Editor’s Note: This post is the second of three forming a book discussion on the Handbook on Developing a National Position on International Law and Cyber Activities: A Practical Guide for States.
Background
The Open-Ended Working Group on security of and in the use of information and communications technologies (“ICTs”) 2021-2015 (“OEWG”) was convened by the General Assembly via its resolution A/RES/75/240. Included within the OEWG’s mandate is:
“to continue to study, with a view to promoting common understandings, … how international law applies to the use of information and communications technologies by States”.
The fulfilment of this part of the mandate hinges on an open, granular and robust dialogue among States as to how they interpret and apply international law to the use of ICTs. To that end, the Annual Progress Reports (APR) of the OEWG (A/77/275, A/78/265 and A/79/214) have consistently invited States:
“to continue to voluntarily share their national views and positions, which may include national statements and practice, on how international law applies in the use of ICTs”.
33 States and two regional organisations (the African Union (AU) and the European Union) have to date issued such positions, with others expressing their readiness to do so. These may have been prompted by academic discussions and multilateral processes, including the OEWG’s call, as well as the unique challenges of cyberspace where national positions can serve as useful legal and policy tools to address the threats posed by malicious cyber operations.
The national positions published to date have greatly aided the identification of areas of convergence, divergence as well as potential gaps. While there has been an increasing momentum and trend to publish such positions, many States, especially from the Global South, have not done so yet. Questions may be posed as to whether there is sufficient balance and representation of views from different geographical regions, given the currently more Western-centric weightage (apart from the AU common position and a few Global South countries, such as Brazil, China, Costa Rica, Cuba, Iran, Kenya, Pakistan and Russia ). Connected to this is the question of whether one can reliably evaluate common understandings of how international law applies to the use of ICTs on the basis of this relatively limited dataset.
Against this backdrop, the Handbook on Developing a National Position on International Law and Cyber Activities: A Practical Guide for States (“the Handbook”) provides an analysis of the underlying legal and policy considerations for developing and issuing a national position. An appreciation of the “why” is crucial to States’ evaluation of the need for such positions, as well as to the internal process of developing such positions.
Macro level motivations, functions and aims and expected outcomes
The key drivers behind a State’s decision to develop a national position, or conversely a decision not to, and how to formulate it in the context of ICTs are inspired by complex and interconnected external and internal policy considerations. External considerations include perceived peer pressure, pressure from partners and academia while internal considerations include providing guidance and calibration when responding to cases of actual international cyber operations. The Handbook accurately observes that national positions are contextual and take the perspectives of the adopting States. Thus, articulating a State’s broader policy helps to tailor a national position to suit its particular interests and to formulate specific aims to be pursued. For example, national positions to date have reflected varying degrees of emphasis on cyber activities in armed conflict, or the social or economic impact of cyber activities and its implications on national development.
The Handbook makes a key contribution in its exposition of the triple functions of national positions, namely its communicative, transformative and preventative roles. The communicative function relates to the engagement with internal and external stakeholders across different levels and different elements of the broader discussion of how international law applies in cyberspace. By issuing a national position, the State communicates a clear message to the international community about its views on the application of international law to cyber activities, its readiness to actively engage in the relevant international legal processes and its adherence to international rule of law. The transformative functions relates to the legal effect of national positions, namely their potential to contribute to the clarification, development and adaption of the rules to the unique nature of cyberspace and the digital environment. The preventative function speaks to their role in fostering accountability for violations of international law by providing clarity as to the forms of cyber conduct that are considered to be a violation of international law. The prospect of legal consequences for wrongdoing drives restraint and respect for the rights of other States, thus deterring and preventing and/or mitigating the negative consequences of malicious cyber operations carried out by States and, in some cases, non-State actors.
Turning to the overall purpose and expected outcomes of the national position, these can be discerned from the explanations that frequently accompany a State’s publication of its national position, extending to the benefits to the State concerned and the international community as a whole. They typically address aspects of enhancing international peace and security, strengthening the international legal order or consolidating the domestic environment (for e.g., providing a clearer understanding by domestic stakeholders and contributing to national cyber resilience building).
Specific aims and motivations
The analysis of the specific aims and motivations contained in the Handbook is particularly pertinent to States for their internal deliberations and drafting of a national position should they decide to do so. The Handbook identifies four specific aims and addresses their formulation and motivations in considerable degree.
(a) Prevent miscalculations and escalations
The explicit articulation of how international law applies in cyberspace aims to increase predictability in State behaviour and stability in cyberspace thereby reducing the risk of conflict and preventing the unintended escalation of cyber activities. A key element of this is to draw a line in the sand so to speak, by emphatically signalling a States’ unwillingness to accept a certain level of interference in their sovereign affairs.
