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tv   Key Capitol Hill Hearings  CSPAN  October 30, 2015 10:00pm-12:01am EDT

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serve toes the vice president and codirector of the economics study program at the brookings -- and work -- is a senior economist at the white house council of economic advise years inch addition authorize work with the government she is a visiting a sis stand professor at johns hopkins university. her career has been one of public experience and her expertise in financial issues has provided critical insight in a time when middle class families are being squeezed more
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and more between risings costs and stagnant income. it's pri -- my great pleasure to bring dr. dynan to the stage. thank you very much. [applause] >> thank you. thank you, christian, for that very gracious introduction, and thanks for inviting me to participate. i'm really so glad that cap is digging in on this topic. in the two plus year i've been in the administration i learned things that have really unscoredded for me the importance of higher saving in the retirement context, and in other con texts as well. and i've also learned just how complicated. it is to develop policy options on those fronts. so, i think it's great you're digging in. i also will say i'm glad you assembled such an all-team of experts to participate in this
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conference, speaking to people who have influence, people's research. i've been in conception research for years now, and the group you had on the agenda this morning was just a group that is influenced me as well. so i'd like to thank that group for doing that important public service. today i'll offer some remarks that talk about the importance of saving and then after that get into the question of what policy can do and what the administration has proposed to foster higher savings. and so i'm going to start with the macro case for higher saving. so, the u.s. personal saving rate, which is loosely defined as saving net of new borrowing divided by aftertax income has declined markedly over the past several decades. americans saved 12% of their incomes on average in the 1970s. about nine percent on average in the 1980s, and about seven
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percent on average in the 1990s. since 2000, the personal saving rate has averaged just under five percent, which is about where it is today. and it's a very low level by historical standards. researchers don't entirely understand the source of the longer term decline in personal saving rate but some have pointed to lower interest raise, higher aggregate wealth, and a greater ability and willingness of households to borrow as possible contributing factors. whatever the reason, low permanent saving can be problematic for the growth of aggregate income and living standards. now, higher saving would have been detrimental as the economy struggled to recover from the great recession because it would have held back private demand. however, over the longer run, higher saving will increase our catch-all -- capital investments and increase the income we receive in the future. that statement is true even with
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the substantial international capital flows we have, as some of the additional saving would increase the capital stock in this country, which would raise productivity and wages in this country. the rei mainer would increase the capital we own overseas and therefore the returns we receive on the capital. so, that's the macro case. let me turn now to the crucial law a -- role that permanent saving plays for individual householdded. there are several parts of the case. first of all, individual households can getter cope with unforeseen instruction to their income and unestimated financial needs. before the financial crisis hoehold income volatility was increasing and a decline in income and the high rate of job loss and underemployment experienced as a result of the great recession served as a particularly painful reminder of the need for these sorts of recautionary reserves.
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second, saving provides individual households with opportunities. so, funds accumulated through savings can go used to pay for college few and is purchase big ticket items such as cars, saving puts household who wish to stab businesses in a better position do so, and given the tightening of credit standards and the wake of the financial crisis, saving is now even more important to attaining home ownership than it has been in the past. a 2014ford reserve board survey provides evidence on the importance of saving in this context of the 87% of young adults who were renting but said they would prefer to own if they could afford it, 59% cited a lack of a down payment as a factor holding them back. so, third, and this brings me to the theme you have been discussing all orange. saving is important for individual households because it allows hem tone joy a better standard of living and retirement.
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although most people will receive social security benefits when older, and some will receive regular payouts from defined benefit pensions, these sources of income are often not sufficient to make up for the stepdown in earnings that people experience at retirement. as a result many older households will need supplement these -- this income with accumulated wealth if they wish to maintain the consumption levels they had when younger, and the need for retirement saving has increased over time, given rising life expectancy. today more than three out of five 65-year-olds will reach age 80, which is a considerably higher share than in previous decades. unfortunately for all the potential benefits of saving, many households seem to have a great deal of trouble doing so. according to the 2013 survey of consumer finances, only 53% of households reported having saved over the preceding year.
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lower and moderate mcnews holds have especially low levels of accumulated assets. among households with heads between the age of 45 and 54, around the age that savings often peaks. the typical household had financial assets amounting to approximately one week of income. and had liquid assets that amounted to only a few days of income. the typical household in the next highest level had five and a half weeks of income in financial assets and just over one week in liquid financial assets. so while these latter households in the second highest level, the net worth distribution ex-they're in a better position to weather a temporary sprung to income but it october only shoulder a very sport period of -- short period of
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retirement. many households have insufficient savings. a 2011 brookings papp examined century day tata on people's able to withstand financial shock and determined that a quarter of u.s. respondents were financially fragile in that we were certain they could not come up with $2,000 in 30 days. including respondents reported probably being able to come up with $2,000, have the respondents would be viewed at financially fragile. low saving was a key underpin offering the result as people reported they most often turned to their open assets to deal with shocks in addition many americans report that adequate saving for retirement is a challenge in a 2014 gallup poll only half the respondents reported being confident they will have enough money to live comfortably in retirement. research validates this concern, and suggests in particular that households in the lower part of the income distribution are most
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luckily to be squeezed. so, for example, lower income households are much more likely to experience a material drop in their consumption as retirement than their higher income counterparts. this brings us to the crucial question of why people don't save enough, and how federal policy can encourage them to save more. so, to start, it's not uncommon to hear people say they can't afford to save. we lack research that concretely -- this phenomena and surgically it's the case that at least some of these people are not prioritizing saving for one reason or another. however it seems plausible some households are stretched too thin to be putting money aside. this problem has likely been ex-as sir behavioralled by the stagnation of wage thursday the lower and middle part of the income distribution over the past several decades. also my remarks on policy are going to be focused on initiatives that directly
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encourage saving. this consideration just adds to the need for policy measures like many of those proposed by the administration, and policy measures being researched by cap that are designed to support income growth for household inside the lower and middle parts of the income distribution. a second problem is that many of the tax incentives put in place to encourage saving have fairly little effect on the return to saving received by lower income households in particular, as this crowd knows, howholds in lower tax brackets achieve smaller reductions in their tax liability for each dollar of saving on a tax deductable forms and households with income so low thigh have no federal tax liability at all receive no benefits from savings tax prefer reines that are not refundable. a third and broader challenge is that many people aren't making the sort of rational calculations about saving that
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economists models often assume. economists predict that if a person saving will depend on several factors, including the return to saving as well hughes they expect their income to evolve however, the available evidence suggests that the incentives that policy has traditional through endure operated to encourage saving are changing the return on savings seemed to have limited effect on many people's decisions, including people who would benefit from the saving preferences. for example, in a comprehensive study cowritten bit your own john freedman, who was talking this morning. researchers examining the danish pension system, which is very much like ours can found only a minority of savers responded to -- in a way that roughly consistent with traditional economic theory. most individuals, 85%, were what
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the researchers termed passive savers, who did not respond to these incentives. so, what is it that blunts the responsible of many households to change return to saving? one significant factor is people are foe focusessed on other pots or their live. that's not necessarily irrational. i could probably do a show of hands in this room this morning to just demonstrate the fact. the thing is hat making the theoretically optimal decisions about saving takes both time and financial sophistication, and many households may rationally decide not to spend that time or acquire that sophistication. in addition, research has demonstrated that some households lack basic financial literacy, have particular difficulty planning, and are prone to making rudimentary financial mistakes. these findings can explain both
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insufficient saving and limited response among some types of households to complicate saving preference imbedded in the tax system. and local financial his rays probably contributed to limited use of retirement savings vehicles like iras, and not just because the tax benefits are not understood but also because the individuals have to teacakesive steps to research, set up and maintain these accounts. the lack of financial literacy among some households is even more worry some because of the shift from defined benefit pensions to defined contributions pensions which increases the need for personal financial responsibility. so between 1989 and 2013, the share of workers participating in defined benefit pension plans fell from 32% to 13%, while the share of participating in defined contribute plans increased from 25% to 38%. so, given these findings, what can we do to help people make savings decisions that will
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serve them better in the longer run? a key step in the right direction is to make saving e'er or more automatic. for example, again, that's crowd probably knows, a large body of research documents that employer-provided retirement savings program with automatic enrollment or default contribution rates can raise saving particularly for low income households. the challenge is that only 60% of american worked outside the military and federal government currently have players that offer 401(k)s, or retirement savings plans. the last part of my talk, i want to build on this point and describe four specific changes in federal policy that wean couraged saving. first, we should pass legislation consistent with the auto irra proposal in the president's budget to ensure that americans without access to a workplace retirement plan are automatically enrolled in an ira. under this proposal, every employer with more than ten employees that does not offer a
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plan would be required to sign up their workers for an ira. workers would be allowed to opt out of saving for the ira if they chose but many would save and would appreciate having this opportunity without having to figure out the logistics themselves. second, we should provide support for firms that enroll their workers in retirement plans. the president's budget proposes that that $3,000 tax credit for any employer with 100 or fewer employees that enroll is employees in an auto ira in addition the budget proposed tripling the existing startup credit so small employers who create retirement plans would receive a $4,500 tax credit, and small employers who already offer a plan and add automatic enrollment which receive a $1,500 tax credit. these credits would offset the administrative expenses that employers would bear and would provide incentives for more firms to enroll workers in retirement plans.
