The decline of international humanitarian law opinio juris and the law of cyber warfare
Michael N. Schmitt and Sean Watts
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Texas international law journal, Vol. 50, issue 2, 2015, p. 189-231
Part of this article was also published under the title "State opinio juris and international humanitarian law pluralism" in International law studies, vol. 91, 2015, p. 171-215
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 law, 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.