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The decline of international humanitarian law opinio juris and the law of cyber warfare

Schmitt, M. N. and Watts, S. (2015) The decline of international humanitarian law opinio juris and the law of cyber warfare. Texas International Law Journal, 50 (2-3). pp. 189-231. ISSN 0163-7479

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Abstract/Summary

This article sets forth thoughts regarding the performance of States, particularly the United States, in this informal process of the formation and evolution of international humanitarian, with particular attention paid to the IHL governing cyber operations. The discussion is decidedly non-cyber in nature. It is intentionally so, as the objective is to identify recent tendencies in the process that might foreshadow how IHL governing cyber operations is likely to develop absent a reversal of current trends. Our examination suggests that non-State actors are outpacing and, in some cases displacing, State action in both quantitative and qualitative terms. States seem reticent to offer expressions of opinio juris, often for good reasons. We argue that such reticence comes at a cost ⎯ diminished influence on the content and application of the IHL. In our view, States have underestimated this cost and must act to resume their intended role in the process

Item Type:Article
Refereed:Yes
Divisions:Faculty of Arts, Humanities and Social Science > School of Law
ID Code:89808
Publisher:University of Texas School of Law

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