Cyber attacks and International law of armed conflicts from a “jus ad bellum” perspective - a glimpse of a recently published article

In last July, my article about Cyber attacks and International law of armed conflicts; a “jus ad Bellum” perspective was published in the Journal of International Commercial Law and Technology, Vol.8,  No.3 (July 2013), pp. 179-189.  It can be downloaded at SSRN http://ssrn.com/abstract=2011479.

The article is based on a presentation I made in 2009 at Winchester in the UK. It highlights the legal problems of cyber attacks from a ‘jus ad Bellum’ perspective (rules regarding the justification for entering a war). Today no international instrument whatsoever covers such cyber-attacks, and the analogies with other global solutions must be used accordingly.

The developments were taken from the leading powers' doctrine or practice (in the US, Russia, and China). 
At the analytical-legal level, the starting points are the provisions for the use of (armed) "force" under Article 2(4) and the “armed attack” under Article 51 of the United Nations Charter.  
There were inherent difficulties for characterizing cyberattacks under the actual framework of armed conflicts. Hence, the qualification of a cyber attack either as the use of “armed force” or as “armed attack” has employed the multi-criteria threshold developed by Michael Schmitt. Further developments concerned the capacity of International law concepts to apprehend other cyber-warfare characteristics. 

On the practical side, major nation-states with significant kinetic and cyberattacks capabilities (as the US, Russia, and China) seem aware of global risks. The real cyber-attacks show the States acting hidden behind private actors (in the case of Russia or China) or using highly specialized military forces (in the US). Nobody is willing to escalate computer network attacks to match the “armed attack” threshold (of Schmitt’s criteria) and risk triggering a legitimate defense and eventually a full-blown war. 

Finally, one might qualify these cyber uses as “cyber warfare” just as a metaphor. Under the actual international regulation, most cyber acts that can be (loosely) linked to a State belong to cyber exploitation, a new secret domain that increases States' reach.

One can reasonably hope that States with cyber facilities will achieve by such means their political aims, and they will stop the riskier developments toward real ‘cyber warfare.’ 

The “Jurisprudence of Interests” from Germany - a forgotten ancestor to the balance of proportionality in legal reasoning

I have published an article about Interessenjurisprudenz in Germany (available at http://ssrn.com/abstract=2011479).
The paper focuses on a methodological approach based on the balance of proportionality (rationality of conflicting consideration), which is our time's dominant legal reasoning.
The significant thinkers responsible for creating it were Oliver Wendell Holmes, in the United States, René Demogue, in France, and Philipp von Heck, in Germany.
There were specific influences between Continental Europe and the United States, which seem to have been forgotten today. While the technique of conflicting considerations has an abundant European genealogy, it has received its most elaborate form in the United States between 1940 and 1970.
In the early fifties, the Constitutional Court of Germany adopted this technique too. More recently, the European authorities such as the European Court of Justice or the European Court of Human Rights took proportionality as a usual instrument.

The first part of the paper evaluates Interessenjurisprudenz within the great methodological debate (Methodenstreit) on the role of judge, which emerged at the beginning of the twentieth century in Germany. 

The ancient conceptual methodology (Begriffsjurisprudenz) came under siege from methodological orientations like the “Free Law School” and the “School of Objective Interpretation.” The most effective challenger and winner of the debate was the Interessenjurisprudenz, developed by Von Heck at Tübingen. 

The second part of the paper articulates the main contributions and the specific vision of Interessenjurisprudentz regarding the judge's method.

The last part briefly assesses this school's actual significance for German legal space and other legal cultures (Anglo-Saxon and French).