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The Slow Process of Normativizing Cyberspace

  • Nicholas Tsagourias (a1)
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In their article, Dan Efrony and Yuval Shany claim that post-Tallinn Manual practice demonstrates that states entertain doubts about the applicability to cyberspace of the rules contained in the Tallinn Manuals. According to the authors, post-Tallinn practice reveals that states treat the application of international law to cyber operations as optional; operate in parallel—legal and nonlegal—tracks of conduct; and engage in gradated enforcement. They also claim that their study invites further research into the implications of state conduct in cyberspace for general international law theory. I will use this last point as a springboard to explain the process of normativization in cyberspace—that is, the process of subjecting states’ cyber operations and behaviors to legal standards. To do this, I will use Oscar Schachter's representation of a normative (legal) order as a three-story building. According to Schachter's metaphor, the third floor is occupied by public values and general policy aspirations; the second floor is occupied by law with its distinctive normative patterns of prescribing, proscribing, and applying; while the ground floor is occupied by the social reality of conduct. The three floors are not isolated but connected by escalators and staircases that go in both directions.

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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
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2 For a process-centered approach to norm creation in cyberspace, see Martha Finnemore & Duncan B. Hollis, Constructing Norms for Global Cybersecurity, 110 AJIL 425 (2016).

3 Oscar Schachter, Towards a Theory of International Obligation, in The Effectiveness of International Decisions 9–31 (Stephen M. Schwebel ed., 1971).

6 The GGE has not been a technical exercise. In almost all cases, these experts are government officials; the presence of legal advisers is common, and the process often involves diplomatic negotiations. The General Assembly mandates also placed the work of the GGE squarely in the realm of international security and disarmament. See Digital Watch Observatory, UN GGE.

7 Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security, para. 13, UN Doc. A/70/174 (July 22, 2015) [hereinafter UN GGE 2015 Report]; see also UN GGE 2013 Report, supra note 4, paras. 19–20.

8 See Ronald Dworkin, Taking Rights Seriously, chs. 2 and 3 (1978); Frederick Schauer, Playing by the Rules, ch. 1 (1971); Joseph Raz, Legal Principles and the Limits of Law, 81 Yale L.J. 823 (1972).

9 UN GGE 2015 Report, supra note 7, para. 10.

11 See Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, paras. 202, 205 (June 27); Delimitation of Maritime Boundary in Gulf of Maine Area (Can. v. U.S.), 1984 ICJ Rep. 246, para. 79 (Jan. 20).

12 Symposium on Sovereignty, Cyberspace, and Tallinn Manual 2.0, 111 AJIL Unbound (2017).

13 See, e.g., Corfu Channel (U.K. v. Alb.), Merits, 1949 ICJ Rep. 4, 35 (Apr. 9); Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicar.) and Construction of a Road in Costa Rica along the San Juan River (Costa Rica v. Nicar.), 2015 ICJ Rep. 665, para. 229 (Dec. 16).

14 One example of aligning existing norms to cyberspace is the treatment of cyber interference with the electoral infrastructure as a violation of the nonintervention norm. See UK Attorney General's Office, Cyber and International Law in the 21st Century.

15 See Efrony & Shany, supra note 1, at 649.

16 See id. at 648.

17 Id. at 649.

18 UNGA, Sixtieth Session, First Comm. 13th Meeting, UN Doc. A/C.1/60/PV.13, at 5.

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AJIL Unbound
  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
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