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17 December 2014

Development of new international law to govern cyber "doubtful," new Tallinn Paper says

New treaties or customary international law to govern the cyber realm are inessential; instead, existing international law should be in the focus, concludes the newest addition to the Tallinn Papers. States, however, should prioritise the area, argue the authors of The Nature of International Law Cyber Norms.

In this special expanded issue of Tallinn Papers, Professor Michael Schmitt, the Centre’s Senior Fellow, and Liis Vihul, Researcher in the Law and Policy Branch at the Centre, discuss the two sources of international law – treaties and custom – and explain the different challenges cyberspace poses to their formation, identification and application. “Despite the attention that cyber activities have drawn in the past decade, the conclusion of new treaties or the crystallisation of new customary law norms to govern them is doubtful. /…/ Instead, the application and interpretative evolution of existing international law is the most likely near-term prospect,” concludes the analysis.

“Unless states wish to surrender their interpretive prerogative to academia, it is incumbent upon them to engage with cyber issues more openly and more aggressively,” warn Schmitt and Vihul. They note that scholarly works such as the Tallinn Manual have proven especially influential interpreting existing international law in the cyber context. However, this reality is not desirable for states that enjoy the formal authority to make international law.

The Tallinn Papers is a peer reviewed publication of the NATO Cooperative Cyber Defence Centre of Excellence. The Tallinn-based NATO Cooperative Cyber Defence Centre of Excellence is a NATO-accredited knowledge hub focused on interdisciplinary applied research and development as well as consultations, trainings and exercises in the field of cyber security. The Centre’s mission is to enhance capability, cooperation and information sharing among NATO, allies and partners in cyber defence.

The full text of The Nature of International Law Cyber Norms can be accessed through the Centre’s publications library on https://ccdcoe.org/multimedia/tallinn-paper-nature-international-law-cyber-norms.html.