Skip to main content Accessibility help
×
×
Home

On the Shelf, But Close at Hand: The Contribution of Non-State Initiatives to International Cyber Law

  • Kubo Mačák (a1)
Extract

In late 2018, the New York Times reported that the U.S. Cyber Command had targeted individual Russian hackers in order to deter them from engaging in conduct that could affect the organization and outcome of the U.S. mid-term elections. This unusual preemptive step suggests that states are looking for creative solutions to safeguard their national interests in cyberspace. But to what extent should their conduct be guided by considerations of international law? In this essay, I explore several key aspects of that central conundrum. I argue that (1) we should see cyberspace as an underregulated (but not ungoverned) domain; (2) a main reason for that state of affairs lies in a unique strategic dilemma innate to the cyber domain; and (3) non-state initiatives, including the eponymous “rule book on the shelf,” have a critical role to play in the development of the law in this area.

  • 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.

      On the Shelf, But Close at Hand: The Contribution of Non-State Initiatives to International Cyber Law
      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.

      On the Shelf, But Close at Hand: The Contribution of Non-State Initiatives to International Cyber Law
      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.

      On the Shelf, But Close at Hand: The Contribution of Non-State Initiatives to International Cyber Law
      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.
Footnotes
Hide All

I am grateful to Ana Beduschi, Curtis Bradley, Ashley Deeks, Maggie Gardner, Fleur Johns, Tomáš Minárik, and Michael N. Schmitt for comments on earlier drafts.

Footnotes
References
Hide All

3 Cf., e.g., David R. Johnson & David Post, Law and Borders: The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367 (1996).

5 See Draft Resolution: Advancing Responsible State Behaviour in Cyberspace in the Context of International Security, UN Doc. A/C.1/73/L.37 (Oct. 18, 2018); Revised Draft Resolution: Developments in the Field of Information and Telecommunications in the Context of International Security, UN Doc. A/C.1/73/L.27/Rev.1 (Oct. 29, 2018). Somewhat surprisingly, both proposals were approved by the First Committee of the UN General Assembly in November 2018.

6 See, e.g., Tim S. Wu, Cyberspace Sovereignty? The Internet and the International System, 10 Harv. J.L. & Tech. 647, 660 (1997) (noting a 1996 French proposal).

9 See, e.g., Leonhard Kreuzer, Disentangling the Cyber Security Debate, Völkerrechtsblog (June 20, 2018).

11 Efrony & Shany, supra note 2, at 652.

12 Antarctic Treaty, Dec. 1, 1959, 402 UNTS 71.

14 UN Convention on the Law of the Sea, Dec. 10, 1982, 1833 UNTS 397.

15 See Anne-Marie Slaughter & William Burke-White, An International Constitutional Moment, 43 Harv. Int'l L.J. 1, 2 (2002).

16 See, e.g., Andrew T. Guzman, How International Law Works: A Rational Choice Theory 129 (2008).

17 See also Efrony & Shany, supra note 2, at 632–33.

18 Jack Goldsmith, Cybersecurity Treaties: A Skeptical View 10–12 (2011).

19 See René-Jean Dupuy, The Sea Under National Competence, in 1 A Handbook on the New Law of the Sea 247 (René-Jean Dupuy & Daniel Vignes eds., 1991).

21 Id.

22 Id.

23 Id.

24 Jeffrey Biller & Michael Schmitt, Un-Caging the Bear? A Case Study in Cyber Opinio Juris and Unintended Consequences, EJIL: Talk! (Oct. 24, 2018).

25 Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations 17 (Michael N. Schmitt ed., 2017) [hereinafter Tallinn Manual 2.0].

26 Cf. id. at 20–21, para. 13. The experts could not agree on the precise threshold at which such loss of functionality constitutes a violation. Id.

27 Id. at 22, para. 16.

28 See Jeremy Wright, Cyber and International Law in the 21st Century (May 23, 2018).

29 Id.

30 Biller & Schmitt, supra note 24.

31 Articles on Responsibility of States for Internationally Wrongful Acts, in Int'l Law Comm'n Rep. on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess., Arts. 22 and 49–53, UN Doc. A/56/10 (2001).

32 Wright, supra note 28.

33 Efrony & Shany, supra note 2, at 652.

34 Id. at 648–49.

35 Cf. Ram Jakhu, Evolution of the Outer Space Treaty, in 50 Years of the Outer Space Treaty 14–18 (Ajey Lele ed., 2017).

36 But see Zhixiong Huang & Kubo Mačák, Towards the International Rule of Law in Cyberspace: Contrasting Chinese and Western Approaches, 16 Chinese J. Int'l L. 271 (2017).

37 See further Joanna Kulesza, Multistakeholderism: Meaning and Implications, in Human Rights, the Digital Society and Law: A Research Companion (Mart Susi ed., forthcoming 2019).

40 Global Comm'n on the Stability of Cyberspace, Norm Package Singapore (Nov. 2018).

41 See Kubo Mačák, From Cyber Norms to Cyber Rules: Re-Engaging States as Law-Makers, 30 Leiden J. Int'l. L. 877, 894 (2017).

42 See, e.g., Louise Marie Hurel & Luisa Cruz Lobato, Unpacking Cyber Norms: Private Companies as Norm Entrepreneurs, 3(1) J. Cyber Pol'y 61, 67–70 (2018).

43 Jean d'Aspremont, Formalism and the Sources of International Law 222 (2011).

45 Kersti Kaljulaid, President of the Republic Opening Speech at CyCon 2017 (May 31, 2017).

47 Louise Matsakis, The US Sits out an International Cybersecurity Agreement, Wired (Nov. 11, 2018).

48 See, e.g., The Joint Service Manual of the Law of Armed Conflict vii (2004) (noting that the chapter on Maritime Warfare was “based substantially” on the San Remo Manual).

49 Case Concerning Oil Platforms (Iran v U.S.), Counter-Memorial and Counter-Claim, at 130 n.292 (June 23, 1997).

I am grateful to Ana Beduschi, Curtis Bradley, Ashley Deeks, Maggie Gardner, Fleur Johns, Tomáš Minárik, and Michael N. Schmitt for comments on earlier drafts.

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