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third, we should ensure that partike wormers who have worked for their employers for sustained periods can contribute to their employer's retirement plan. less than 40% of part-time workers currently have access to a retirement plan in their workplace, and in part because employers are allowed to exclude employee who are work less than a thousand hours per year. the president's brought proposed requiring employers to allow employees who worked for them for at least 500 hours per year for three years to make contributions to their retirement plan. fourth, we should encourage broader participation in the mira plan program delved by treasury. mira is a know fee retirement savings option designed for people without access to retirement savings plan at work. people can arrange for contributions to be made automatically every pay day. this accounts stay with them if they change jobs and there's no cost could toning or maintaining an account.
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the investment is backed be the u.s. treasuries harks no risk of losing money. from a texas perspective the accounts are roth reys contributions are used making aftertax dollars and can we withdrawn without paying a penal and interest accrues until withdrawal. this year treasury works open a small diverse group of employers as part of the pilot phase of my ira to get feedback and ensure the user experience as simple and straightforward as possible. we are looking forward to to promoting myira more probably. you can learn about the program by visiting none of the policy options alone can spirally solve the problem of inadequate savings by households but it can make a significant difference in the
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total amount of savings and a significant difference in the financial security of any households. thank you, and i look forward to taking your questions. [applause] >> how does the promotion of auto ira a federal level interact from interests in the administration to promote state plans? >> so, that a great question. we're viewing -- so there's a lot of interest at the state level. my understanding is the least statistics i saw suggested that there's a handful of states who are pursuing it concretely, but if you add those to the states who are also considering doing it your getting half of the stated. we're taking this interest as
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strong signals that the president's proposal to view auto ira at the state level -- at the federal level is something that americans are very interested in and that people would really value. one of the complications that has arisen around the estate plans is there are some complications related to the his a rules and the administration is working on providing clarification. they've said they will -- the labor department will be issuing some clarification by the end of the year. >> finally, my other question that i had wanted to ask everybody here and that is when we talk about tax incentives, we talk about something like myira. aren't we making an already complex system even more
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complex? >> so the complexity issue is a running theme in my speech. i think that the complexity facing individual is a true barrier to saving. i think that the point of myira is to present something that is actually very simple and easy to use, from the person's point of view. it does add to a -- makes the system that we have to encourage saving bigger, but it's filling a necessary hole and from the individual's point of view it's actual lit not moving things in a more complex direction, it's moving things in a simpler direction. >> any -- yes. >> thank you for your presentation which was very good.
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the question is, has the administration thought about a program for older -- for retired people or to motivate -- let's say, giving a tax credit to employers, for example corks motivate them to employ more senior employees or retired people, because i think that might be another part of the solution of the retirement crisis, to provide more employment opportunities to people who -- 0 older people who want to work and are capable of working. >> so that's not something that is currently in our batch of proposals we include in the last president's budget. i think we are thinking all the time about labor force participation issues. we would like to reduce barriers to labor force participation for
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all age groups but certainly older households would be contributing there. we don't want to be pushing people into the labor force who don't want to be in the labor force, but certainly part of our agenda to create more -- create a workplace that is better suited to work-life balance includes encouraging employers to take steps that would give older workers kind of the flexibility that they need to be able to be in the work force if they want to do so. >> one more question, the last question in the very back. >> i'm from the national institute on retirement security itch was just on the last panel. the question about myiras.
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one of the things as some people have been talking about the states moving ahead with auto iras at the state level have heard some criticism that while you don't knee auto iras anymore because you have myeye razz, can you share comments about a good way to pond to those. >> thank you for asking that question. yes, so, myira is designed to be a starter savings account. so, in fact, contributions are limited to can think it's $5,000 or $6,000 a year and the total amount that can build up is $15,000. they're roth iras some you can rolled them over but one important design feature was ensuring that we we are filling a hole and complimenting the existing system, not in any way
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undermining the existing 401(k) system or ira system thatten, when done well-win one right, when done with best practicessestest actually serving people well. >> very thank you very much, karen. we're done for the morning weapon appreciate you coming over from treasury. thank you very much. >> thank you. >> every weekend, the c-span2 -- c-span network feature programs on books and american history. saturday night, politics and internet experts on whether social media hurts politics, and its effects on campaign 2016. and sunday evening at 6:30, texas legislators and other officials look at the hispanic vote in the 2016 and 2018 elections. and saturday, on c-span 2's booktv, starting at noon eastern, it's the 27th annual southern festival of books in narkville, featuring
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nonvisitation author presentations, including chris tine green on the community's reaction to the brown vs. board education ruling, and wendell pierce on hour hurricane katrina impacted his family's new orleans neighborhood, and the life of author jack london. and sunday at noon on in-depth, our live, three hour conversation with walter williams, respond ago your calls and facebook comments and tweets. on american history tv on c-span3, saturday evening, historian doll doyle looks at the view of the civil war and the perspective of foreign born soldiers who joined the cause, and sunday morning at 10:00 on oral histories, an interview with supreme court justice clarence thomas on his upbringing in the segregated south and the influence by his grandfather on his career.