(b) Enhance compliance and accountability
The publication of national positions encourages States to adhere to their international legal obligations and enhances accountability for violations. Clarity as to the legal responses available under international law and/or which the victim State is prepared to take in response to malicious cyber operations can serve as a deterrent to prevent violations.
(c) Shape the evolution of international law
Most national statements describe their aim as interpreting and clarifying the application of existing international law to cyber operations or to contribute to such discussions. Indeed this goes towards fulfilling the mandate of the OEWG:
“to study, with a view to promoting common understandings, … how international law applies to the use of information and communications technologies by States”.
Apart from addressing questions of legal uncertainty, some States used national positions to convey their views on how international law should develop by proposing new rules; or conversely that there is no need to develop new legally binding instruments relating to cyber activities. The above are all facets of States’ aim of shaping the evolution of international law applicable to States’ use of ICTs via their national positions.
(d) Improve domestic frameworks for action and increased cyber resilience
A less explored aspect is the objective of increasing a State’s cyber resilience through enhanced preparedness to address malicious cyber operations. The very process of internal consultations towards the development of a national position leads to a consolidation and clarification of internal views, improved inter-agency coordination and can better position States to respond to malicious cyber operations.
The above objectives are by no means exclusive, and States may well have other specific aims and motivations which they wish to address in their national positions, depending on their national priorities and interests. In this regard, the Handbook provides helpful guidance as to the approach that States may take when the setting the aims of their national positions.
Constraints and risks
The Handbook fills an apparent gap in existing debate by highlighting the risks and limitations that may inhibit a State from issuing a national position. While these have not typically featured in the national positions published to date, they should be recognised and where appropriate, addressed.
A prominent cross-cutting constraint is the lack of capacity given the resource intensive process of developing a national position. Significant investments are needed to close the capacity gap between developed and developing countries. Another factor is the lack of awareness or lack of political will on the part of government leaders to engage in this process. States may also, for strategic reasons, decide not to publicise their national positions, or to calibrate the timing of the publication, the extent of substantive issues covered, or the degree of generality or depth of issues addressed. Maintaining constructive ambiguity and operational flexibility is another key factor given States’ concerns about being constrained by their public statements. States should assess and counterbalance such considerations against the risk of ceding influence over the interpretation of international law to others, and take the necessary steps to mitigate such risks.
Conclusion
The decision whether to develop and issue a national position is ultimately a sovereign decision within the exclusive purview of States. In setting out the legal and policy considerations drawn from an analysis of national positions and consultations with States, the Handbook provides crucial insights that States would hopefully find valuable for their deliberations on whether to issue a national position, including the specifics, depth and generality of such statements. In this regard, the development of national positions need not be a one-off exercise and can be supplemented by future iterations. There are signs, based on the indications from some States, that more national positions can be expected. Future discussions may well centre on the scope and granularity of such positions, as well as the prospect of more regional or cross regional common positions.
Developing a National Position on International Law and Cyber Activities: Legal and Policy Considerations
Written by Danielle YeowBackground
The Open-Ended Working Group on security of and in the use of information and communications technologies (“ICTs”) 2021-2015 (“OEWG”) was convened by the General Assembly via its resolution A/RES/75/240. Included within the OEWG’s mandate is:
The fulfilment of this part of the mandate hinges on an open, granular and robust dialogue among States as to how they interpret and apply international law to the use of ICTs. To that end, the Annual Progress Reports (APR) of the OEWG (A/77/275, A/78/265 and A/79/214) have consistently invited States:
33 States and two regional organisations (the African Union (AU) and the European Union) have to date issued such positions, with others expressing their readiness to do so. These may have been prompted by academic discussions and multilateral processes, including the OEWG’s call, as well as the unique challenges of cyberspace where national positions can serve as useful legal and policy tools to address the threats posed by malicious cyber operations.
The national positions published to date have greatly aided the identification of areas of convergence, divergence as well as potential gaps. While there has been an increasing momentum and trend to publish such positions, many States, especially from the Global South, have not done so yet. Questions may be posed as to whether there is sufficient balance and representation of views from different geographical regions, given the currently more Western-centric weightage (apart from the AU common position and a few Global South countries, such as Brazil, China, Costa Rica, Cuba, Iran, Kenya, Pakistan and Russia ). Connected to this is the question of whether one can reliably evaluate common understandings of how international law applies to the use of ICTs on the basis of this relatively limited dataset.
Against this backdrop, the Handbook on Developing a National Position on International Law and Cyber Activities: A Practical Guide for States (“the Handbook”) provides an analysis of the underlying legal and policy considerations for developing and issuing a national position. An appreciation of the “why” is crucial to States’ evaluation of the need for such positions, as well as to the internal process of developing such positions.
