tv Key Capitol Hill Hearings CSPAN October 31, 2015 2:00am-4:01am EDT
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 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 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 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. 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. 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. 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 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 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 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 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 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 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 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 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. 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. 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 myir.gov. 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 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 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 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. 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 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. 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 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 weap at the united nations,
president of the icc. currently the head of -- head director of publicity for the swiss foreign minister. catherine has done a tremendous anunt of work and was advisor. within the office of the general council at the cia at the start of her career. she is currently involved in so many international discussions i won't even list them. colonel gary brown to the left, the ambassador, is currently a security of cyber the marine corps university in quantico. thank you for joining us. prior to that, he was in the icrc in the washington office.
he has been an advocate for cyber command and other military commands. there he experienced in this. finally, david simon, who was in of the unnamed lawyers the new york times article yesterday. he is looking down. i shouldn't have said that. special counsel to dod, the general counsel's office for a long time. with otheroing a lot security issues. one of the real experts we call on here in washington. will do for the format is ask the ambassador to make some opening remarks. after he speaks, i will ask the three panelists to comment, and i we will have a little bit of interaction and open it up for questions. with that, we will get started.
ambassador: thank you very much for organizing this event and giving us the opportunity to discuss the challenges of new technology. saidld just like -- as you , i am the liaison to the swiss foreign ministry. i would like to give my angle and perspective on this issue. why are we interested? switzerland, as you can imagine, is not a current leader in terms of cyberspace or the development of laws. we are not known for engaging actively in warfare. so, what is our interest? interest is very specific. switzerland, as you note -- as know -- overtime, all of us have encountered many new challenges to the new technologies new methods of
warfare. can you use existing rules or do you have to adopt? that would be my take on it. if you have to adopt them, how would you do that? that is the work of diplomats. that is what you get into the rules of business. the first international maritime law convention was in acting 64 -- 1864. since then we have known the evolution of warfare. the issue of new technology came up very quickly. lever code,at the it outlaws poison. with systems that were not compatible with the tenets of international law.
if you look at for the development, you have the dumb dumb bullets and all new weapon systems at one stage had begun with. in effect there are two basic ways. either you out with them, or you try to see how you can apply it to the existing law. systemnowledge the only that was outlawed in a preventative manner -- before they were ever used. you have air warfare. if you look the treaty basis, you won't find much about air warfare. it was possible overtime to clarify the principles applicable to your warfare, probably the main activity in warfare.
if you look at the law, you won't find much. it could be regulated. the talented -- on the discussion of cyber. the first question would be can you deal with the -- with it under existing law? and can you apply existing law? on cyber services human group of governmental experts that used to report and said basically basically -- international law is applicable also to cyberspace. the interesting thing about these two reports which of the -- document in the international arena for the time out --s they cut
that is something that he's to be debated. , on weapons systems, there was a discussion about conventional weapons in geneva. there is still not a common definition. there is the basic consensus that in fact the law as we know it is applicable. this being said, that is not solve all the problems. that is what we can to the need for clarification. that is something that in the whenhas always been done you are facing a new phenomenon. how do you apply the law, which in principle is applicable but how do you make it applicable for the different questions? in cyberspace there are specific questions of -- that will have
to begun with and are difficult to solve. if you look at a few of them, how do you define [indiscernible] in cyberspace. haditha seems between military and civilian subjects? there are many questions. what is an armed attack in cyberspace? at one stage they will probably have to do some kind of consensus. and the question is how can we achieve a commonly agreed consensus? as long as there is no international consensus, each and every country will apply the rules they need, the ones they deem to be applicable. likewise for the upcoming weapon systems, when gree of human control is necessary? it's one of the main questions. for the whole issue of responsibility.
how can you in the end ensure that a state or individual responsibility, robots, that are just running around and making more? -- war? can robots be programmed to judgments like proportionality? how can you program that into a robot? these methods will be have to be solved at one stage or there is a consensus in principle that we can apply the law but we have to do much more how we do that. that is where i commit as a diplomat. how can you achieve this kind of consensus? how can you make sure that they all have the same approach to these questions? the easiest answer would be modified. -- caught a five.