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>> on the next online online. pentagon record -- the next "wall street journal," andrew tillman on sending more advisers to the middle east to help on the fight against isis. then a discussion about the w.h.o.'s' recent report linking processed meats to cancer we talk to the center for signs and the public interest, andant riley of the north american meat institute. and a look at republican efforts to impeach irs commissioner john amid accuracy cases he destroyed documents under subpoena. >> on newsmakers, texas congressman kevin brady, a member of the ways and means committee, talks about his interest in replacing paul ryan as chair of the committee as
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well as tax issues, the budget deal and the congressional agenda natural the new speaker, newsmakers, sunday at 10:00 a.m. and 6:00 p.m. eastern on c-span. >> next, war and the challenges of international law. a swiss foreign affairs official and other panelist spoke to center for strategic and international studies for an hour and a half. >> good morning, to you for coming. i am jim lewis. i work here. we have a really good panel today. we appreciate everybody coming out. i think it will be a lively skunk let me introduce "the mentalists." we'll -- the panelists to you. we'll tart with ambassador sell
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wigger from the swiss foreign ministry. a career diplomat who has worked at the u.n., happened establish the i.c.c. and now is the -- the first president of the -- >> was. >> hmm? >> i was elm that's what i said. we're in agreement. encouraging. and is clear through the head of the director of the public international on the legal adviser to the swiss foreign minimum city. lest next to him is a professor at georgetown's and the director of the institute for law, science, and global security, katherine has done a tremendous amount of work and she was the adviser to brent scowcroft, and was in the office of the general counsel at the cia at the start of her career. and is currently involved in so
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many international discussions i won't even list them. colonel gary brown to the left of the ambassador, is current lay professor at the -- professor of cyber security at the marine corps in quantico. prior that he was in the icrc here in the washington office and he has been in the judge advocates corps -- i thought you were in cybercommand, too. >> i was. >> and other military commands. so, very experiencees in this. finally, david simon, one of the 'named lawyers in "the new york times" article yesterday. he's looking down. i shouldn't have said that. former special counsel to dod. the general counsel's office for a long time, and currently is doing a lot with other security issues and one of the real experts we call on here in washington. so, i don't think we'll do very
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much. what he'll do is we'll ask the ambassador to make some opening ranks. after he speaks i'll ask each of the three panelists to comment, throw anywhere own views and then have a little interaction and throw it open for questions so much let's get started. >> thank you very much for organizing this event and for giving us this opportunity to discuss the challenges of new technology, and i would just like -- as you said, i'm the legal adviser of the swiss foreign ministry and i'd like to give my perspective on this issue, why are we interested, because switzerland is, as you national, of the super powers neither in terms of cyber space nor in terms of the development of laws, and by the way we're not really known for engaging activefully warfare. so what is our interest in the interest is very specific. switzerland, as you know, was
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always promoting -- and our aim is to keep them applicable to new threats, and over time we have encountered, all of us have encounters many new challenges to the application of international law, new technologies, new weapons of warfare, and the matter always is, can you use existing rules or do you have to adopt? to and that will be may take on it. if you have to adopt them, how best would you do that? that the work of diplomats bus that's where you get into the rules of conducting business. if you look be at the first international high -- humanitarian con sentence 1864, and since then we have known -- the revolution of warfare, and
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the issue of new technology came up very quickly. if you look at the, for example, the -- code the use of -- so they already dealt with references to it that would in their view not compatible with the -- international humanitarian law. so, if you look at further developments, you have the dum-dum bulletslets and all new western systems at one stage have to be dealt with. in fact there are two basic ways you can deal with them. either you outlaw them or you try to see how you can apply the existing law on them. and so my knowledge, the only system that was outlawed in the preventive matter was laser weapons. you have, air warfare, the
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treaty basis. you won't find much about air warfare. is was possible over time to apply the principle as i applicable to warfare, which today is probably one dish see you're much more expert 0 than i am -- is probably in the main activity in warfare. if you look at the law you won't find much and still it could be regulated. so if we now go to the challenges that the subject of this discussion here, cyber, and the first action would be, can you deal with them under existing law and can you apply the existing law? now, on cyber there was this u.n. group of governmental experts that issued two reports, which say that basically international law and in
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particular the u.s. chapter is applicable also to cyber space. interesting thing in our view about these two reports, which are the most -- document in the international arena for the time being, is that they cut out the applicability of u.s. humanitarian law. so that something still needs to be debated. likewise, on the laws, outlawing lethal weapon systems there were discussions of the use of conventional -- discussions in geneva and seemed to be -- still not a commonly agreed definition of law. there is a basic consensus that the law as we know it is applicable. this being said, that is not solve all the problems and that's where we come to the need
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for clarifications and that is something that in the past has always been done when you are placing a new phenomenon fannan, how to you apply to law. how can you really make it operational for the different questions. we know that in cyber space, there are specific questions that will have to be dealt with that are very difficult to solve if you just look at the few of them, how to define use in cyber space, how do you distinguish between military and civilian objects. all these questions, there are many questions. what is an armed attack, and try to stay -- at one stage there was probably have to be some kind of consensus, and the question is, how can we achieve a commonly agreed consensus? because as long as there is no international consensus, each
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and every country will apply the rules they think are -- they deem to be applicable. likewise, of course, the lethal tommic weapons systems and what degree of human control is necessary, for example, one of the main questions. or the whole issue of responsibility. how can you in the end ensure either state or individual responsibility if you have robots that are just running around and making war. is it, for example, possible to program robots to include in their programs very subtle judgments, value judgments, like, for example, how can you program that into the robot? and these matters will have to be solved at one stage, although, as i mentioned there, is a consensus in principle, we
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can apply the law, but we still have to know much more how we do that. and that is where my interest comes in as a diplomat. how can we achieve this kind of consensus, make sure that all have the same approach to these questions. the easiest answer would be, well, just codify them. just negotiate a new convention and then you have it. that on some issues may be the good approach, and has been in the past, mainly to outlaw some systems, land mines, and -- but to negotiate a conventions takes a long time, and then you have to wait until all the states ratify them, and that will take decades in many cases. so it's never very efficient way to deal with it. in the past few years there was -- because cod fix --
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codification and indicates reverted to what you call in law soft law mechanisms. a ccw group that looked into the issue. there were other attempts to cope with the phenomenon unanimous. the one that is most famous here is the phenomenon of security that came up big-time with the iraq war and to there were all these questions oh, do you apply existing international humanitarian law to private military security companies? to and there was process initiated in switzerland that assembled all the interest states, those who contract, private military and security companies the territorial state and host states, and try to come
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up with classifications of the existing law to understand what really is applicable to private military and security companies. although there was -- at the beginning, but it was not possible to find consensus between, for example, the territorial and the contracting states because it was sold that the divergence of views was to big. in the end wait possible to agree on a document. the document was then submitted and today there are 53 states that have signed it, among them the united states, which were very much part of the whole process. you have the united nations that applied, and you have nato that has formally signed it. so that is one approach to regulating in case it was possible to clarify and to find
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a consensus on these issues. and another possibility could be to -- if you look at the past, what different processes -- i mentioned a process that was a time -- other issues there were different processes and one of the -- of the processes are offer not regionally -- if you look, for example, at the -- to take one from cyber, which we're excusing here, the countries involved were mainly from the western world. now, if you wish to get the universal world that are respected by everybody, you have to try to give ownership also to other regions, and we are now in the process of trying to create a new regular meeting of states of the geneva conventions,
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dealing with international humanitarian law which would create a dedicated forum to discuss these matters and one possibility may be to then have the asking yous within a forum that would centralize and would ensure that you have all the different -- you would have the 197 parties of the geneva conventions assembled in one group and it would provide this -- for furthering a common understanding of this new challenge. it could be imaginable, for example to have discussions either on how to apply -- [inaudible] -- specifically and teal with some of the issues i highlighted, or -- what are the possibility but we would for the first time have the forum that
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really dedicated to the issues. not a u.n. ad hoc meeting created to deal with this bum focus on these questions. and that is where the diplomats come in because we then try on the basis what the experts come up with indications how to deal with matters, we would then have to try to channel them into political processes to make sure that international humanitarian law continues to be meaningful and applied also with these new technologies. thank you very much. >> i think i'm the only person on the panel whoa isn't a lawyer. so i don't know if that's good or bad. but i was the -- for the three successful group of u.n. government experts to wrote the language you're talking about. it's interesting, and i want to
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put a couple issues to at the group. wrote what house was a brilliant description of use of fours that was rejected. it said we prefer to keep the scenario national discretion. it's a very difficult issue. the preparation for the last round of the talk, the chair and i, independently, concluded that international law would not be the sticky point that norms would be the sticky point, and we were wrong, that the application of international law turn tout be the most difficult issue and we did not get agreement on it until 5:40 on friday night of the last day of the negotiations, which they ended at 6:00. so i was a damn close run. the use of force is -- it's not clear how you apply international law without defining this but going to be very difficult. other things you might want to think about, there's an interest in the one that comes up a lot in the u.n. is the application
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of the international law on drones and i hesitate to bring that up. the question for me is not so much robots but you have in the kinds of military activities, new technologies, new tactics and it will take a while to get agreement on how law applies. there is consensus -- i was surprise. you would think the russians and the chinese who we always pick on, would not be in favor of applying international law to the new terms of conflict. i don't think that's right. they don't have -- they're interested and be managed to slip some geneva language into the report without saying it came from the geneva conventions. it's a bit odd. they're willing to put the language in on proportionality and discrimination but we couldn't say it reflected international agreement. so just -- to think about how to deal with new technology. one question maybe be can touch on, related to mon troh, is both
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drones and fiber involved a high degree of clandestine activity and it's this worrying of distinctions between clandestine and military that is one of the things that makes it difficult to reach common understanding. so this is a project we're working on here for the rest of the greer cooperation with the u.n. how to rethink the application of international law so, with that, why don't i -- that's a gloomy opening from the trenches. it's very difficult to get agreement on these things. we thought it would be easy. and we'll just go down the row. please keep your questions relatively short and we'll have an interna active discussion. >> thank you very much. it's a pleasure to be here. i guess to be very brief i thought i would identify in this context the application of the new technologies and challenges and difficult questions and a couple principles that are
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informative and reflect some of the issues i saw in my time in the pentagon. in terms of challenges in this area with respect to the law of war i think that the recently published dod manual points out that this is an area that is not wellsel settled... even though tt and other governments are quick to point of the law board does not need to change, it does not need to of all, there was always room for discussion, debate and ultimately it's a matter of applying it to the specific circumstances. that is one challenge. how we can establish its application. the second challenge worth pointing out in the context of cyber operations is the question about exactly when jim was picking up on a moment ago which is the threshold question.
