Friday, November 27, 2009

Cyberwar: from fiction to fact

Computers rather than missiles could pose the biggest security threat of the future with nations able to cripple rivals by using cyberwarfare. Computer strikes could damage a country's infrastructure as well as defence equipment, cutting off communications, power supplies and military command systems. Major interference on a large scale can be generated by computer viruses. A computer hacker can launch an attack by infiltrating databases and destroying critical data in any industry, company or government organization. Imagine the devastation of a deliberate power outage or shortage in the water supply. We’ve seen the dire results when this occurs because of a natural disaster. Such conflict has the ability to completely incapacitate an economy. The use of computers and internet in conducting warfare in cyberspace, is becoming increasingly more sophisticated.
Players can be individuals, companies, governments, or military and unlike traditional conflict. This could also occur on a national, regional or global scale.
According to this report major countries and nation-states are engaged in a "Cyber Cold War," amassing cyberweapons, conducting espionage, and testing networks in preparation for using the Internet to conduct war. In particular, countries gearing up for cyberoffensives are the U.S., Israel, Russia, China, and France. Pinpointing the source of cyberattacks is usually difficult if not impossible, the motivations can only be speculated upon, making the whole cyberwar debate an intellectual exercise at this point.
Dmitri Alperovitch, vice president of threat research at McAfee, speculates for instance that the July 4 attacks denial-of-service on websites in the U.S. and South Korea could have been a test by an foreign entity to see if flooding South Korean networks and the transcontinental communications between the U.S. and South Korea would disrupt the ability of the U.S. military in South Korea to communicate with military leaders in Washington, D.C., and the Pacific Command in Hawaii.
There have been earlier attacks which indicates cyberwarfare too. Estonian government and commercial sites suffered debilitating denial-of-service attacks in 2007, and last year sites in Georgia were attacked during the South Ossetia war. According to the McAfee report, orchestrated by civilian attackers.

Cyberwarfare and international law
Existing international law in the area of cybercrime falls under three main umbrellas: the UN Charter, the Law of Armed Conflict (LOAC), and the Convention on Cybercrime. The UN Charter provides baseline law for interstate aggression, but is limited to considerations about force, which may not apply to cyberwarfare. LOAC conventions govern acts during wartime. The Convention on Cybercrime is a multilateral treaty that specifically addresses computer-related crime. Jon Jurich states, in his article in the Chicago Journal of International law, that these current international laws, attempt to govern the use of application of Information Warfare and to limit its use. They do not, however, impose a ban on weapons designed to disrupt electronic communications. Jurich concludes that the fast developments of using information warfare makes a new governing law, a necessity.
Cyberwar is no fiction anymore, it is a reality!

Books and articles in the Peace Palace Library Catalogue on cyberwar

Friday, November 20, 2009

400th Trade Dispute for World Trade Organization (WTO)

On 1 January 2010 the World Trade Organization (WTO) will celebrate its 15th birthday. Shortly before the anniversary the 7th Session of the WTO Ministerial Conference will take place for the second time in Geneva, Switzerland, from 30 November to 2 December 2009. Although Article IV: 1 of the Marrakesh Agreement Establishing the WTO stipulates that there shall be "a Ministerial Conference composed of representatives of all the Members, which shall meet at least once every two years……." it has been almost four years since the last conference in Hong Kong in 2005. Trade ministers will be discussing the general theme “The WTO, the Multilateral Trading System and the Current Global Economic Environment”. Unlike the six previous Ministerial conferences the Geneva Ministerial is not intended to be a negotiating session, but will be devoted to good governance and a review of the functioning of the WTO. The ongoing Doha Development Agenda negotiations are being dealt with seperately. The WTO is still awaiting successful conclusion on these negotiations.

On the subject of dispute settlement the WTO has more reason to celebrate. With an average of 27 disputes per year the WTO Dispute Settlement Body (DSB) received its 400th trade dispute on 2 November 2009. Canada requested consultations with the European Communities over the importation and marketing of seal products (European Communities — Measures Prohibiting the Importation and Marketing of Seal Products (DS400)), a few days later followed by a similar request by Norway (DS401)).

Both cases concern the recently introduced Regulation (EC) No. 1007/2009 of the European Parliament and the Council on Trade in Seal Products which prohibits the marketing of products derived from seals on the EU market.

After many years of campaigning by European citizens the new legislation addresses EU citizens' concerns with regard to the cruel hunting methods of seals. Seals are hunted mainly for their skin, fat, and meat, but there is a rising market for omega-3 capsules containing seal oil. The methods used to kill seals and their effectiveness vary considerably. These include shooting seals with bullets, clubbing, and catching them in traps and nets. Seal products include fur used in clothing and oil used in vitamin supplements. Canada, Greenland and Namibia account for around 60 percent of the 900,000 seals killed each year. The remaining 40 percent are killed in Iceland, Norway, Sweden, Finland, Britain and the United States.

The Regulation applies to seal products produced in the EU and imported products. It does not apply to transit through the EU. The marketing prohibition enters into force nine months after the entry into force of the regulation. During this nine month period the Commission will adopt and implement legislation necessary for the limited exemptions which are foreseen to respect the fundamental economic and social interests of Inuit and other indigenous communities, and the need to conduct hunting for the purpose of sustainable management of marine resources on a non-profit basis and for non-commercial reasons.

