punish willful damage to submarine cables.147 As a result, UNCLOS is important for its prohibition on staging any attacks that interfere with the security or good order of a coastal state. An argument could be made that this Article 19 prohibition should also apply to Article 113 claims involving submarine cables. This would mean that cyber attackers who send code through submarine cables to a coastal state would be in breach of international law obligations. Still, this accord as well does not specify its status in war-time.148 Nor does it include enforcement mechanisms.
Nonetheless, UNCLOS is also important as an example of a regime which was unsuccessful until it recognized the needs of the private sector, as well as doing away with mandatory technology transfers. If an international legal regime is to be created, it must ensure sufficient protections for private enterprise to promote innovation while not mandating technology transfers on developed nations. This militates against drastically changing the nature of the generative internet, and underscores the central primacy that non-state actors have in curtailing cyber attacks and the consequent need for multilateral cooperation in keeping with neoterritoriality theory.
Analogizing other Applicable Accords
Numerous bilateral and multilateral treaties dealing with everything from legal assistance, extradition, diplomatic relations, friendship, to status of forces agreements include elements that impact on the prosecution of cyber attackers. The U.S. is a party to dozens of Mutual Legal Assistance Agreements (“MALT”), beginning with Switzerland in 1977, which could be used to seek criminal prosecution of those found responsible
147 UNCLOS, Art. 113.
148 Nor does espionage law provide a fruitful analogue for cyber attacks. During an armed conflict, espionage law covering the covert collection of intelligence about other nations only applies to a person relying on protected civilian status or while wearing an enemy uniform. This is much less well-developed in peace-time.