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Is US Diplomatic Practice ‘Legal’? An Analysis of UN Chapter VI and Power Perception

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When it comes to envisioning peaceful relations among the peoples, there is no higher source of inspiration than the UN Charter and the global organization it created. The founding fathers of the new world order were very much aware of the misfortunes that characterize international affairs. It can be argued that they were naïve in hoping to have found the solution to war but their trust in the power of diplomacy is a fact. For definition, we are referring to diplomacy as all the necessary peaceful means that aim at achieving cooperation and dialogue among conflictual world actors.

There seem to exist two opposing views on the role of the UN in the settlement of disputes. On the one hand we have the institutionalists who believe in the ability of this organization to act as an independent actor, while on the other we have sceptical realists who see the primacy of the member states over the UN. However, the aim of this paper is not how the UN operates but what it believes in. Also, to observe if powerful states such as the US follow the UN normative prescriptions on diplomacy. I find it relevant to absorb the essence of UN’s view on diplomacy and compare it to the US perspective. The US case is emblematic since it illustrates how the perception of power affects diplomatic practice.

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Source: United Nations Photo @ Flickr

But first we should comprehend UN’s view on diplomacy. This is best expressed by Chapter VI of  the Charter, more specifically Article 33.1 which can be considered as the more peaceful and legitimate alternative to Chapter VII’s forceful intervention provisions. What we get from this article is a legalistic and idealistic way of handling conflictual situations on the global arena. Its provisions have a few elements in common, namely the assumption that there is an international legal order that can deliver justice, that diplomatic practice is the safest way to resolve disputes, equality among states, and that militant unilateralism threatens peace and security. What does the famous Chapter VII stand for? We can shortly affirm that it enforces peace, while Chapter VI maintains it. The numbering of the articles is relevant since it gives precedence to diplomacy over interventionism. It can be argued that the constant invocation of Article VII shows the failure of diplomacy in world affairs but this does not cancel the UN’s great hope in the antique practice of ‘communication and representation’.

It might tempting to associate the UN’s approach to diplomacy with the rationalist/liberal internationalist school of IR but I will stay away from the IR debate. So how do great powers relate to this vision? I would argue that it all depends on power perception, meaning what constitutes power in the eyes of leaders. To best notice this I will delve into Obama’s foreign policy while touching upon the neoconservative narrative of the role of diplomacy as a counterexample.

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Source: US Department of Defense Current Photos @ Flickr

Obama’s ‘engagement’ with the world and most vitally with the ‘enemies’ appears a foreign policy in itself. The US president and his Secretary of State Hillary Clinton translated this into summitry participation, increased investment in the US ‘civilian power’ abroad to catch up with the high military spending, and the pursuit of stable partnerships with the other leading countries or international organizations. What lies under this policy? It is the respect for the interests of counterparts, for international law and the order it creates, the doubtless reliance on the effectiveness of communication and negotiation (backed in this particular case by big sticks) but also much pragmatism.

In international politics, pragmatism is the natural sign that reality differs from aspirations. Obama’s administration cleverly understands the times and US’s true position in the world. First, self-reliance and unilateral behaviour is not sustainable anymore. Second, and this is key, the source for American leadership (power) is according to Obama its constant interaction with international institutions and norms. Furthermore, US security depends on alliances as ‘force multipliers’. Finally, the Security Strategy of the US underlines the need for the UN to be capable of ‘fulfilling its founding purpose’. To sum up, we have a clear case of diplomacy as instrument of smart power. We can therefore say that Obama’s understanding of diplomacy is in tune with international law. The opposite can be argued as well but I would say Obama’s intentions in this sense are a success if we consider some relevant opinions that explain how in fact America is not that good in diplomacy for reasons that range from distrust in this practice, to the privilege given to hard power over soft power, to instrumental diplomatic isolation of adversaries and so on.

Even more helpful in making sense of Obama’s diplomatic legality is to remember the previous Bush administration and the neo-conservative ideology that stood behind its foreign policy. The first related aspect that strikes at first sight is the election of Colin Powell as head of US diplomacy in 2001, a public figure that can be called in Wiseman’s terms an ‘anti-diplomat’, meaning an official with a military and intelligence background. This nomination can be conceptualized as the triumph of militarism over diplomacy in foreign policy.