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cyber operations with all the threshold of the use of force. this is an issue that is not really addressed in a meaningful way in the first manual but in the second one it is thoroughly addressed. if you look at the president's remarks about the cyberattacks. 2015 view on cyber security or cyber strategy document that came out in april. it does not refer to the sony attack as one that would've reached the threshold by the article 51 or two for -- 24 of the u.n. charter. in both cases the remarks indicate there is a violation of some sort of normal state behavior. attack, the attack on health insurance companies. it's ready for these and categories of activities that fall below the threshold of the use of force. -4.tainly below 2
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forher legal work is needed an international legal framework including an international law or for cyber operations. those are the same kinds of questions we have to address with respect to autonomy and autonomous capability. they are difficult questions. what law applies? there is a debate about countermeasures, proportion. these are tough questions. was the difference between armed conflict and peace time? when is it not wartime? that are basic questions drive decisions that governments make about how they apply law. the dissension between combatants and civilians, especially with nonstate actors. andy questions about attribution which the relevant not only to cyber operations, but also relevant to operations involving nonstate actors.
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look at ukraine, yemen, syria today. these are all significant issues that have nothing do with cyber security or cyber operations percent. -- her say. the administration has been clear in striking this through a variety of speeches by lawyers and the administration. we have to make as much information about a legal framework as public as possible, mindful of the fact there are sources and methods in operational security considerations. look at the president archive speech going back to may of 2009. thing i flag in terms of principles is through this kind of openness you can really identify constraint. which are legal and policy nature. in which i'mss
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involved in limited ways. it does involve a number of other countries. russia and china are involved. they even have a law for lawyer involved. -- law firm lawyer involved. the role of the process underway and the debate about what we make of the response of the u.s. government or other governments respect to attacks like the sony attack. the only thing i point out is there is policy transparency here. if you look at the dod autonomy very clear that the role of international law will sort of be applied to the spec cannot only the design and development but the fielding and testing, the employment of these capabilities. i was one of the two lawyers involved in helping fashion that directive.
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i know it plays a significant role in thinking it through. the tough work is understanding with the technology is intended to do. and how the law will apply. those are the two things i mentioned in terms of principle and and with the notion that through identifying those constraints, legal and policy, we empower our decision-makers who are in a better position to cooperate and collaborate when a contingency does arrive. mr. lewis: a couple of quick notes. there is language in the last report that talks about that you agree not to attack critical infrastructure in ways not consistent with international law. the original phrasing was "you agree not to attack in peace time." there were some nations that objected to the word "peacetime." we put in consistent with international law.
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in a you agree not to attack critical infrastructure. you've agreed you only attack in a situation that is not covered by the law of warfare. 2-4,'s point about article the renunciation of the use of force to settle international disputes. an article 51 which is the inherent right of self-defense. there is an inherent ambiguity. there is an intentional ambiguity i think between a commitment by states not to use force and provision that allows them to use force. this is one of the more powerful tensions. we are in a different world. this is one of the problems i have with -- i was just at the u.n. last week. the issue that has come up as whatever rules we come up with left be rules that are acceptable and make sense to the nonaligned movement, the g-77, to the countries that are not participating. this is a crucial change.
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gary? >> thank you for asking me. this is a really fun topic. because there is a detachment of marines here i guess i should say i'm speaking on behalf of anybody else. even if i knew what they wanted me to say. autonomous weapon systems and cyber are perfect illustrations of how we need to work to apply international humanitarian law or what i will call law of conflict. they illustrate the two different ends of the spectrum. there are a lot of projects going on now with autonomous weapon systems. i've been involved in a few of them. we were really, really hard to come up with interesting legal issues that have to do with autonomous weapons systems. there are not any really. they are lawful. the current law covers them
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fine. everything is good where we are now. if we looked over the horizon in maybe 10 or 20 years down the road and talk about the -- artificial intelligence for the system is able to select and legallyarget legally -- -- lethally without a select set of criteria we are talking about artificial intelligence. that create interesting issues. and there is cyber which is always interesting but not really autonomous weapons systems. that is also like skynet, and we know that is a vanity of the is of the terminator thing. >> speak for yourself. [laughter] col. brown: and intelligence like that would probably decide humans are the problem. there are not really in issues right now. to some extent autonomous weapon systems are in place now. they can -- comply with a lot now.
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-- the law now. computers are really good for things like that. asm my perspective not quite a big -- as big a challenge assembly is to believe. cyber is completely unique. one of a given how we take the law of armed conflict and try to get it to apply the cyber warfare, especially today in the 30th of october, i am mindful of literally like i took my son's batman halloween costume and i tried to get in it. i might be able to stretch the thing enough for me to fit inside of it. in the end i might look something like a husky batman. but i would not really look like what it was meant to look like when it got to the end. my son looks like batman and i would like some other thing that is similar to batman. oac looks like when we apply to cyber.
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i will lay out three of them although there are many interesting things we can talk about here. two of them have to do the role of states in armed conflict. the first one is states and operations. one of the thing that traditional loac was premised on was the monopoly on violence. when you talk about large-scale military involvement, state on state, we have the rise of nonstate groups. we usually have a state on one side and that has sort of started to break down. it is sort of broken on the server side. most of the stuff that is going think, or ater we least a lot of it has to do with armed groups or individuals or individuals who are loosely affiliated with states are trading all types of problem with -- problems with the application of law. they are not interested in applying the law. that is sort of of the operations side.