-- codify. that on some issues would be a , mainly also to outlaw weapon systems like milk -- like landmines. to negotiate a convention takes a long time. and then you wait until all the states ratify them. that could take decades. it's not a very efficient way to deal with it. statespast few years increasingly resorted to what you could call a long mechanism. -- law mechanism. expert groupd, the to look into the issues. there were other attempts to cope with the phenomena.
tearne that is most famous are companies that came up with the iraq war. there were all these questions. how do you apply international law to private military and security companies? there was a process initiated in switzerland that assembled all the interested states. those who contract private military and security companies, the territorial states, and host states. they try to come up with the clarifications of the existing law to try to understand what really is applicable to private military and security companies. remaininghe interpretations at the beginning, it would not be possible to find consensus andeen the territorial contracting states.
the divergence is were too big. in the end it was possible to agree on a document. the document was submitted to the united nations. today there are about 53 state, among them the united states, which are a very active part of the process. you have the united nations. and you have nato. that would be one approach to regulate in case it was possible consensus and to find on these issues. --ther possibility could be if you look at the past there were different processes. processes on cyberspace. there were other issues. theof the weaknesses of
processes [indiscernible] -- which we are discussing here. the countries involved were mainly from the western world. if you talk about the western world that is respected by everybody, you have to try to give [indiscernible] we are in the process of trying to create a regular meeting of states of the geneva convention to do with international humanitarian law methods. which would for the first time freight a designated form to discuss these matters. one possibility maybe to then have the discussions within a forum that would centralize and all 197hat you have
state parties of the geneva convention assembled in one group. a forum thatide would allow for furthering a common understanding of these new issues and challenges. it could be imaginable to have , howssions either on law to apply rules of law. how to deal with some of these issues that i highlighted. or on cyberspace. that's a possibility that we could for the person have a forum that is really dedicated to these issues. it would not be a u.n. talk mechanism. we could really focus on these questions. that is where the diplomats come in. we then try on the basis of what the experts come up with, indications of how to deal with matters.
we would have to try to channel the into political processes to make sure international humanitarian law continues to be meaningful and applicable with the new technologies. thank you very much. mr. lewis: we will have a couple of remarkably good on the road. i think of belief are some of the panel who is not a lawyer. i don't know if that is good or bad. the link you are talking about, it is interested -- interesting. i wrote what i was a brilliant definition of use of force and an armed attack. it was really rejected by all parties. thissaid we prefer to keep to the area of national discretion. it's a difficult issue. and the preparations for the last round of talks the chair and i independently concluded that international law would not
be the sticking point. and we were wrong with the application of international law. it's another vehicle the most difficult issue and we did not on it untilment 5:40 on the friday night of the last day of negotiations which ended at 6:00. it was a damn close ending. the use of force under attack is crucial. i'm not sure how you apply international law but it will be very difficult. some of the other things to think about our there is an arc that comes up with the application of international law. the drones. i hesitate to bring it up in the question for me is not switch robots but you have new kinds of military activity, new technology, new tactics. it will take a well to get agreement on how the law applies. there is consensus. you think the russians and the chinese would always -- would
in favor of applying international law. i don't think that is right. they are interested. you notice in geneva there was light which in the report, without saying it came from the geneva convention. they are willing to put the language and proportionality and discrimination but we cannot say reflected international agreement. a difficult issue and to think of it how you deal with new technology. one of the questions that maybe we can touch on and this is related to montroe, both involve. high degree of activity this blurring the distinction between clandestine and military. it's one of the things that makes it difficult to reach common understanding. this will be a project that we will be working on for the rest of the year in cooperation with the u.n. on how we rethink the application of international
law. -- with a why don't i gloomy opening from the trenches, very difficult to get agreement on things. why don't i start with david and go down the road. keep things relatively short he could and it will have an drastic discussions. here.s a pleasure to be i thought i would identify in the context of application of new technology. some challenges and difficult questions in a couple of principles that are operative and reflect some of the issues i saw in my time at the pentagon. in terms of challenges in this area with respect to the law of war, the recently published law manual at the onset of the chapter of cyber operations said this is not well-settled.