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Source: DonkeyHotey @ Flick

We could argue following the logic used in Obama’s case that the foreign policy of George W. Bush did not conceive of diplomacy as the UN under Chapter VI of its Charter does. If we give legal authority to this later document we can conclude that in principle, Bush’s diplomatic practice was illegal or at least not legal. Why did this particular American administration disregard diplomacy? I would again argue for the role of power perception. Robert Kagan, a representative of neo-conservatism, the ideology behind Bush’s foreign policy, talks of the American ‘strategic culture’ characterized by good and evil distinctions, ‘less patience’ when it comes to diplomatic practice, favour for coercion and finally unilateralism. Making a comparison to the EU, he suggests that the power balance between Europe and America has changed and that today the US is powerful and therefore it only acts as powerful states do. Moreover, an essential element in grasping this ideology is American exceptionalism, namely that the world’s interests coincide with America’s.

In conclusion, the legal and idealistic prescriptions on diplomacy are fixed by the UN Charter. Not the same can be said about the diplomatic practice of the US. Based on its perception of power, diplomacy can be a goal in itself or an obstacle. In short, international law in reality succumbs to state interest but not without consequences. Even Condoleeza Rice’s search for legitimacy in the UN and Obama’s smart power strategy prove that the power of a state can be threatened by a decrease in legitimacy.

Bibliography

  1. Carlsnaes W, Risse T., Simmons B. (2002), Diplomacy, Bargaining and Negotiation, in Handbook of International Relations, pp. 212-235, SAGE Publications Ltd;
  2. Charter of the United Nations (1945). Website: https://treaties.un.org/doc/publication/ctc/uncharter.pdf;
  3. Colin Powell biography. Website: http://www.defense.gov/specials/AfricanAm2003/powell.html;
  4. Kagan R. (2004), Of Paradise and Power. America and Europe in the New World Order, Vintage Books;
  5. Kerr P., Wiseman G. (2013), Diplomacy in a globalizing world. Theories and Practices, Oxford University Press;
  6. National Security Strategy (2010), The White House;
  7. Nye J. Jr. (2011), The Future of Power, Public Affairs;
  8. Ratner S. (1995), Image and Reality in the UN’s Peaceful Settlement of Disputes, EJIL, pp. 426-444;
  9. Usgovernmentspending.com. Website: http://www.usgovernmentspending.com/year_spending_2014USbn_15bs2n_3031#usgs302;
  10. Wiseman G. (2011), Distinctive Characteristics of American Diplomacy, The Hague Journal of Diplomacy 6, pp.235-259, Marinus Nijhoff Publishers.
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The History Question: Is It Better to Remember or to Forget?

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Years ago, a philosopher by the name of George Santayana said a phrase that fuels many debates to this day. His original saying is “those who cannot remember the past are condemned to repeat it”, although, many sources now present it as variations of “those who cannot learn from history are doomed to repeat it”. The latter definitely has more substance to it in the light of the ongoing debate about how much history we should be learning and how.

Is It Better to Remember or Forget About the Past?

On one hand, Santayana was right. Learning about the past is essential in order for people to progress. One also shouldn’t overlook the importance of remembrance and paying respects to the dead, both those who pushed the progress forward and those who have fallen victims to major tragedies that could and should have been averted.

The main argument in favor of learning about the past is that its knowledge is necessary for preventing the same thing happening in the future. Having it one can see the signs and stop the tragedy before it gains momentum.

That’s sound in theory, but the reality is always different. For example, today people are surely forgetting, and the much-critiqued education system is only partially at fault here. Even the greatest of tragedies weren’t spared this fate. It’s a proven fact that about two-thirds of millennials today don’t know about the Holocaust, and this number is surely greater for generations that follow them. In the school history course, the subject of one of the greatest disasters in history is barely touched, if touched at all. And outside of a history classroom, one can only see small, but terrifying, glimpses of it at the Holocaust Museum and other museums that rarely attract many visitors. And now we are witnessing a rise of antisemitic crime.

Are these two facts related? Does the lack of awareness about the horrors done in the name of Aryan supremacy contribute to the fact that right-winged extremists seem to be gaining popularity again?

It does, but by how much? That is the question that no one can truly answer.

And what about other genocides? The Holocaust had the highest death toll, but it was far from the only genocide in history. And quite a few of those happened after World War 2 and before the memory of the atrocities against the Jews began to fade. This means that while forgetting history is a factor, it’s not the deciding factor in its repeats.

But what is that thing responsible for the reenactment of past mistakes and tragedies?

Learning. This is the important thing that is most often overlooked when citing Santayana’s famous saying. It’s not enough to learn about the past and know the facts of things that happened. It’s important to learn from those facts and put in place protections that will prevent them from happening again. And this is something that humanity, as a whole, has yet to succeed in doing.

Dwelling in the Past Can Be Just As Bad

One also shouldn’t forget that there is such a thing as “too much history”. The Bosnian War and genocide that happened there in the 1990s is a vivid example of how the past can be exploited by political powers. Used as a part of propaganda, which fueled the war, history can become a weapon in the hands of those who want to use it for their own goals.

