Navigating the Digital Battlefield: The United States’ Predicament

Modern warfare has evolved beyond traditional battlefields and is now being fought in a new arena: cyberspace. Cyber warfare has become a key element in modern defense and intelligence strategies, as states now face threats that target critical infrastructure, data, and financial systems.[1] The U.S. currently faces threats from state actors like Russia, China, and Iran, alongside non-state entities, also more than capable of causing mayhem.[2] As these conflicts continue to proliferate, questions about the adequacy of existing international laws have rightfully been asked.

Unlike traditional warfare, where laws are well-defined, the abstract nature of cyber conflict means it often falls outside the scope of existing frameworks.[3] International law traditionally classifies acts of war based on physical harm or property destruction.[4] However, cyber-attacks are often non-physical and thus pose questions about state accountability, sovereignty, and retaliation.[5]

On a domestic level, there have been attempts to address this issue. For example, the United States’ Department of Defense has incorporated cyber defense as part of its National Security Strategy and certain cyber-attacks are now recognized as acts of war.[6] Similarly, experts in Estonia have developed the Tallinn Manual, a document which defines the characteristics of a cyberattack and interprets how international law should apply.[7]

Despite these efforts, attempts to establish binding treaties have encountered resistance. There are significant hurdles in defining what constitutes a cyber-attack and many countries have expressed reservations about putting restrictions on their right to retaliate. Most importantly, however, human rights concerns are at the forefront of cyber conflict discussions.[8]

Notably, this August the United Nations finalized a draft of its Convention Against Cybercrime, which is expected to be formally voted on later this year.[9] While this represents a significant milestone towards achieving a binding international framework on cyber warfare, there are monumental concerns over the investigative powers stipulated in the treaty. Namely, that they could be used to enhance already intrusive surveillance practices in authoritative countries.[10]

The United States is thus in a very precarious position. If the US votes against the treaty, countries like Russia, Iran, and China could still be given an opportunity to amend the text and subsequently pass the treaty off as U.N. approval of their widespread surveillance measures.[11] If the US votes in favor of the treaty, it would thus be surrendering flexibility in a very complex and technical realm, and also could be enabling authoritative regimes.

As cyber conflict continues to challenge the boundaries of international law, it exposes the need for a dedicated legal framework that can balance sovereignty and security; without broader multilateral agreement, it will likely continue to operate in a legal gray zone. However, with the UN’s vote on the Cybercrime Treaty approaching, and the privacy and human rights of member states at stake, it is clear this issue should be at the forefront of contemporary legal discussions and should be garnering more attention than it currently is.

Brendan Barry is a staff member of Fordham International Law Journal Volume XLVIII.

[1] Tarah Wheeler, In Cyberwar There are No Rules, FOREIGN POLICY (Sept. 12, 2018), https://foreignpolicy.com/2018/09/12/in-cyberwar-there-are-no-rules-cybersecurity-war-defense/.

[2]Significant Cyber Incidents, Center for Strategic and International Studies (2004).

[3] Wheeler, supra note 1.

[4] Id.

[5] See James Andrew Lewis, A Note on the Laws of War in Cyberspace, Center for Strategic and International Studies (April 25, 2010), https://www.csis.org/analysis/note-laws-war-cyberspace.

[6] Cyber Strategy, Dep’t of Def., at 8 (2023).

[7] Wheeler, supra note 1.

[8] Id.

[9] Katitza Rodriguez, The UN General Assembly and the Fight Against the Cybercrime Treaty, Electronic Frontier Foundation (Sept. 26, 2024), https://www.eff.org/deeplinks/2024/08/un-general-assembly-and-fight-against-cybercrime-treaty.

[10] Id.

[11] Maggie Miller, White House Agonizes Over UN Cybercrime Treaty, Politico (Sept. 27, 2024) https://www.politico.com/news/2024/09/26/un-cybercrime-treaty-white-house-russia-00181271.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.