it will take for the development. -- further develop. even though the u.s. government 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. 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 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. 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 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. 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. 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. 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 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. -- 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. 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. 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 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 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 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 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 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 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. 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. 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 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. -- 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. --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 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 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. 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 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 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 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 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. 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 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 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 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. 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 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 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. -- 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 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? 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 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. 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 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 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? -- you want tos rephrase the question? thank you for your patience. i'm not a trained engineer about cyber stuff.
this might be any field, the commodities market and price indexes. the price index for gold or copper or silver, everything electronics has copper and it. the price index is a lot of money. place tolations are in make sure that these price indexes are afflicted by supply and demand? can we talk about that? thank you. ambassador zellweger: i have no knowledge of this field. mr. lewis: i have done some work in the economic issues. 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 election law applies to this. if yous of the economy, start looking at a lot of a series of attacks as indicative of a broader campaign and one that deals really with economic warfare and economic --tabilization, is stellar is there still an applicable he of armed conflict law with the fact you're dealing with wholy different aspects of nationstates, international relations. does that change the complexion of it? or do you see this as truly universally applicable? mr. lewis: >> apparently we did not touch on since the first two questions. it has come up in this notion that i'm going to market a little bit -- that is trying to have a 100 year campaign of economic warfare, death by a
thousand heads. this is an intentional effort to undercut the united states and other western powers through economic kind of slow drip economic warfare. whether not you believe in it, my own feeling is that it should be rejected. i think that is the question, if you have these long-term economic campaigns, how would that be treated by the laws of armed conflict or international laws? you know what i'm talking about. alledge strategies. >> let me try. i have been finding these articles. i think we have to be careful with the terminology that we use. economic warfare is a political term. if you wage a war against
another country, but with economic means, that may also be -- there is a natural competition between countries. what we are talking here about, is armed conflict. force ofvement of military. it is like the war on terror. , which was called up by the bush administration, is a political term. it is not a legal term. the legal term is clearly law, and the law applicable during the armed conflict, and all the other so-called wars, you could have a war on drugs, or a war on organized crime, these are political terms that are not -- that do not follow what the laws of war say. for example, how you regulate
price indexes are to make sure that they cannot be abused, that can be regulated by other means. but that would be an entirely different war, and not the commodity trade, i do not know what would be the right term, but you could also extend this to other economic areas, like customs. you can lower the customs in a way that could bring economic problems to another country, then undermine its ability -- instability. you could go to the world trade organization to try to address this. we have to be very careful with the terms like war on something. an economic war is not a legal term. it is an important political term, but then we have to find the appropriate term to give it. most of these issues have to be in the regulatory framework of international trade.
