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Distinguished Scholar Discusses the Prospects of the Development of Legal Norms in Cyberspace

Michael Schmitt, Professor of Public International Law at Reading Law School (UK), the Francis Lieber Distinguished Scholar at the Lieber Institute of the United States Military Academy at West Point, Visiting Professor at the University of Texas Law School, and Strauss Center Distinguished Scholar, recently published a piece titled “Taming the Lawless Void: Tracking the Evolution of International Law Rules for Cyberspace” in the Texas National Security Review, which is co-sponsored by the Strauss Center. In it, he addresses what he labels the “myth of cyberspace:” that cyberspace is a lawless sphere devoid of any legal norms. Schmitt argues that norms not only exist, but also that states utilize interpretations of these norms in order to maximize “their response options when facing hostile cyber operations.” His article begins by providing a brief overview of various national and international efforts to create and utilize norms of state behavior in cyberspace. He notes in this section that states degree of investment in the evolution of international cyberspace norms will only continue to grow as states move more essential functions online. Schmitt then moves to discuss what he identifies as the three “means of normative evolution,” namely: new treaty law, new customary law, and interpretation of extant rules on international law. He argues that for an array of reasons, both new treaty law and new customary are unlikely means for the evolution of cyberspace norms, leaving interpretation of existing laws as the most feasible means for this development. Schmitt then delineates the legal-strategic options available for states to approach law’s evolution, with sub-sections dedicated to separate discussions of sovereignty, intervention, due diligence, use of force, response options. He concludes with a discussion of the general trends in the sphere of norms in cyberspace, noting that while obstacles do lay ahead, it is heartening to see the “commitment of many states to ensuring that cyberspace becomes and remains a rule of law domain.” Read the full article here.

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