Monica Sandu '24
Production Editor
We are living through one of the most volatile periods of the last decade. From Russia’s war in Ukraine to Iran’s freedom protests, the international landscape is dramatically changing. On Tuesday, February 21, the John Bassett Moore Society of International Law and the Virginia Journal of International Law hosted the 72nd Annual International Law Symposium. The headline topic was “China vs. Taiwan: Using Current Conflicts to Predict the Future,” aimed at answering that crucial question: What’s next?
War is as much a battle of information as it is bullets. The symposium’s first panel, “Cybersecurity’s Role in Conflicts,” centered around this technological battlefield.[1] Hosted by Veronica Glick,[2] Raymond Romano,[3] and Zhanna L. Malekos Smith,[4] and moderated by Professor Kristen Eichensehr, the panel discussed advancements and concerns in cyberspace, especially those relating to the war in Ukraine. The first major question concerned why Russia had not been as destructive in its cyberattacks as first feared in the early days of the war. First, massive cyberattacks are extremely costly. Second, there may be a greater value in keeping communication and data infrastructure intact, as they can be used to gather more information. Wiping everything out at once might cripple the opponent, but it also cuts off a valuable resource. Scorched-earth cyberattacks may thus be a Pyrrhic victory.
The panel noted that we’re not out of the woods yet. The biggest threat remains the potential targeting of physical infrastructure, such as dams and power plants, the effects of which would be devastating. It is also very difficult to trace who is responsible for cyberattacks and to identify the attack’s effects. How can you tell if a private citizen is working on their own, if they are conducting so-called “patriotic hacktivism,” or if they are acting directly at the behest of their government? How can you trace all harm back to a particular source? These challenges make prosecuting cybercrime extremely difficult, especially when certain digital actions may become a real-life act of war. Moving forward, the panelists identified several fields to keep an eye on: artificial intelligence; data sovereignty; and the risk of space debris, along with the potential offensive capabilities of space debris-cleaning satellites.
The keynote talk was given by Beth George, a partner at Wilson Sonsini and former Acting General Counsel for the U.S. Department of Defense. Like the name of the symposium suggests, George spoke about the future anticipated for Taiwan in light of Russia and Ukraine. Following a brief overview of the history of Taiwan, George discussed the constitutional challenges to mounting an American response should China attack Taiwan. Would the president have the independent authority to take the United States to war? George described how the Department of Justice uses a test based on the anticipated nature, scope, and duration for the use of armed forces to see if a given action would rise to the level of constitutional force. While low-level hostilities are unlikely to escalate, and the president may be able to act without infringing on Congress’s Article I power to declare war, the use of force against a sovereign such as China, rather than a non-state actor, inherently carries a high risk of escalation.
Next, George highlighted how the United Nations Charter forbids the use of force against the territorial integrity of another state. While China is a member state of the UN, Taiwan is not. Self-defense cannot be invoked by a non-state entity as a justification for the use of force. Because the United States does not officially recognize Taiwan as a sovereign state, instead choosing to keep the question of sovereignty ambiguous, George recognized that it may be difficult for the United States to intervene in case of an attack by China. Though Taiwan likely meets the requirements of statehood under the Montevideo Convention (a permanent population, a defined territory, a government, and the capacity to conduct international relations),[5] there is also a terrible precedent of recognizing a territory’s independence for the immediate purpose of using force to then defend it. In any scenario, war would be devastating—for Taiwan and for the whole world.
Nevertheless, George believes Taiwan would easily meet a national interest test, given the US’s strong presence in the region. Furthermore, justifications for the legitimate use of force have been widened to include humanitarian interventions, as well as the defense of nationals in peril. In a world as connected as ours, the role of international law ought to be the promotion of peace and the protection of our future.
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ms7mn@virginia.edu
[1] I was unfortunately unable to attend the second panel, “Current Trends in Maritime and Naval Conflicts.”
[2] Partner at Mayer Brown and member of the firm’s National Security and Cybersecurity & Data Privacy practices.
[3] Director, Cyber Threats and Investigations, U.S. Department of State.
[4] Senior Associate, Aerospace Security Project; Adjunct Fellow, Strategic Technologies Program, Center for Strategic and International Studies; Cyber Law & Policy Fellow, Army Cyber Institute, U.S. Military Academy.
[5] https://en.wikisource.org/wiki/Montevideo_Convention.