1945, they drafted u.n. charter at the time, they actually made it really clear, because there was a debate among the states. latin american states were in one camp. action --mic sanctions, that was the legal issue -- what that trigger the u.n. charter? meaning, with that constitute a use of force. the answer, which is still the answer, is no. so we know that economic actions, and this comes up with china. thinking of a different issue. the manipulations of commodities and markets. , other is where the wto international regimes which deal with actions that involve trade and economic relations. but in warfare, even the u.n. charter -- the word war is not
in the charter, because that word is kind of a thing of the past in international law. they talk about use of force. armed attack. laws of armed conflict. it is about conflict. not the economic kind. that is why i agree with the ambassador, it is a political phrase. >> maybe we should all take a pledge never to use the 4 -- the term act of war again. >> i was just going to ask, didn't the new manual use the term again? in the context -- this idea with respect to economic warfare. minglen international foundation for economic syndrome. you look worldwide, the sanctions that are discussed in the context of the iran deal --
one that has been news recently is the u.n. resolution of 1929, questions about whether we violated with the launch of a ballistic missile by iran in october. this is something that the u.n. under chapter seven article 41, passed. it has international, legal standing and obligation. it is not a basis for a use of force, if someone violates appeared it is an example where states of the united states who imposed the massively or regionally, sanctions, reserve international law. i do think that that sort of legal basis that is separate from a un security council resolution is the same quarter question about use of force. those laws of countermeasures or torsion's are the sorts of things informed that as they would these questions that we have been discussing. >> let me ask 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 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 crash? were hundreds of billions of dollars of stock market value disappeared in a matter of microseconds. it can be done as a cyber attack. we still don't know exactly what or,ened for that event, just hacking into financial systems and making value disappear off of the books, as opposed to stealing it. for the most part, we decided we will handle that with law enforcement and domestic law. but inside the context of armed conflict, there may be a role for that. it points out some of the problems with applying this body of law to cyber techniques. jim, you are right. countermeasures i really hot isn'tnow, because there this consensus on how the law of armed conflict applies to a lot of it. there is a feeling that the states are big targets of cyber
hostilities or offenses or whatever, i don't want to, tax, something else. cyber nastiness. they are sort of feeling that we should be able to do something. we are starting to settle on a consensus, i think, in the international legal community, that were somebody does some and that violates the law, i can for lack of a better term, hack back or use electronic measures. >> you as a state, not an individual? >> you could actually do other things as well, but mostly focus on the cyber response, to make it stop. the law is proportionate and it is necessary to make it stop. >> is it fair to say that it would include sanctions as part of it? >> that is actually much lower and would not even be -- it does not require an illegal act in the first place. the thing with countermeasures is the thing that you are doing in response would ordinarily be unlawful, but for the fact that
you are doing it as a countermeasure to get the other party to stop doing something unlawful. say -- one thing i disagree with, some people have been writing on this for a long time. usually it is in the international law crowd. the academics. but we are talking about things under the threshold, when you talk about the loss of countermeasures -- it is anything -- activity under the threshold of article of the u.n. charter. what is your response? intervention, my first article on cyber and the law of nonintervention was in 2001. there are people have been working on it, the issue on countermeasures is what you do for the response of something, an action that you separate as a victim, when it is below the 2-4. you're not talking about the use of force or armed attacks, you are talking about invasion of sovereignty, the norm of nonintervention. you had an intervention.
the reason why i started taking about it was become i came from the intelligence immunity and espionage is below 2-4. there are things that states can do called countermeasures. but there are specifically defined principles of the law of countermeasure. i do believe policymakers need to pay more attention to the law of countermeasures. but academics, it has been a part of the law for many years. cyber,ery relevant, and as most of these intrusions, are below the 2-4. policymakers should maybe read a little bit up on what the law professors have been saying. >> let me respond a little bit to that. it is nice that the lawyers have been writing about it. it has not comes up in international political discussions until this year. perhaps the discussions have reached a point where understandings -- understand our decision to talk about it. this is the first year i have ever heard having done this for six years. i.t. thingit is the
that really triggered the interest with china. much of the discussions documenting the damage that could be done to the u.s. from the cyber enabled ip thing. i ended up, because of that, writing an article on what you can do in response to state-sponsored -- i have said economic espionage. that is not company on company or country on company, it is on country on company, and turn around and give it to the private sector. these are not new concepts. nuclear weapons. the word countermeasures has a particular purchase right now. legislation, the congress is debating, they use the term defensive measures. it has the same kind of meaning. the word reprisal, which is sort , a termn good favor now i think was used in some respect. countermeasures, is per se, a legal act.