Judging by the statement of the European Commission’s spokesperson for Trade, Lutz Guellner, that the Commission would vigorously defend its position on this issue, the case will probably go all the way. According to Guellner the claim that the EU is not respecting its WTO obligations was unfounded. The measures adopted were not protectionist nor discriminatory and respond to concerns about the killing of seals and their commercialization which are widely held in the EU.


See for other existing EU Seals legislation: Council Directive 83/129/EEC ; Commission Directive 85/44/EEC and Council Directive 89/370/EEC

Thursday, November 12, 2009

Innocent passage in the territorial sea

It's not easy to define innocent passage in the territorial sea. The US Department of Defense gave it a try. I would like to pay attention to the definition McLaughlin gives in his shortly published book United Nations Naval Peace Operations in the Territorial Sea: "Although innocent passage is a single unitary concept, at first glance it appears to comprise two separable elements"(page 103).

The concept of passage is defined in article 18 United Nations Convention on the Law of the Sea (Montego Bay, 1982) as 'continious and expeditious' navigation through the territorial sea from and to any other sea zone. The passage, to be characterised as innocent, must not be prejudicial to the peace, good order and security of the coastal state (article 19 UNCLOS III).

Article 30 UNCLOS III states that 'If any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea immediately.'

Is the coastal state allowed to use force, and if so to what extent? What if the warship is acting in its ‘normal mode’ of operation?

In the Corfu Channel incident British warships passing the Corfu Channel were fired upon by Albanian guns. The warships were in innocent passage but their minesweeping operation afterwards was not innocent and constituted a breach of the territorial sovereignty of Albania.

The International Court of Justice in its judgment Corfu Channel (9 April 1949) ruled that

"It is, in the opinion of the Court, generally recognized and in accordance with international custom that States in time of peace have a right to send their warships through straits used for international navigation between two parts of the high seas without the previous authorization of a coastal State, provided that the passage is innocent. Unless otherwise prescribed in an international convention, there is no right for a coastal State to prohibit such passage through straits in time of peace."

McLaughlin argues that because the ICJ’s judgment was limited to the issue of warship passage through international straits, the subject matter of the Corfu Channel case is now governed by the regime of ‘transit passage’ and not of that of innocent passage.

A more recent incident took place at the Yellow Sea. At November, 10th Two Korean naval ships clashed and exchanged fire leaving the North Korean patrol ship set on fire. In peacetime the regime of innocent passage would be applicable here, because South Korea claimed the North Korean vessel was entering its territorial waters. The South Korean ships fired several warning shots after a patrol vessel crossed a disputed maritime border in the Yellow Sea off the west coast of the peninsula, said Seoul's joint chiefs of staff. Unfortunately the Koreas are still at war...

McLaughlin continues to explain two different schools concerning innocent passage. Some consider innocent passage as a concession of the coastal state; the implication would be that regimes require prior notification and authorisation for warship passage. Others prefer to characterise the territorial sea as part of the oceans and seas, the right of innocent passage must be viewed as an internationally defined and allocated right. The consequence is that regimes of prior approval for warship passage would be inconsistent with the nature of the territorial sea. (page 109).

Source: McLaughlin, R., United Nations naval peace operations in the territorial sea, Leiden : Martinus Nijhoff Publishers, 2009, XIV, 260 p


Books and articles in the Peace Palace Library Catalogue about innocent passage

Books and articles in the Peace Palace Library Catalogue about transit passage

External links:

Relevant articles United Nations Convention on the Law of the Sea about transit passage

Thursday, November 5, 2009

Fresh air for the EU

After 2 years finally the last ratification instrument of the Treaty of Lisbon (2007), the signature of the Eurosceptic Czech President Vaclav Klaus, has been implemented. The treaty will enter into force on 1 December 2009.
This was made possible after the Constitutional Court of the Czech Republic had announced its judgment this week, in very clear language, that the Treaty of Lisbon amending the Treaty on European Union (Maastricht 1992) and the Treaty establishing the European Community (Rome 1957) and its ratification are not inconsistent with the constitutional order of the Czech Republic.

Apart from the fear of loosing sovereign powers the ongoing debate on the Beneš-Decrees and the Czech Restitution Laws played an important role in the retarded acceptance of the Lisbon Treaty. The incompatability of these laws with the current European Convention on Human Rights, could invoke new claims from the Sudeten Germans, who were expelled from Czechoslovakia, deprived of their citizenship and properties after World War II.

But the Czech delegation negotiated an opt-out from the European Charter on Fundamental Rights, which is according to art 6 of the Treaty on the European Union as amended by the Lisbon Treaty, an integral part of the treaties.
Now the European institutions can start working on a more democratic, transparent and efficient Union. They must choose a new Commission, a new EU president (president of the European Council), and a person for the new post of High Representative for Foreign Affairs.

Then this unique international law phenomenon, this Union of Citizens and Member States (definition by Jaap Hoeksma, accepted by several gremia, a.o. the Dutch Parliament) can become also a really democratic Union.

Links to the PPL catalogue