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on the law side we talk about oac came of states, l out of the custom and practice of nations engaged in armed conflict. some things work in something different -- didn't. unlawful generally first. generally first because of the practice of state and sometimes later work caught a five -- codified. most of the time began as state practices. remember,k at cyber, this was made by the practice of states. not by the practice of individuals are nonstate groups. when we are talking about cyber operations, let's count all the operations at state 72 engaging in. -- states have admitted to engaging in. yes, not. -- none. we have saudi aramco, we have sony, and a lot of people pointing fingers about who might
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of them which are what. states are not putting up their hands and said we did in here is why we did it. this is really an impediment to the developing of law in the area. it is truly slowing. states are not ready to commit to what they want the law to be so they are not putting up their hands. we are very early stages. it's a big impediment to the development of the normal law of armed conflict. i'll talk about one more thing and that is sort of playing on something we talked about before. looking at the specific application of the law of armed conflict. most ofrmed conflict, the rules we had were developed through kinetic events. things break, things are destroyed, people are killed. all bad things. cyber operations and the lifeility of making
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difficult for civilians, damaging national security without all those things that operations have the potential forgot all the time. no kinetic effects. the law is not made to deal with those things. we can start by saying we should talk about functionality or loss of functionality which is what we talked about in the time group. i am not convinced it's a good again because whatever rules to make for cyber, we are changing the entire body of the law of armed conflict, it relates to kinetic warfare. will states agree to a world that if you limit the functionality of an object in kinetic warfare and somehow it is been damaged? will it apply if you drive military con creep across the bridge -- concrete abrazo bridge -- across a bridge? you're just using a bridge to cross it. there are all kinds of things
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that flow from trying to stretch this body. mr. lewis: there does appear to be implicit agreement on the threshold for what qualifies as the use of force or an armed attack. it's even explicit in some of the negotiations among states. that it has equivalent effect to kinetic effect, the cyber, it's always implicit understanding of this point. the difficult area is the gray area you talked about non-kinetic. i think one of the things they get lost in translation is this discussion of the use of force on an attack threshold and there is a separate threshold inside armed conflict for the application of rentable proportionality -- proportional. that was the point about
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countermeasures, the law of countermeasures is an important one. it is not been discussed as much of the cyber content. it was raised by one of the european delegations. you will probably see it come back. it's an important thing to think about. we will have catherine speech and the ambassador if he has any reaction and they go down the panel again and turn to you. thank you for coming today and think you for inviting me to speak i love the opportunity to talk to to just about anyone about international law. i do tend to go on for a long time but i work hard to keep my points limited. when we are talking about cyber or i will begin with a -- describing a definitional approach. autonomous weapons. i have been it many policy
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meetings and discussions with state leaders and i've often heard the expression that when a question comes up, does something riser level of use of force? i go up and start talking about international law and what principles we know and examples and cases are they had given us some limited insight. what i hear back from policymakers is catherine, that's nice and sweet but it -- the decided by people president of united states with the psyches of force and that is a political decision and not a legal decision. i strongly object to that. i'm glad we are talking about that today because at the end of the day it might be the president that authorizes the use of force, but it might not be internationally accepted as legitimate. for the use of force me to be considered legal under international law because you're responding to something that was
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less than an armed attack under the charter. from my perspective as a professor, someone who is practiced in the field, it is not just a political decision. certainly the states are involved in it is a legal decision and we learned from practice in the past that it's a not one for one state to decide on its own. if something is it legitimate use of force. this is exactly why this conversation is important and white has to be international. when you are trying to come to terms of something which is a challenge and new technology and development of it. what i find interesting in cyber and autonomous weapons like robots that have not yet been fielded into warfare, but is generally accepted is coming, is we have a unique opportunity. some of us are working on cyber for a long time. a couple of decades. most people are recently introduced to the topic as we see some of these very visible intrusions and hacks.
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in the autonomous weapons like robots we have an opportunity because i have not been fielded yet to actually set out procedurally what would be acceptable. we have the same -- think about a truly autonomous weapon. how to develop these because they are setting to be developed now. here are some thoughts i will say. the first debate on autonomous weapons is really one about whether these weapons are or thated under the law there is possible on lawful uses. i think gary said it. he made his position clear and i agree with him that there is nothing unlawful about these weapons. that goes for cyber. i will not like about drones because drugs technically -- -- i maketechnically them understand there is a difference between automated. drones are automated.
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autonomous these are is a human in the loop. is notonomous weapon here yet in terms of feeling them in the battlefield. when you think of robots and artificial intelligence. when we think about the debate i have to say this is one area i disagree with human rights watch. sometimes that happens. >> that is a good thing. luis and i agree on things that we will duke it out after the panel. they did cannot with a report. those of you interested in the legality of autonomous weapons, i highly recommend you read it. humanity: the case against human robots. " they say they are unlawful and unethical and i disagree with that. whether we have some weapons that international law and states have agreed to our unlawful, meaning you cannot use
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them. gary made it clear of his position so i'll align myself. these weapons are not illegal but about how we will regulate them in warfare. that is what will take a lot of effort amongst experts, technical experts, policy experts, legal experts. i will end with a few options. we may end up with an international estimate like a treaty. we may not have to. on the treaty discussion i will say it has been my position on new issues, threats, technologies developed over the years. i have been in the camp, and some have disagreed, we don't need a new international treaty to deal with these things. it first came up after 9/11. some people advocated we need any geneva convention to deal with nonstate actors. terrorists. i said don't need it. we can work with what we got. geneva convention is applicable to nonstate actors. that came up in cyber.
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-- many people said to me we need a new treaty. they believe still we need a new treaty. i am still of the position is not about creating any treaty but we have applicable law. we just need to know how it applies. that is the way the u.s. is going on that. u.s. about autonomous weapons. -- you asked about autonomous weapons. you must be cautious when you start drafting a new treaty. you do not know what you may end up with. why we think we might have a lot of foresight, you may be regulating yourself in a way that is unnecessary or actually bad. it takes a lot to negotiate treaties. we don't have that time. in the meantime what you should be doing is coming to agreement, states coming to agreement about what the rules of the road will be on these advanced weapons. here are some of the legal principles that are important to think about.
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--mentioned both areas of international law are very separate and need to be analyzed for autonomous weapons as a healthy comply with these principles. underside or we have agreements that the u.n. charter applies. autonomous weapons, we don't have that yet and that is for stacy to be working on that. in terms of cyber and autonomous, i say this example we have seen in the cyber -- 12 no state has a knowledge attribution for, experts have said it has to have been a state. we can talk about it at least in a hypothetical that the state used a weapon that is autonomous have cybere, you can weapons that are not just autonomous -- automated but truly autonomous. principlese legal for both cyber and autonomous
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weapons that needs to be considered. this is where i disagree with the human rights watch for i can counter some of the things they say. the three major principles in the rules of war, some of which were mentioned and i want to emphasize, you have to look at where the weapons are indiscriminate whether nature or not. i do not believe autonomous weapons by the very nature necessarily are indiscriminate. that would be an argument that would support human rights if i was wrong. unnecessary suffering. if the weapon is developed that causes unnecessary suffering, then it would be unlawful per se. the last principle on loac, harmful effect that are uncontrolled. you have to be able to scale back, reallocate in order to control the harmful effects. particulate to affect civilians. this can be built into autonomous weapons and so my argument is not necessarily
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unlawful. on the targeting law which gary is very familiar with as a former jack officer, -- jag officer, yet the build weapons that can discriminate and make the station between civilians and military personnel or those involved in hostilities. the weapon has to be able to operate in make decisions, or at least operate in a proportional manner. while we are talking about autonomous, it have to be -- has to be preprogrammed. and coordinate your tax. at times you have to have the weapon break off or alter the engagement. that needs to be built-in to the autonomous weapons, whether cyber or a robot. the presence of civilians has to come into the contemplation of developing these weapons. here are quick options. maybe you get an international instrument or a treaty. >> maybe we could come back to the option. i think that would part of our ongoing discussion.