there are torsion -- and begin the norm a closure -- the basic concept is, what is a proportionate response? when the president said, we're going to respond in a proportionate matter and the time and place of our choosing -- that is some way embracing this kind of concept. so, there are basic rules. there has to be proportionality that applies to whatever your response happens to be. i do not think this is a question of meeting to make up new law. it is there. you just have to read the nicaragua case, which is more than 100 pages, and of course the channel case, and look at the platform case. there's a fair amount of legal guidance there. >> gary? to there getting close our, which is good for halloween. we have three questions. we will do the three questions. can i ask perhaps that we ask
the questions and then we will respond to them so we can keep more or less on track? hold up your name if you're going to ask a question. one at that one and that 12:00 for me, and the one at 10:00. >> i have a question about international criminal law. countermeasure. the icc on this regard. if there is a criminal act that is a part of intervention in civil war, where such countermeasures are being used -- doesn't there need a certain group or discussion with implication of countermeasures, in terms of criminal law issues? hello, my question is for the
one of the things that cyber does is it allows people, remotely, to engage in a conflict that they may be would not be able to engage in otherwise. either because that is the or, maybethey bring, they are not willing to lay their life on the line by going to the middle east and engaging with ak-47s. now, when the u.s. military killed hussein, and isis hacker and propagandist and recruiter, back in august, -- i guess my dodtion is, it allowed -- essentially said that that thing you're going to support remotely , we will kill you for that now. we will come and find you even though you're not actually on the battlefield. my question is, it's really two parts, one, does not inform the discussion of deterrence in cyberspace?
and two, is there an issue of reciprocity at play here, where the u.s. military cyber community should now be thinking about how other states might who -- to the u.s. dod because of the cyber national missile forces, are now doing these operations? >> the last question. syria, which is a mess and is only getting messier, you have the russians being invited ida recognized government of syria. you have the iran getting further involved. as the armed actors such kurdish militia. , supporting. acting certain elements weather clandestinely or openly. that in -- gaps in public international law, or have it highlighted countering
interpretations of public international law? thank you. >> three great questions to close on. court one.criminal we had the reciprocity and deterrence one. and we have the implications of syria. we want to just go right down the panel and start with dave -- actually let's start with you ambassador. we will go down the panel and respond to each. syria,he question of that is a terrific question. it is also, if you look at syria on one hand and ukraine on the other, in the case of syria, the inner -- under international law, the u.s. government position -- in the absence of a security council authorization under chapter seven, and the absence of a basis of collective self-defense or consent of the government, there is not a basis for -- under international law for using military force their
-- there, absent other circumstances. that is pretty well established. there are some significant limitations. i think that is a good example of how, notwithstanding those clear lines, the united states has found ways to the involved in trying to achieve its objectives. but, there are reciprocity implications, for example, in deciding if there is a force basis. the debate on humanitarian intervention. what if we sort of decide to adopt, because we claim international law as a basis for acting in syria, what can we say of we're going to use force in another state, whether through cyber means or through use of autonomous robots? you can see how suddenly the stability of international legal systems is really a question. whenever a decision is made, i think, about whether to stretch the law and that regard, i think
the question is, what is the reciprocity applications of that? and that cuts into deterrence. it is hard to sort of maintain your negative security, if you're going to suddenly change the law to fit a particular model, and that is one of the main questions with respect to what russia is doing in the ukraine. >> all address the question about the hacker. there are a couple of different ways that the guy could have been a target. i think reciprocity is always a consideration. whenever we do policies of any country, that is one of the reasons why i think states have been reluctant to put up their hands and say that we did this, because they are concerned about the reciprocal bindings of themselves and their actions to rules and they do not know where they want those rules to be. in this case, presumably the united dates decided that this guy was a member of an organized armed group, or was thickly participating in hostilities, in which case civilians with their
production from attack in armed conflict. they must have decided that. the flipside of that for the u.s., most of the cyber teams that have been put together has been uniformed military folks who have been in armed conflict with targets all the time anyway. the civilians we didn't have to think about whether or not they were directly participating in hostilities as well. we just have to analyze the nature of the action. the question would be, when you are fighting a group like isis, obvious the, is whether or not the application of law has any meaning for them at all? the one.d to answer i'm not familiar with the case that you alluded to. but my reaction would be that countermeasures are an instrument that we use as an instrument of international public law. in the icc, we address it as an divisional criminal response bodies. the question would be whether the fact that something was done
