A New Legal Regime for Bilateral Assistance Programs: International Agreements Governing the Nunn-Lugar Demilitarization Program in the Former Soviet Union

On December 12, 1991, President George Bush signed into law an unprecedented piece of legislation popularly referred to as the Nunn-Lugar Act in honor of the Act\u27s principal sponsors, Senators Sam Nunn and Richard Lugar.1 The Act, which Congress has enlarged with subsequent legislation2 and funded with authorization and appropriations acts providing up to $1.6 billion over the course of four years,3 created a complicated legal and fiscal framework to use United States Department of Defense resources to provide assistance to states of the former Soviet Union in order to facilitate the demilitarization of the former Soviet Union\u27s military facilities, technologies and capabilities and to help prevent the proliferation of weapons, weapons technology and weapons expertise from the former Soviet Union.4 In order for the U.S. Department of Defense to provide the assistance envisioned by the Nunn- Lugar legislation, a number of complex bilateral agreements have been negotiated and concluded with the states of the former Soviet Union. These Nunn-Lugar or Cooperative Threat Reduction 5 (CTR) agreements have established a unique legal regime for delivering, using and auditing this assistance.6 Unlike other international agreements under which the United States may simply provide cash, loans or some other form of aid to a foreign country, these CTR agreements are designed and required to directly support specific U.S. national security objectives while complying with a complicated set of statutory restrictions and requirements.7 Although each of the newly independent states of the former Soviet Union could ultimately become eligible to receive CTR assistance,8 the Department of Defense has only provided such assistance to those countries where the former Soviet Union had based its nuclear weapons: Belarus, Kazakhstan, the Russian Federation and Ukraine. This allocation of assistance is based on the statutory requirement that the President certify that each recipient state is committed to six specific courses of action before it is actually eligible to receive CTR assistance.9 To date, the United States government has chosen to certify only the four republics on whose territory nuclear weapons were located.10 These certification requirements were the subject of intense debate in connection with the passage of the original 1991 Nunn-Lugar legislation, and the U.S. Congress recently approved additional requirements.1

Soft Law’s Failure on the Horizon: The International Code of Conduct for Outer Space Activities

On January 11, 2007, the People’s Republic of China conducted a successful test of an anti-satellite weapon against one of its own aging weather satellites that produced a massive cloud of long-lasting orbital debris in space. The test highlighted both the growing possibility that orbital debris may ultimately render space unusable for all activities there and the reality of an increasingly militarized, contested and insecure geopolitical space environment. Largely in response to this incident, and in an effort to enhance the safety, security and sustainability of space activities, the European Union developed a draft “International Code of Conduct for Activities in Outer Space” (the ICoC or the Code) in 2008. The proposed Code, which continues to be debated by the international community, is an example of a legally non-binding soft law instrument which also contains broad, imprecise statements of principles. While soft law has made important contributions to the legal and administrative framework that governs space, the Code does not hold such promise. Instead, this article argues that the Code is a case study in the limitations of soft law, particularly when employed as a mechanism to regulate military activities and weapons in a highly insecure environment. Moreover, it is notably ill-suited in this context and in its design to successfully address the critical problem of orbital space debris. As a soft law instrument with both soft law’s general limitations and its own particular shortcomings, the Code is an ineffective measure that distracts attention from more meaningful initiatives to reduce orbital debris while at the same time risking increasing tensions in space, diminishing the existing legal framework governing space activities, and negatively affecting the future development of space law

Legal Phantoms in Cyberspace: The Problematic Status of Information as a Weapon and a Target Under International Humanitarian Law

Reports of state-sponsored harmful cyber intrusions abound. The prevailing view among academics holds that if the effects or consequences of such intrusions are sufficiently damaging, international humanitarian law (IHL) should generally govern them-and recourse to armed force may also be justified against states responsible for these actions under the jus ad bellum. This Article argues, however, that there are serious problems and perils in relying on analogies with physical armed force to extend these legal regimes to most events in cyberspace. Armed conflict models applied to the use of information as a weapon and a target are instead likely to generate legal phantoms in cyberspace-that is, situations in which numerous policy questions and domestic criminal issues are often misinterpreted as legal problems governed by the IHL framework or the jus ad bellum. This Article assesses this dilemma in the context of four key problem areas relating to dimensions of information: (1) problems of origin, organization, and availability; (2) problems of access and control; (3) problems of exploitation; and (4) problems of manipulation and content

Legal Phantoms in Cyberspace: The Problematic Status of Information as a Weapon and a Target Under International Humanitarian Law

Reports of state-sponsored harmful cyber intrusions abound. The prevailing view among academics holds that if the effects or consequences of such intrusions are sufficiently damaging, international humanitarian law (IHL) should generally govern them-and recourse to armed force may also be justified against states responsible for these actions under the jus ad bellum. This Article argues, however, that there are serious problems and perils in relying on analogies with physical armed force to extend these legal regimes to most events in cyberspace. Armed conflict models applied to the use of information as a weapon and a target are instead likely to generate legal phantoms in cyberspace-that is, situations in which numerous policy questions and domestic criminal issues are often misinterpreted as legal problems governed by the IHL framework or the jus ad bellum. This Article assesses this dilemma in the context of four key problem areas relating to dimensions of information: (1) problems of origin, organization, and availability; (2) problems of access and control; (3) problems of exploitation; and (4) problems of manipulation and content

