Cyber threats have emerged as one of the most serious dangers to U.S. and global security. Increasingly, malicious actors—some private, but others that appear to be state-sponsored—seek to advance their strategic aims through violent or non-violent cyber-attacks. This Article considers the problem of non-violent, yet still destructive, economic cyber espionage, which targets the intellectual, industrial, and information property of major global powers like the United States.
The Article argues that the international community’s reticence is owing to a stale set of international legal norms. The Article explains how existing principles of international law—such as state sovereignty, non-intervention, and state responsibility—should evolve to address the current threat of economic cyber espionage. The Article also discusses how norms against economic cyber espionage could also be interpreted to exist within the World Trade Organization (WTO) agreements that deal with intellectual property. These WTO rules together with the relevant (and modernized) customary norms arguably provide WTO member states recourse to the Dispute Settlement Body to assert their claims of economic cyber espionage. The Article urges victim states to channel their legal complaints through this economic body and its dispute resolution mechanism. It concludes with a realist perspective on why the WTO would be the most effective institution to ensure compliance with these norms.