Yang Liu is a J.D./LL.M. in national security law candidate at Georgetown University Law Center. He wrote on a broad range of national security topics with a focus on the legal, policy, and philosophical challenges brought by great power competition.
Bridging International Law with Just Intelligence Theory: Towards a Normative Legal Framework for Cyberspace Competition
Cyber is not simply a new technology but a new and standalone domain. Thus, as many scholars correctly pointed out, norms governing cyberspace operations are less a question of applicability of existing international law but best described through the lens of cyber norm emergence. In developing such new norms, most scholars have advocated for a bottom-up approach, which focuses on state statements, practice, and specific cyber incidents. Such an approach is in congruence with the positivist approach to international law, which represents the mainstream international law jurisprudence.
However, as many scholars have correctly observed, one important reason why the cyber norms are developing slowly is that states are unwilling to be vocal and clear about their views on how to apply international laws to cyberspace. Instead, most states have chosen to adopt the so-called “wait-and-see” strategy. Such a choice is not unreasonable considering that cyberspace is a new domain the states’ understanding of which is still very lacking, so they are preferring not to be over-bound and preserve their operational flexibility. In light of such a background, this paper argues that it is not enough to rely simply on the positivist approach; instead, we also need a top-down perspective that can, on the one hand, be better aligned to the behavioral realities, and on the other hand, incorporate larger ethical principles. By introducing such a perspective, a consensus, at least among liberal democracies, will be easier to reach.
The first part of this paper will begin with a philosophical analysis of the nature of state cyberspace competition. It will conclude that cyberspace competition is an intelligence competition that can have strategic effects because of its possible scale. Therefore, it argues that one fundamental reason why international laws are hard to be applied to cyberspace is the lack of consensus on the legality of intelligence activities. The second part will then introduce a frontier theory of intelligence ethics - the just intelligence theory (JIT). It will conduct an interdisciplinary inquiry and consider the possible incorporation of the JIT framework into the development of cyberspace legal norms.