Autonomous Weapons and Human Responsibilities

Although remote-controlled robots flying over the Middle East and Central Asia now dominate reports on new military technologies, robots that are capable of detecting, identifying, and killing enemies on their own are quietly but steadily movingfrom the theoretical to the practical. The enormous difficulty in assigning responsibilities to humans and states for the actions ofthese machines grows with their increasing autonomy. These developments implicate serious legal, ethical, and societal concerns. This Article focuses on the accountability of states and underlying human responsibilities for autonomous weapons under International Humanitarian Law or the Law of Armed Conflict. After reviewing the evolution of autonomous weapon systems and diminishing human involvement in these systems along a continuum of autonomy, this Article argues that the elusive search for individual culpability for the actions of autonomous weapons foreshadows fundamental problems in assigning responsibility to states for the actions of these machines. It further argues that the central legal requirement relevant to determining accountability (especially for violation of the most important international legal obligations protecting the civilian population in armed conflicts) is human judgment. Access to effective human judgment already appears to be emerging as the deciding factor in establishing practical restrictions and framing legal concerns with respect to the deployment of the most advanced autonomous weapons

AMERICA\u27S NEW WAR ON TERROR: THE CASE FOR SELF-DEFENSE UNDER INTERNATIONAL LAW

When representatives of fifty countries assembled in San Francisco in 1945 to draw up the United Nations Charter, modem threats of terrorism such as those posed by the Al Qaeda terrorist network were not yet known. The devastation caused by the September 11 terrorist attacks on the United States would not, however, have been an unfamiliar spectacle to the survivors of World War II. The inherent right of self-defense in responding to such violent attacks, a right enshrined in Article 51 of the U.N. Charter and understood by the delegates of all states as a long-established principle of customary international law, was a familiar concept in 1945.1 It was in accordance with these long-established principles of customary international law and Article 51 that the United States Government reported in a letter to the U.N. Security Council on October 7, 2001, that it had initiated actions in the exercise of its inherent right of individual and collective self-defense following the armed attacks that were carried out against the United States on 11 September 2001. 2 The letter went on to note that since the September 11 attacks, the U.S. Government had obtained clear and compelling information that the al-Qaeda organization, which is supported by the Taliban regime in Afghanistan, had a central role in these attacks and that United States armed forces had initiated actions designed to prevent and deter further attacks on the United States including measures against al-Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan. 3 The letter of October 7, 2001 was not the first time the United States has notified the U.N. Security Council of actions involving the use of force against other states and has invoked its inherent right of self-defense in response to terrorist attacks. As discussed below, previous uses of force by the United States against terrorist-supporting states have received varying responses from the international community, given rise to some criticism, and raised a number of international legal questions involving the right of guaranteed self-defense under Article 51 of the U.N. Charter. In contrast, the unprecedented response of the international community to the September 11 terrorist attacks on the United States and important factual and legal distinctions between the circumstances surrounding the September 11 attacks and previous attacks giving rise to the use of force by the United States, demonstrate the propriety of the exercise of self-defense in this case under the U.N. Charter and customary international law

Soft Law’s Failure on the Horizon: The International Code of Conduct for Outer Space Activities

On January 11, 2007, the People’s Republic of China conducted a successful test of an anti-satellite weapon against one of its own aging weather satellites that produced a massive cloud of long-lasting orbital debris in space. The test highlighted both the growing possibility that orbital debris may ultimately render space unusable for all activities there and the reality of an increasingly militarized, contested and insecure geopolitical space environment. Largely in response to this incident, and in an effort to enhance the safety, security and sustainability of space activities, the European Union developed a draft “International Code of Conduct for Activities in Outer Space” (the ICoC or the Code) in 2008. The proposed Code, which continues to be debated by the international community, is an example of a legally non-binding soft law instrument which also contains broad, imprecise statements of principles. While soft law has made important contributions to the legal and administrative framework that governs space, the Code does not hold such promise. Instead, this article argues that the Code is a case study in the limitations of soft law, particularly when employed as a mechanism to regulate military activities and weapons in a highly insecure environment. Moreover, it is notably ill-suited in this context and in its design to successfully address the critical problem of orbital space debris. As a soft law instrument with both soft law’s general limitations and its own particular shortcomings, the Code is an ineffective measure that distracts attention from more meaningful initiatives to reduce orbital debris while at the same time risking increasing tensions in space, diminishing the existing legal framework governing space activities, and negatively affecting the future development of space law

SPACE, CYBER, AND TELECOMMUNICATIONS LAW: 2019-2020 Annual Report

In assembling this Annual Report we appreciated the opportunity to review major accomplishments and growth of the Space, Cyber, and Telecommunications Law (SCTL) program during the 2019-2020 academic year. Of course, this was a year like no other as we responded to an unfolding global pandemic. We are proud of what we accomplished prior to that and of our response in the face of that sudden change. For readers unfamiliar with the program, the SCTL program was established in 2007 largely in response to interest by the U.S. Air Force in establishing a U.S. based program in space law to which it could send Judge Advocate General (JAG) officers. At the time it was established, the law school recognized the narrowness of the field and decided to focus the program more broadly on space law as the thencurrent domain of interest to the Department of Defense (DoD), on cyberlaw as the likely next domain of interest both to DoD and the nation generally, and on telecommunications as a common foundation necessary to both. We continue to focus on service to the state of Nebraska, taking on issues such as the rural digital divide and agricultural access to broadband, and our global community. We engage with international organizations and colleagues on challenges our society faces in space and online. The program faculty (and students) are active researchers, and the program organizes various events, including an annual conference in Washington, D.C. (one of the largest regular events focusing on space law), an annual conference in conjunction with USSTRATCOM (on DoD operational issues relating to space, cyber, and related issues), and an annual conference in Lincoln focusing on telecommunications and cyber issues as they impact the region. We appreciate continued support from the state of Nebraska, the University of Nebraska, our board members, and many of our friends and colleagues across the world