as part of a countermeasure can be used as an excuse or as a justification for what has been done. i would have my doubts. but i would have to know the case. at least it is not foreseen toward -- that, i would wonder if countermeasures would get into the deliberations, because it is purely criminal. to say a word on syria. it also shows -- it shows one of the structural weaknesses you can say of international law, because international law is a moving target, so to speak. it is never set. 2-4 though we have article of the united nations charter, that should indicate when attack we have others,
possibly body to protect those humanitarian interventions. humanitarian intervention is an interesting thing. how you could develop international law. others,iew accepted by and in syria, the united states thresholde a flash -- to show a case of collective -- the interesting thing -- or the interesting question will be whether because it is a new conflict, whether that will be accepted over time? and as you certainly know, the syrian government has now written to letters to the united nations security council, indicating that they disagreed with the bombings. what we will have to see is what inference that will have on the .efense or on the explanation it is an interesting example, how you can agree to develop
international law, and the make the point, because we mentioned several times a part of international law. in my view, this is a very different case from the one we were investigating, because this is a field where you develop international law based on the common consensus. and if, for example, after the intervention, there had been another humanitarian intervention, that would have been widely accepted, we could slowly say as international lawyers, we do have a new standard that's would be an exception to article 2-4. that may be the case one day. -- this isded to something that we would have to look into. technologies and challenges we have to face.
whether there are really spots that we cannot develop by law, but that we would really have to sort of legislate to have a common solution for them. thank you very much. >> commenting on this year question. it is a very important case before not only development of the norm for you may turn intervention, and whether that will be customary international on the day, but also issue of civil and mixed conflict, because that is the you have there. it is exactly what the nicaragua case was. the civil and mixed conflict -- we do in our member what the united states lost and the legal argument. united states argued self-defense. they were coming in and self-defense, because other states were propping up the other government. well, we lost on that argument. so, i have less hope on unwilling and unable, because nicaragua still holds weight in the international committee. here's the challenge for the
u.s. government, they have been opposed to the development of customary international law on intervention, repeatedly. you'll notice in any intervention you are talking about, the leaders of our country will never use that word. they will never use that phrase. there is an important reason, because practice makes custom. the united states has not been ,illing, because of the dangers that when you open up that can of worms, we are concerned about what that means. that there is a humanitarian intervention norm, we do not have any a great interior for under what circumstances once they could do that. and one will be different from another. the united states is in a difficult position. it will not call humanitarian intervention, and some people not like this, but because of this area of the law, and because of the u.s. position, i do believe, when the u.s. makes a political decision to help certain groups of people that are not part of the recognize government, then, because of
where the law is, it ought to do it clandestinely. something ais not lot of people will be in favor of, but it is how you reconcile international law without ripping apart. are creating a president that is dangerous for many. in the same respect, helping people that are suffering. -- ofhe legal threshold genocide -- i do think we lost hope with kosovo. at least international lawyers were excited. we saw hope for the new world order, and that humanitarian intervention was going to prevail. rwanda,had bosnia and and then will have to admit as international lawyers, you're not there. the u.s. -- i'm not speaking for the u.s., i may not even agree to it, but they have been very clear as a policy matter, the norm of humanitarian intervention is not one this country is willing to kind of abide by. the u.s. will still have a heart
and take certain actions to help people in need. in libya, as well. i know that is not positive, but. >> on that note, did you have something that you want us to announce? ok. byhink we will now conclude doing two things, first i will say that i do think that this year saw a change in the nature of international negotiations on the new technologies. we are in a different area where there are more participants from non-western world, from the global world, what everyone a call them. but also, a different level of understanding some of the issues that might come up. so, there has been a lot of discussion about what is the appropriate response -- is it a standing committee, is it a third body committee? the default position is probably going to be another system, only