And this is what humans have been doing since the dawn of time. There is always someone who will use any means necessary to achieve whatever it is they wish. This results in wars and genocides, and hundreds of smaller but no less devastating tragedies.

Therefore, the problem isn’t whether people should be learning history but human nature itself. Perhaps, teaching this can help fix this fundamental flaw and truly stop the worst of the past from repeating.

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Is there such thing as cyberwar?

Alexandra Goman

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Two decades have passed after Arquilla and Ronfeldt in 1993 warned the public about an upcoming. They were also the first to introduce a concept of cyberwar and give an elaborated opinion. They referred to a conduct and preparation of military operations using information-related principles and also invoked a link between intelligence (the collection of information for political or military purpose) and cyber operations. Now, the scale of intelligence has significantly expanded.

Interestingly, before cyber appeared, there was a radio which was used for intelligence purposes and was weaponized later in the World War II. From that time on, electronic warfare became standard characteristics of a modern conflict. Despite this, there is a key difference between electronic warfare and a cyber one. Traditional electronic warfare aimed to guide, target, or protect weapons systems (Ibid., p. 24). In contrast, cyber makes today’s weapons and military systems smarter but also more vulnerable for an attack.

At the moment everyone still wonders what the whole idea of cyberwar means. There is no accepted interpretation or definition. Furthermore, many experts even say that such war does not even exist (or cannot be referred to the notion of “war”). Perhaps, it is due to the fact that a war in cyberspace has not yet happened. To make it clear, cyber capability has not actually killed anyone and a code has not been used as the use of force.

Similarly, the dangers of a nuclear bomb were recognized only after its use, the same goes to the notion of “nuclear war”. Although there have been many cyberattacks, none of them have been raised to the level of war because none of them, in fact, caused the level of damage which could be adhered to the level of a large-scale conflict.

Cyber warfare has derived from different aspects of conventional warfare and traditional definitions of war. It usually involves organized units within nation-state in offensive or defensive operations which are part of a war or a conflict.

In general, since cyber study is relatively new, there are many competing terms and definitions to explain cyber phenomenon. The following concepts – the revolution in military affairs, electronic warfare, information warfare, and cyber war – have been all offered to describe the new emerging area of conflict. Experts do not agree on any particular term, more often using different notions when talking about cyber issues. Nonetheless, it is vital to understand the facts of the 21st century similarly to the need that rose along with the invention of atomic reaction. A major concern now is no longer weapons of mass destruction, but weapons of mass disruption. (2009, p. 47).

One of the central elements to define a cyberwar, is that it has to meet the same criteria, applied to any other type of war. Vandalism or spying is an act of crime, but they do not start wars. So, assumingly, there has to be physical destruction and casualties in order to declare a war.

Therefore, a cyberwar should have real world damage similar to a conventional war. For this matter, it should probably take place in a digital world. What is not clear, however, is whether it should be fought exclusively in cyberspace or it can accompany a conventional attack too. This aspect is quite interesting, because cyberattacks can easily be used in combination with a kinetic attack and can multiply the force and power of the attacker.

In this case, it does not make sense to create a new term “cyberwar” as it falls down under the same definition of war. It is the same example when aerial bombings supported the attacks on the ground during the World War I, but in the end we called it a war, not a particular type of war. Consequently, cyber introduction resembles more a revolution in military affairs, rather that a new emerging type of warfare.

What is clear, though, is that the difference in definitions complicates the matters of regulating cyberspace and prevents achieving a common ground on cyber issues and/or developing new treaties and agreements between the states. So far there is no international agreement on the cyber principles, despite some attempts of the states to engage into negotiations (Budapest Conference on Cyberspace, the World Conference on International Telecommunications). There is, however, the Convention on Cybercrime, the first international agreement that addresses compute crime, adopted by the Council of Europe. Interestingly enough, Russia (as a part of the Council) neither signed nor ratified the agreement, whereas US (not part of the Council) recognized it and ratified it.

Apart from these difficulties in defining cyberwar, there has been a hyperbolic use of the word itself, mostly by media and tabloids (e.g. The Washington Post, “We are at cyberwar and we are our own enemy”; The New York Times, “How to prevent Cyberwar”; Zdnet, “Cyberwar: a guide to the frightening future of online conflict”; Komsomolskaya Pravda, “Are we expecting the First World Cyberwar?” etc.). They do not usually give any concrete information but are eager to use this term and apply it randomly to different cases just because it sounds good.  All in all, uninformed public use of the word has enormously contributed into the heat surrounding cyber implications.

