Skip to main content Accessibility help
×
×
Home

Lex Lata comes with a Date; or, What Follows from Referring to the “Tallinn Rules”

  • Lianne J.M. Boer (a1)
Extract

At first sight, the question that Dan Efrony and Yuval Shany ask in their article, A Rule Book on the Shelf?, makes sense. If a group of lawyers writes a legal manual for state legal advisors, the logical follow-up question would indeed be, do they use it? Do these “black-letter rules,” as the Manual itself terms them, actually “provid[e] international law advice” to states operating in cyberspace? Given the Manual's own claim that its “effort [is] to examine how extant legal norms apply” to cyber warfare, one may indeed wonder whether states have used the Manual as intended—as a manual.

  • View HTML
    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      Lex Lata comes with a Date; or, What Follows from Referring to the “Tallinn Rules”
      Available formats
      ×
      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

      Lex Lata comes with a Date; or, What Follows from Referring to the “Tallinn Rules”
      Available formats
      ×
      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

      Lex Lata comes with a Date; or, What Follows from Referring to the “Tallinn Rules”
      Available formats
      ×
Copyright
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
Hide All

1 Duke University School of Law, LENS Conference 2013 | Michael N. Schmitt, The Law of Cyberwar: The Tallinn Manual, YouTube, 1.06:46 (Mar. 1, 2013) [hereinafter Lens 2013].

2 Michael N. Schmitt, The Tallinn Manual on the International Law Applicable to Cyber Warfare, Watson Institute for International Studies, Brown University, 21.07 (2013) [hereinafter Brown 2013].

3 Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations 2 (Michael N. Schmitt ed., 2017) [hereinafter Tallinn Manual 2.0].

4 Id. at 1; see also Tallinn Manual on the International Law Applicable to Cyber Warfare 5 (Michael N. Schmitt ed., 2013) [hereinafter Tallinn Manual].

6 On the use of capitals in the introduction of the m/Manual, see Roos van Keulen, Introducing a Critical Stylistic Analysis: How Linguistic Features Contributed to the Tallinn Manual's Power Position 34–35 (Vrije Universiteit Amsterdam, 2018).

7 Efrony & Shany, supra note 5, at 585.

8 A point of critique mentioned by Efrony and Shany, id. at 589.

9 Wouter G. Werner, Scripting the Future in Tallinn 2.0, in Law-Making and Legitimacy in International Humanitarian Law, draft at 16–20 (Heike Krieger ed., forthcoming 2019) (on file with the author). Parts of the following text are taken from Lianne J.M. Boer, International Law as We Know It: Cyberwar Discourse and the Construction of Knowledge in International Legal Scholarship chapter 5 (Dissertation, Vrije Universiteit Amsterdam, 2017).

10 Tallinn Manual, supra note 4, at 9, 11.

11 Werner, supra note 9, at 16–17.

12 Werner, supra note 9, at 16–18.

13 See the 1994 San Remo Manual, the 2009 Harvard Manual and the 2013 and 2017 Tallinn Manuals respectively. On “normative requirements” see Werner, supra note 9, at 19.

14 Tallinn Manual, supra note 4, at 6, 7.

15 HLS Program on International Law and Armed Conflict, Michael N. Schmitt: Pilac Lecture on Cyber Operations and IHL: Fault Lines and Vectors, 53.07 (Apr. 3, 2015) [hereinafter Pilac 2015].

16 US Naval War College, Cycon 2012 | Michael Schmitt: Tallinn Manual Part I, 3.12 (June 5–8, 2012) [hereinafter Cycon 2012, Part I]. On restatements, see infra note 28.

17 Pilac 2015, supra note 15, at 55.26, 52.52. In the presentation from which this quote is taken, Schmitt misspeaks at 55.26 and says the experts were “slave[s] to lex ferenda,” but it is obvious from the context, as well as from other presentations and sources on the Tallinn Manual, that this is the opposite of what he intended to say. I have therefore changed it in the body text.

18 Lens 2013, supra note 1, at 1.06:46. Note how the introduction to the first Tallinn Manual states the drafting process finished in July 2012. See Tallinn Manual, supra note 4, at 10; Michael N. Schmitt, The Notion of “Objects” During Cyber Operations: A Riposte in Defence of Interpretive and Applicative Precision, 48 Israel L. Rev. 81, 82 (2015).

19 Tallinn Manual 2.0, supra note 3, at 2–3.

20 Tallinn Manual, supra note 4, at 5–6; Brown 2013, supra note 2, at 1.18:04. Efrony and Shany also refer to the debate about whether the Tallinn Manual in fact manages this distinction. See supra note 8. See also Nicholas Tsagourias, The Tallinn Manual on the International Law Applicable to Cyber Warfare: A Commentary on Chapter II – the Use of Force, 15 Y.B. Int'l Humanitarian L. 19, 40 (2012); Kenneth Watkin, The Cyber Road Ahead: Merging Lanes and Legal Challenges, 89 Int'l L. Stud. 472, 494–495 (2013); Michael J. Adams, A Warning About Tallinn 2.0 … Whatever It Says, Lawfare (Jan. 4, 2017); Lianne J.M. Boer, “Restating the Law ‘as It Is’”: On the Tallinn Manual and the Use of Force in Cyberspace, 5 Amsterdam L.F. 4 (2013). On the (im)possibility of this distinction in general, see Wouter G. Werner, International Law: Between Legalism and Securitization, in Security: Dialogue across Disciplines 196, 196 n.1 (Philippe Bourbeau ed., 2015). See generally Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument 470–71 (2005) (pointing this impossibility out in the context of customary law).

21 Cycon 2012, Part I, supra note 16, at 11.37.

22 Ingo Venzke, How Interpretation Makes International Law: On Semantic Change and Normative Twists 17 (2012); Werner, supra note 9, at 7, 8.

23 See also Werner, supra note 9, at 8; Oliver Kessler & Wouter Werner, Expertise, Uncertainty, and International Law: A Study of the Tallinn Manual on Cyberwarfare, 26 Leiden J. Int'l L. 793, 805 (2013); Wouter Werner & Lianne Boer, ‘It Could Probably Just as Well Be Otherwise’: Imageries of Cyberwar, in Risk and the Regulation of Uncertainty in International Law 39 (Mónika Ambrus et al. eds., 2017). On this “interventionist legal thought,” and “law-stretching instead of law-making,” see Jean d'Aspremont, Cyber Operations and International Law: An Interventionist Legal Thought, 21 J. Conflict & Security L. 575 (2016), especially Section 3.

24 For a different take on the dictate of the form of the manual, see Werner, supra note 9.

25 Efrony & Shany, supra note 5, at 584, 583.

26 Id. at 596, 631, 587.

27 Id. at 597.

28 Id. at 593 (emphases added).

29 This ultimately goes back to what it means to “restate” the law in a new form and the impossibility of not saying something new. See Werner, supra note 9, at 8 (pointing out that the experts “claim that it does not matter who restates the rules; it only matters whether existing rules are correctly reproduced”).

30 Werner, supra note 9, at 8.

31 Efrony & Shany, supra note 5, at 586.

32 Id. at 652.

33 Id. at 648.

34 Id. at 648, 604.

35 Lens 2013, supra note 1, at 1.06:54.

36 Cycon 2012, Part I, supra note 16, at 6.40.

37 As suggested by Efrony & Shany, supra note 5, at 652.

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

AJIL Unbound
  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed