From Cyber Norms to Cyber Rules: Re-engaging States as Law-makers

Abstract

Several indicators point to a crisis at the heart of the emerging area of international cyber security law. First, proposals for binding international treaties by leading stakeholders, including China and Russia, have been met with little enthusiasm by other states, and are generally seen as having limited prospects of success. Second, states are extremely reluctant to commit themselves to specific interpretations of controversial legal questions and thus to express their cyberopinio juris. Third, instead of interpreting or developing rules, state representatives seek refuge in the more ambiguous term ‘norms’. This article argues that the reluctance of states to engage in international law-making has left a power vacuum, lending credence to claims that international law fails in addressing modern challenges posed by rapid technological development. In response, several non-state-driven norm-making initiatives have sought to fill the void, including Microsoft's cyber norms proposals and theTallinn Manualproject. The article then contends that this emerging body of non-binding norms presents states with a critical window of opportunity to reclaim a central law-making position, similar to historical precedents including the development of legal regimes for Antarctica and nuclear safety. Whether the supposed crisis will lead to the demise of inter-state cyberspace governance or a recalibration of legal approaches will thus be decided in the near future. States should assume a central role if they want to ensure that the existing power vacuum is not exploited in a way that would upset their ability to achieve strategic and political goals.

The Cyber Dialogue at the Crossroads: Why States Disagree on the Need for a New Cyber Treaty?

“…Insisting on their views the states give birth to doubts about the ability of international law to properly address the risks. As Kubo Mačák puts it: "the reluctance of states to engage in international law-making has left a power vacuum, lending credence to claims that international law fails in addressing modern challenges posed by rapid technological development" [6]. Could it be that neither side makes concessions because both of them are interested in maintaining the state of uncertainty?…”

Information and telecommunications diplomacy in the context of international security at the United Nations

“…In some circumstances, non-binding rules that governments are willing to fully implement are preferable to binding rules that they don’t implement. And as Mačák (2017) put it in concluding his critical article on the matter:…”

“…Scholarly journals provide a plethora of articles about cyber governance, information war and security in general or specific topics such as the protection of critical infrastructures or the development or application of international law, but there is shortage of academic literature focusing on the GGE or the OEWG work. One noteworthy academic piece devoted to the GGE is the recent article by Mačák (2017). There are also academic pieces (many of them referred to in this article) that devote a section or chapter to the GGE or the OEWG in a broader context.…”

Offensive cyberoperasjoner: Den nye normalen?

“…Trussel om avstraffelse har dermed begrenset effekt. Internasjonal normbygging har også vist seg krevende (Mačák, 2017; se også Jacobsen dette temanummer).…”