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ms. lotrionte: ok. mr. lewis: that was a good lead-in. i was at the afghan basset of yes any reaction to what he has heard so far. one of the things we want to talk about his options. you should be thinking of questions. i have at least three. ambassador? ambassador zellweger: thank you very much. i would like to build up on something david said with transparency. that is applied to the night states. -- united states. my impression is there are not many countries in the world that have your level of knowledge about all these issues. maybe the united states it is transparent to a much larger degree than it is another countries. the challenge we will have to face is how your knowledge, because you are at the forefront of the development of these technologies in cyberspace, how can we make sure that the
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understanding of the applicable rules are shared by others? was a rather it restricted group. is that a highly technologyates with would move forward and lose the others. the important thing is to find international mechanisms. what you have discussed are to a large extent internal discussions in the united states. you mentioned the war manual mission -- issued by the pentagon. we need ways to share your knowledge and also to share the readiness that the united states development to find ways to apply this to the
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development. i'm not certain that this attitude is shared by others who maybe have not advanced as far as you are. there are other big powers that are now slowly proposing new legal rules. one of them has even proposed a dification in cyberspace. how can we know that those that have an interest in applying law to these new technologies, how can we make sure that we have a very abrupt consensus among the countries? you mentioned it is important to have the movement to help the others because at the end of the day they will follow. you mentioned the autonomous weapons. that may be in the hands of the few at the beginning and then
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everybody will have the. the rules setting will have to start now. for the time being we have problems but the earlier we start with a broad base consensus mechanism to find common agreements or common understandings, i think the better it is. to gary, your remarks on cyberspace to say it is like your batman costume. in the and you say there was no regulation possible because attribution will not be possible. -- willill live up to say that it is his or her attack. we have to find ways. i would like to give one example. you said to cable to establish between nonstate actors and governments and how they interact. i know that technically speaking it's probably very difficult to
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see who does what. would it not be possible, because we also have rules of law that regulate the relationship between the government and the private actors, would it be possible to a -- tried to develop these rules in cyberspace? it may be true as to how that might begin with the principle of when a government will have to take responsibility for the actor to be controlled or work -- it's probably a challenge to find a how we can apply it in cyberspace is. -- cyberspace. mr. lewis: that was going to be one of my questions. i may not be asking the right stuff. i save elect lack of expertise on how cyber worker is conducted over the effect of the weapon would be, a cyber attack would be, is a major impediment in negotiation.
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you have many nations who are deeply concerned they won't have a good understanding. and the public accounting of attacks is largely pathetic. they recently in the paper and it makes it a very -- it's much for difficult than others. the question i was going to add getting back to this state responsibility issue. the one that has come up repeatedly, although not with much clarity is the ruling of the international court of justice on the nicaragua case. it's painful for me personally. it comes up as a precedent in this area. gary, do you want to start? respond to ast to couple of things the ambassador said. first of all, my comments did not mean -- i did on me to play
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there would never be any regulation. all i'm saying is i'm not sure is the correct body of law. maybe if we stretch it to the point where it includes cyber operation, the costume tears and is no good for my son either. then nobody can wear it. loac works because of states agreeing on what the rules are. we don't do will this body of well andhas worked so connects because we are try to stretch it to apply to cyber operations. the one other direct point i as far asis that stating responsible for loosely affiliated civilians, my suggestion is let's start with a clear situation which is the europe that men in may be affiliated with some big power in europe and let's solve that problem. once we solve that, cyber will follow. muchinetic world has
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clearer rules and is properly futile to try to solve it in cyber. there are lots of other issues as well. we talked about attribution. ms. lotrionte: if i can build on -- inary said, the applying loac to new technology whether it is the autonomous robots or cyber weapons. you may disagree a little but i get his point that you don't want to twist and turn the law so much that you undo its intent. am of the position that the principle that underlines the traditional treaties of loac, geneva and hague, and in the artificial intelligence as it is time to be discussed in terms of how it would develop one day and be used. this is what i was happy in the human report they cannot 2015. 2015.ort that came out in
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there might not be states that feel comfortable invoking laws of armed conflict in that report , or geneva, the important port for me -- part for me is that they agreed the report to the principles that are codified in customary international law in loac. they actually said that if the principles of necessity, distinction, or discrimination, proportionality, and humanity apply. necessitateitaries deficit that he? that struck me as very telling. they have at least 20 states that were security council numbers and cyber powers like china, russia, the u.s. they all agreed to that. i think that is important. it does not think -- say geneva and the hague.
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they have told us in rendering decisions over the years that sometimes it is more important that the customary principles are probably -- applied. not necessarily a treaty was honored. responsibility, another i was happy to see in the human report both in the 2013 one and the 2015, the state responsibility was in that report. that goes to an important element we have nonstate actors that will continue to be engaged in military uses of force. how do you hold the state responsible for the actions of nonstate actors? this debate is that going on for years amongst professors, for a long time. until 9/11 there was quite a lot of split. after the u.n. recognized through its resolution that terrorist organizations could carry out an armed attack which trickled article -- triggered article 51, in another state we
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were not at war with, there were a few outliers still. colleagues that the international law that i disagree with. most people recognize this you cans not -- actually attribute the activities of nonstate actors to a state and then hold them accountable. here is where the debate still lies and people are still engaging in this. the two thresholds. the nicaragua case came up with a pretty high threshold which is hard to prove. they came up with effective control. that is high, meeting what kind of evidence you have to bring forth that shows that the state using proxies has effective control over those parties that were acting. it's been interpreted for the nicaragua case that the state has to knowingly show that the state is directing specific operations. they might not be doing that. we know in cyber they are not doing that. and other autonomous weapons they might be directing but what
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is the funding? you have a group willing to do you work in your face. weather is a company, academics, students at a university. i prefer you guys three someday, mike schmidt disagrees with me on this. the court lowered the threshold. that is my position. not international lawyers agree with that. they can but with a new threshold of overall control. this is key in cyber and i witnessed some boring and long articles that no one will ever read. here is the challenge. due diligence. that is the legal threshold. you have to show that the state failed to do its due diligence internal to its territory to prevent these nonstate actors individuals from harming others outside. it is vacuum international law.
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-- it goes back to international law. it will be determined in practice. having geeky lawyers get together and pump up the threshold, even with the russians, on the manuals. nicaragua turned out to be very influential in a discussion of how to think about applying international law to cyber -- ambassador zellwegerms. lotrio'd that. mr. lewis: when i hear other countries talk about it it's like what the heck is -- ms. lotrionte: on the manual i think it is very important. if there is a treaty on autonomous weapons and if it ever comes to play, that was my second option actually. what you need to start seeing is national laws or procedures being developed. the u.s. is been pretty transparent and our policies. the u.s. will not be able to be totally transparent
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because a lot of these directives will be classified. last year the year before i was in moscow. the icc had a small group conference about cyber. it was like 30 people in the room and the role russians and the in my colleagues from brigham young university. we were the only americans. we were concerned that the russians -- not that the russians were denying that it cyber operations which flies in the face of the public announcements. but they asked me whether the u.s. and manuals. i said without document anything classified i said the natixis is in clear that the law applies. the united states is clear that the law applies. the military starts developing manuals. most of the specific ones will be classified like a lever code and others. i said you should be happy we have manuals. can i ask you a question?
