\u00a0 He also identified several \u201cunresolved questions\u201d with which the United States would likely be forced to grapple in the future.\u00a0 Since the speech had been fully cleared in the interagency process, it can be viewed as reflecting the U.S. Government\u2019s views on the issues, not just those of Mr. Koh or the State Department.<\/p>\n

The timing of the speech was propitious.\u00a0 Less than three weeks earlier, NATO\u2019s Cooperative Cyber Defence Centre of Excellence (CCD COE) had released a draft the long-awaited Tallinn Manual<\/i>, due for formal publication in early 2013.\u00a0 The Manual is the product of a three-year project sponsored by the Centre in which an \u201cInternational Group of Experts\u201d examined, inter alia<\/i>, the very issues cited in the Koh Speech.\u00a0 Participants included distinguished legal academics and practitioners, supported by a team of technical experts.\u00a0 USCYBERCOM, the International Committee of the Red Cross, and NATO each provided an observer who participated actively throughout the project, albeit in a non-voting capacity.<\/p>\n

The Tallinn Manual<\/i> consists of \u201crules\u201d adopted unanimously by the International Group of Experts that are meant to reflect customary international law, accompanied by \u201ccommentary\u201d that delineates their legal basis and highlights any differences of opinion among the Experts as to their interpretation in the cyber context.\u00a0 A select group of peer reviewers offered comments on the various drafts, as did a number of states that were willing to informally and unofficially do so.\u00a0 The author served as Director of the Project.<\/p>\n

The relative congruency between the U.S. Government\u2019s views, as reflected in the Koh speech, and those of the International Group of Experts is striking.\u00a0 This confluence of a state\u2019s expression of opinio juris<\/i> with a work constituting \u201cthe teachings of the most highly qualified publicists of the various nations\u201d significantly enhances the persuasiveness of common conclusions.\u00a0Of course, the limited differences that exist as to particular points of law render the respective positions on those points somewhat less compelling.<\/p>\n

This article serves two purposes.\u00a0 First, it functions as a concordance between the positions articulated in the Koh speech and those found in the Tallinn Manual<\/i>.\u00a0 The comparison is particularly apropos in light of the parallels in their content.\u00a0 Second, drawing on the Tallinn Manual<\/i>, the article provides analytical granularity as to the legal basis for the positions proffered in the Koh Speech.\u00a0 In doing so, it usefully catalogues the various competing interpretive perspectives.\u00a0 The article is crafted around Mr. Koh\u2019s \u201cQuestions and Answers,\u201d which are reordered topically and set forth at the beginning of each section.<\/p>\n

Read full article (PDF)<\/a><\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

On September 18, 2012, State Department Legal Adviser Harold Koh took an important step towards publically elucidating the U.S. positions on how international law applies to cyberspace. Shortly thereafter, NATO\u2019s Cooperative Cyber Defence Centre of Excellence (CCD COE) had released a draft the long-awaited Tallinn Manual, due for formal publication in early 2013. The Manual is the product of a three-year project sponsored by the Centre in which an \u201cInternational Group of Experts\u201d examined, inter alia, the very issues cited in the Koh Speech. This article functions as a concordance between the positions articulated in the Koh speech and those found in the Tallinn Manual, and provides analytical granularity as to the legal basis for the positions proffered in the Koh Speech. 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