Futher, cyberattacks are too often discussed equivalently, regardless of its impact. In this sense, minor cases like ransomware or phishing might be raised to the level of an armed attack (especially if they affect multiple computers worldwide). Yet, these cases are good examples of cybercrime, and crime is not a war. When individuals engage into this type of activity, they do not engage in a war.  The same goes for espionage in cyberspace. Catching a spy on one’s territory will certainly put pressure on bilateral relations, but it would not start a war.

This exaggeration of cyberattacks can be explained through securitization theory. The notion offered by the Copenhagen Security School describes how a certain concept can be politicized and securitized to the extent that it becomes a threat to national security (See Buzan, 2006).

To conclude, it should be mentioned that there is no guidance for the conduct of “cyberwar”.  There are no internationally agreed definitions and, to that extent, the whole idea of cyberwar so far seems unrealistic. At this moment technology is not sophisticated enough to ensure a military conduct entirely in cyberspace. Besides, any cyberattack of such scale would presumably result in a physical destruction, which consequently might provoke a conventional retaliation attack. This, in result, would cause a war we know for years, so there is no need to introduce a particular type of war. On another note, using cyber operations to support a conventional war and/or conflict is the way to go, but in this case it is just a revolution and modernization in military affairs.

I would be interested to hear your opinion about that in the comments below.

For further information see:

1)    A movie “War Games” (1983)

2)    Arquilla, J. and Ronfeldt, D. (1993). The Cyberwar is Coming! RAND Corporation, [online] Available at: https://www.rand.org/pubs/reprints/RP223.html

3)    Cetron, M. J. and Davies, O. (2009). Ten critical trends for cyber security. The Futurist, 43(5), pp. 40–49.

4)    Stiennon, R. (2015). There Will Be Cyberwar: How The Move To Network-Centric War Fighting Has Set The Stage For Cyberwar. Michigan: IT-Harvest Press.

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On the issue of cyber security of critical infrastructures

Alexandra Goman

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There is a lot of talk in regards to cyberattacks nowadays. A regular user worries about its data and tries to secure by all means necessary. Yet, no one really thinks whether the power plants or nuclear facilities are well secured. Everyone assumes that they should be secured.

The reality, however, differs. According to many reports of cyber security companies, there is an increased risk of cyberattacks, targeting SCADA and ICS. Supervisory Control and Data Acquisition (SCADA) is used for the systems that control physical equipment – power plants, oil and gas pipelines, they can also control or monitor processes such as heating or energy consumption. Along with Industrial Control Systems (ICS) they control critical elements of industrial automation processes. Exploiting vulnerabilities of critical infrastructures can lead to the consequences of unimaginable scale. (These types of attacks are actually used in a cyberwar scenarios and hypothetical military settings).

Source: Fortinet, 2015

There are many reasons why these systems are vulnerable for attacks. First of all, the main problem is that these systems have an old design; they were built before they were connected to any networks. They were later configured to connect via Ethernet, and that’s when they became a part of a larger infrastructure. The more advanced SCADA system is becoming, the more vulnerabilities are these to exploit. The updates should be regular and on time. Secondly, there is a lack of monitoring. New devices that are connected allow remote monitoring, but not all devices have the same reporting capabilities. There are also authentication issues (weak passwords, authentication process), however, this is supposed to restrict unauthorized access (See Common SCADA Threats and Vulnerabilities at Patriot Technologies, Inc. Online).

In these scenarios, there is no certainty to know what is going to backfire because of the complexity of communications and power networks. This is also called a cascading effect of attacks. Not knowing who is connected to who may cause major disruptions. The example of the US East Coast power blackout in 2003 proves this point (a failure in one element of the grid spreads across other electrical networks). However, given this, it is also complicated for an attacker to predict consequences, if an attack executed. This kind of attack can easily escalate into more serious conflict, so it might not be the best option for states to employ such methods.

Moreover, there is a risk to damage a critical infrastructure unintentionally. That is if a virus or worm did not intend to target SCADA but happen to spread there as well. The uncontrollability of the code may seriously impair the desire to use it, especially when it comes to nation-states. For instance, in 2003 a worm penetrated a private network of the US Davis-Besse Nuclear Power Station and disabled a safety monitoring system for 5 hours. In 2009, French fighter jets could not take off because they were infected with a virus.

Indeed, a scenario where an attacker gains access to a SCADA system and manipulates with the system, causing disruptions on a large-scale, might be hypothetical but it does not make it less possible in the future. However, the only known case so far, which affected an industrial control centre, is Stuxnet. It did not result in many deaths, yet it drew attention of the experts on the plausibility of future more sophisticated attacks. These potential upcoming attacks might cause the level of destruction, comparable to that of a conventional attack, therefore resulting in war.

Further reading:

Bradbury, D. (2012). SCADA: a Critical Vulnerability. Computer Fraud & Security, 4, p. 11-14.

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