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do you have manuals? russian officials looked at me and said no because we don't the cyber operations. i said ok, end of story. [applause] [laughter] there are many of us around the globe that work together. that is the slow work of making progress. intensity not high-profile or sexy, pretty geeky. even if we never have a treaty, that i start an agreement. mr. lewis: did you want to add anything in the reagan turned to the ambassador? -- and then we can turn to the ambassador? mr. simon: can we look back and search the law exists? when i think about something that yogi berra said it's tough
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to make predictions about the future. there are cases like nicaragua to argue on both sides about questions of nonintervention principle. the proper channel is not well understood that important for understanding threshold, use of force, 2-4 and below. , the obama administration and an advisor laying out exactly how we think the law of armed conflict applies for cyber operations and he gets into specific effects. it rests on a physical effect in the real world as the basis for establishing there has been a use of force. that is something that a lot of countries -- the law of war manual was released, 1200 pages and all publicly available.
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i think these enable the kind of public debate that the ambassador discussed. sayonly other thing i would is that would sort of unites these questions about whether the law needs to change or whether we need to know better what the actual circumstances are, a question about attribution. that is not fundamentally a legal question. when you can attribute it to a state would know that the responsibility applies and with the geneva convention says. i think the tough thing is knowing whether a state is responsible and the consequences in attributing it. that is a tough call. in the cyber realm, the role of using any of these new technologies, i think we are indful and advising clients the private sector that a lot of foreign government capabilities don't this and was between the public and private sector the way we do. this is the sort of challenges that i think relate. i am other the as many on the
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panel are that the law needs to evolve right now. mr. lewis: the disparity in attribution capabilities is also a significant obstacle in negotiations. there are a few countries, largely those with very powerful establishments can it should be the majority of attacks to cases. that is a handful of countries, perhaps less than half a dozen. when you get the others in the room they cite attribution as the insurmountable problem. it's not five years from now. incident but is currently a major obstacle. i have a question. how exciting. >> my name is dr. donna wells. i make mathematician economist year in washington. can we talk with the commodities markets and what regulations and
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systems are place to regulate price indexes. recently they investigated the price of gold. thank you. mr. lewis: do you want to take that one? thestion . >> do you want to take out one? >> sari. >> yes. thank you for your patience talking about your cyberstuff with the commodities market and to the price index with gold or copper or silver and the electronic has copper in the. that is a lot of money. what regulations are in place to make sure the price index are reflected with supply and demand? in the economic issues.
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probably not. ambassador zellweger: the price index of gold? mr. lewis: we will come back to that when you give us time to think about it. we have one on the side of their -- there. we will get back to you. >> i'm grant jacobs. minus a little bit more broadly economic although when you're talking about the threshold for attribution and the control over state groups i wonder if there is -- where the political and electi aesis when you're talking about whether it is political and election law. in terms of the economy youe start looking at the broader campaign and one that is like economic warfare, is there a capability for the fact that yoe are dealing with differentor do
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lible? of the complexion of it . >> or do you think it is a cross side thing?00ear it's come up with this notion thou china has a hundred year campaign of economic warfare and is liked by a thousand cuts and it's intentional to undercut the united states like a slow driptu economic warfare. >> do you say whether not you believe in it, in general should you reject it? i think that is the question if you have the long-term economicn
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campaign how can that be treateu by the laws of the conflict. let >> their view that i talk about in china, i have been fine with economic warfare. i think have to be careful with the terminology they use. economic warfare, is a political term. if we wage a war againstbu, anr country by economic means that may also be the competition between the country. what we are talking here with the embargo is a war on terror. it is a political one, in our view it is not illegal. law
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in legal terms it is clearly defined by law and their conflict if you could have a war on organized crime these are political terms. reg so to make sure that term ishe regulated and that would mean entirely different terror and not so with the commodity of trade. you could also look at this for way th other economic customs. you could lower your customs in a way that could bring economicd
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problems to another country and then undermined ite s stability. then you would have to go to ann organization to try to address the situation. we have to be careful about the terms of war on something. in economic war, is not a not a legal term in my view. then we have to find thee appropriate word and most of it> has to do about the regulatory trade program. time, they >> in 1945 theirs drafted the un charger at the time, made it very clear because there is a debate among the states, latin american states were in one camp, and camp, and the topic came up. does? economic action, sanction. that were both legal, some people say warfare, would that would that trigger the un charter? meaning would that constitute the answer but
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which is still the answer, is no. we know the economic actions and that comes up with china with it. >> i was thinking of the manipulation of commodity and market. >> that is with the wto there is other international regimes that deal with actions that involve trade and economic relations. in warfare, you'll notice the un charter the word war is not in the charter. i a because that word is a thing ofo the past in international you talk about the support of the attack. wars of armed maybek conflict, it is it is about conflict but not the economic time.'e >> maybe we should all take a pledge to never take a pledge to never say act of war again.
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>> debate term the word war? >> with respect to economic warfare it is certainly an international legal foundationas for economic sanction. you look worldwide and the u sanctions that are discussed in the context of the iran deal.we ballisticis but and the news tobently has been since 1929, until 2010 see if it was by a ballistic missile. in october. it's something that the un council said in article 41 pastt so it doesn't have internationan standing. s so that is an example of wherere states like the united states, and europe, domestic orhat isart
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regionally sanction to pursue international law.e same but i do think it is sort of a legal basis and it is it thef tm same kind of question oformed ta support. so there are a ton of gary. then all of you can jump in. a little discussion of the law of countermeasures, which is were actions below the threshold, of the use of force. the law of countermeasures i think has just really been reintroduced into how international law applies to the cyber discussion, but i think it will be a major topic in the future. >> it is a great topic. i will say a little bit about countermeasures. let me get into the actual live conflict. mind,rought to my identifying our member, it was
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asked the controversial that the u.s. and allies were bombing oil refineries that were controlled by isis, to take away some of their economic capacity. in the context of armed hostilities, taking out economic targets was at one point controversial. you don't hear much about anymore. people may have decided it was a good idea. now think of the cyber equivalent of that, so is it ok, inside the context of armed hostilities, is it ok to cyber techniques to re-create something like the flash csh? >> is it okay inside the context of the hostility. is it okay to use cyber techniques to increase something like the flash grass. where hundreds of billions of dollars of stock market disappeared in a microsecond. that could be done as a cyber attack and maybe we still don't know what happens in that event. or hacking into systems and making it disappear off the books. i think for the most part we can
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decide about domestic law, inside the context of our conflict and point things out in this body of law to use cyber technique. >> you are actually right. it is a hot topic now partly because there isn't this consensus on how the long conflict applies. there is a feeling that there is a modest dates that are big targets, i think of cyber hostilities are offensive, or whatever. i would call it something like cyber nastiness. there is a feeling feeling that we should do something, so we are settling on a consensus in the legal community that if someone violates the law i can, for lack of a better term, hack back and use electronic measures. >> u.s. estate, not as an
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individual. >> you could hack back or do other things as well. to make it stop. as i see are proportionate and it is necessary to make it stop. >> is it fair to include sanctions and that would be part of? >> that is actually much lower, the be a coercion level. the thing with countermeasures and the thing you're doing in response would ordinarily be unlawful but for the fact that you're doing it as a countermeasure. >> so one thing i disagreement is that there have been some people who have been writing on this for a long time. it is usually in the international law crowd, the academic, we are talking about things under the threshold. talk about the love countermeasure is there any activity under the threshold of article 24, what is your
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response? my first article the normal amount of intervention has now become popular. my first article on cyber and non-intervention was in 2001. people have been working on it, the issue i countermeasure has been what can you do in response to something an action that you have suffered as a victim when it is below the 24. so you're not talking about the use of force, you're talking talking about the use of force, you're talking about things like invasion of sovereignty, in the normal nonintervention. the reason why a started thinking about it is because of the intelligence community and espionage is below 24. there's things you can do in their call countermeasures and they are specifically defined principles of the law of, measure. i do believe policymakers need to pay more attention to the love countermeasure. academics have been part of the law for many years and very relevant and cyber, as most of these intrusions are below the 24.
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i think policy makers need to brush up on what they been saying. >> let me respond. it is nice that the lawyers have been writing about it. it has not come up in an international political discussion until this year. perhaps the discussions have reached the point where understandings are sufficient to talk about it. this is the first year i've ever heard of doing that. >> i think it is the it fact that really triggered the interest with china. when we saw much of the discussions documented in the u.s., so because of that i wrote 101 page article on what can you do in response to state-sponsored, what i have said economic espionage. that is not the company on company or country a company, it is country on foreign company, turnaround give it your private-sector.
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>> these are not new concepts. the nuclear weapons case, the word countermeasures have particular words right now. congress is debating before the senate in terms of measures and it has the same kind of meaning, the word reprisal which is not in favor now. that's a term that was used in some respect, term measures is per se a legal act, contortion, the basic concept is what is a proportionate response? so when the president said after the attack we are going to respond in a proportionate manner and the time and place of our choosing, that in some ways embracing this kind of concept. it so their basic rules that apply to whatever your response happens to be. i don't think this is a question needing to make up law, it is
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there, it's just in the nicaragua case you have to look at -- there is a fair amount of legal guidance there. >> gary what else did you want to say. >> we are getting close to the hour which is good for halloween. we have three questions. we'll do the three questions. could i ask perhaps that we would ask the questions and then we'll respond to them. so hold up your hand if you're going to ask a question. that one, one at 12:00 o'clock and one over here. >> i have a question about criminal law in regard to the countermeasure. specifically to the first chamber on this regard that
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there is a criminal act that is a part of intervention and civil war. where such countermeasures are being used. doesn't that leave certain room for discussion and this implication i countermeasures in terms of criminal law issue? >> high, so one of the things that cyber does is allow people remotely to engage in a conflict that they maybe would not be able to engage in otherwise. either because that is the expertise they bring to the fight, or maybe they're not willing to lay their life on the line to go to the middle east and engaging, lifting up an ak-47. now, when u.s. military killed and isis hacker and recruiter
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back in august, i guess my question is that thing that you are going through to support remotely, we will kill you for that now. we'll come and find you even though you are not actually on the battlefield. so my question is, really two-part, one does that inform the one does that informed the discussion of deterrence in cyberspace? two, is there an issue of reciprocity at play here where the u.s. military cyber community should not be thinking about how other states might respond to the u.s. dod because of the new cyber mission forces who are now doing these? >> mls question. >> good morning, i'm with the united states marine corps in syria things are mess and only
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getting messier. yet the russians and iran getting further entrenched, you have hezbollah and the critical militia, the u.s. acting and supporting elements going after isis. has that exposed gaps in public international law? has that highlighted countering interpretations of public international law? >> three great questions. so we had the criminal court law, the reciprocity and deterrence, and the global implications of syria. we want to just go right on the panelists are with dave, also we will go down the panel and respond to each. >> on the question of syria that
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is a terrific question and also if you look at syria and ukraine on the other. in the case of syria, under international law the u.s. government position established principle, and that absence of the chapter seven in the absence of a basis under national self dispense or consent of the government they do not abate this for international law for using military force. as in other circumstances when you deal with actors there can be other circumstances. that is pretty well-established. i think that is a good example how, notwithstanding those clear lines, the united states has found ways to be involved in achieving its objective. there is reciprocity implications. for deciding about intervention.
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what if we decide to adopt because we claim international law, what then would we say if we are going to use of force for other states either by cyber means or by use of autonomous robot. you can see how suddenly this could go in the international legal system is in question. so whenever a decision is made, whether to stretch the lawn that regard and what the reciprocity implication and that affects the stability. if you're going to change the law to fit a particular model that is one of the main questions in respect to what russia and ukraine. >> i'll answer the question about the hacker. there are a few different ways
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he could have been a target. i i think reciprocity was a consideration whenever you have policies for many country and i think that's why they're so concerned about reciprocal binding of themselves and their own actions. and not sure what they want the rules to be. in this case, presumably the united states decided this guy was a member of the group or directly participating in hostility so they must have decided that. as far as reciprocal in flipside of that, most of the cyber teams have been put together, most of the members are uniform military who are in our conflict and targets anyway. the civilians we would have to think about whether or not they were directly participating in it as well. we we have to analyze the nature of the action. the question would be when you're fighting a group like
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isis is if the application of law has any meaning for them at all. >> my reaction would be a countermeasure is an instrument that was used by international law. willie look at criminal investigation so would something like that be done as a counter measure can we use it as a excuse. i would have my doubt but i would have to know the case, at least not for the human beings to argue that defense. apart from that if the countermeasure get into the deliberation, if you allow may perhaps to say a word of syria
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question, it is a tough question. it shows one of the structure of international law, it is never, even though we have article 24 should indicate it's the responsibility to protect the humans. the intervention is interesting on how you could develop international law. if it is accepted by others, in syria the united states use the sun willing threshold to indicate the interesting thing or question would be if there
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are new concepts if there would be accepted over time. the searing government indicated that they agreed with the findings of some other states. not what we will have to see is what impact that will have on the explanation, but it is an interesting example of how you can develop on the make the point because we mentioned several international law. in my view this is a very different case from the once we were addressing. the way we develop international law based on the common consensus, if for example after the conflict there had been another intervention that would widely affected you could say to
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the international lawyers we do have a new standard and that would be an exception to article two-four. but they agree are really missing pieces of the law. this is something we would have to look into for the new challenges we have to face but we cannot develop the law but we would have to agree to have a common solution. >> commenting on the siri question. it is a very important case study for not only the development of the norm humanitarian intervention and whether that will be customary international law one day. also, on the issue of civil
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conflict, that is what you have there and that's what the nicaragua case was. with civil misconduct you have to remember what the united states lost in that case. the united states argued self-defense. they were coming in collective self-defense because other states were popping up with the government. well we lost on that argument. so i have blessed hope on the unwilling and on label because nicaragua still pulls way. here's a challenge for the united states government, the united states has been opposed to the development of customary international law on unitary intervention, repeatedly. you notice on any intervention we talk about the leaders of our country will never use that word. there never use that phrase. and for an important reason. practice makes custom. the united states has not been willing, because of the changes
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i think we mentioned before, that when you open up that can of forms, we of forms, we are concerned about what that means. if there is a humanitarian intervention norm we don't have any criteria under what circumstances one state can do that. and that would be different than another country. i think the united states is in a difficult position. they want quality military intervention, i know some people vote like this because of this area of the law and because of the united states position i do believe though, when the u.s. needs to make a political decision to help certain groups of people that are not part of the recognize government, then it is become of the law and ought to do incandescent lee. i know a lot of people might not be a favorite of that but it is how you reconcile international law without ripping it apart or creating a precedent that it is dangerous. on the same respect helping people who are suffering. now those are legal thresholds and genocide and -- i think we have lost hope. in portugal everyone was
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excited, we saw hope for the new rule order, and that humanitarian intervention was going to prevail. and that we had bosley and rwanda, and we have to admit is in national lawyers, we are not there. and then the united states, i am not even speaking for the united states and i'm not a grain, but they have been clearer as a policy matter that humanitarian intervention is not one this country will abide by. yet the united states will have a hard and take actions to help people in need. in libya as well. i know that is not positive but. >> on another note dan did you have something you wanted to announce. >> what i think then i will by saying two things. first off, i think this year we saw a change in the nature of international negotiation on the
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new technology. we are in a a different area well there are more participants from the non-western world, from the global south, whatever you want to call it. it offered a definite level on understanding some of the issues that mike my. we spent a lot of discussion about what is appropriate, the standing committee some third body, the position is probably going to be another gge. all of the talk to her from this panel are things you can expect to see on the negotiating agenda in the next couple of years. it has been very helpful for me, please please time in thanking our panelists. [applause].
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