Macro level motivations, functions and aims and expected outcomes
The key drivers behind a State’s decision to develop a national position, or conversely a decision not to, and how to formulate it in the context of ICTs are inspired by complex and interconnected external and internal policy considerations. External considerations include perceived peer pressure, pressure from partners and academia while internal considerations include providing guidance and calibration when responding to cases of actual international cyber operations. The Handbook accurately observes that national positions are contextual and take the perspectives of the adopting States. Thus, articulating a State’s broader policy helps to tailor a national position to suit its particular interests and to formulate specific aims to be pursued. For example, national positions to date have reflected varying degrees of emphasis on cyber activities in armed conflict, or the social or economic impact of cyber activities and its implications on national development.
The Handbook makes a key contribution in its exposition of the triple functions of national positions, namely its communicative, transformative and preventative roles. The communicative function relates to the engagement with internal and external stakeholders across different levels and different elements of the broader discussion of how international law applies in cyberspace. By issuing a national position, the State communicates a clear message to the international community about its views on the application of international law to cyber activities, its readiness to actively engage in the relevant international legal processes and its adherence to international rule of law. The transformative functions relates to the legal effect of national positions, namely their potential to contribute to the clarification, development and adaption of the rules to the unique nature of cyberspace and the digital environment. The preventative function speaks to their role in fostering accountability for violations of international law by providing clarity as to the forms of cyber conduct that are considered to be a violation of international law. The prospect of legal consequences for wrongdoing drives restraint and respect for the rights of other States, thus deterring and preventing and/or mitigating the negative consequences of malicious cyber operations carried out by States and, in some cases, non-State actors.
Turning to the overall purpose and expected outcomes of the national position, these can be discerned from the explanations that frequently accompany a State’s publication of its national position, extending to the benefits to the State concerned and the international community as a whole. They typically address aspects of enhancing international peace and security, strengthening the international legal order or consolidating the domestic environment (for e.g., providing a clearer understanding by domestic stakeholders and contributing to national cyber resilience building).
Specific aims and motivations
The analysis of the specific aims and motivations contained in the Handbook is particularly pertinent to States for their internal deliberations and drafting of a national position should they decide to do so. The Handbook identifies four specific aims and addresses their formulation and motivations in considerable degree.
(a) Prevent miscalculations and escalations
The explicit articulation of how international law applies in cyberspace aims to increase predictability in State behaviour and stability in cyberspace thereby reducing the risk of conflict and preventing the unintended escalation of cyber activities. A key element of this is to draw a line in the sand so to speak, by emphatically signalling a States’ unwillingness to accept a certain level of interference in their sovereign affairs.
(b) Enhance compliance and accountability
The publication of national positions encourages States to adhere to their international legal obligations and enhances accountability for violations. Clarity as to the legal responses available under international law and/or which the victim State is prepared to take in response to malicious cyber operations can serve as a deterrent to prevent violations.
(c) Shape the evolution of international law
Most national statements describe their aim as interpreting and clarifying the application of existing international law to cyber operations or to contribute to such discussions. Indeed this goes towards fulfilling the mandate of the OEWG:
Apart from addressing questions of legal uncertainty, some States used national positions to convey their views on how international law should develop by proposing new rules; or conversely that there is no need to develop new legally binding instruments relating to cyber activities. The above are all facets of States’ aim of shaping the evolution of international law applicable to States’ use of ICTs via their national positions.
(d) Improve domestic frameworks for action and increased cyber resilience
A less explored aspect is the objective of increasing a State’s cyber resilience through enhanced preparedness to address malicious cyber operations. The very process of internal consultations towards the development of a national position leads to a consolidation and clarification of internal views, improved inter-agency coordination and can better position States to respond to malicious cyber operations.
The above objectives are by no means exclusive, and States may well have other specific aims and motivations which they wish to address in their national positions, depending on their national priorities and interests. In this regard, the Handbook provides helpful guidance as to the approach that States may take when the setting the aims of their national positions.
Constraints and risks
The Handbook fills an apparent gap in existing debate by highlighting the risks and limitations that may inhibit a State from issuing a national position. While these have not typically featured in the national positions published to date, they should be recognised and where appropriate, addressed.
A prominent cross-cutting constraint is the lack of capacity given the resource intensive process of developing a national position. Significant investments are needed to close the capacity gap between developed and developing countries. Another factor is the lack of awareness or lack of political will on the part of government leaders to engage in this process. States may also, for strategic reasons, decide not to publicise their national positions, or to calibrate the timing of the publication, the extent of substantive issues covered, or the degree of generality or depth of issues addressed. Maintaining constructive ambiguity and operational flexibility is another key factor given States’ concerns about being constrained by their public statements. States should assess and counterbalance such considerations against the risk of ceding influence over the interpretation of international law to others, and take the necessary steps to mitigate such risks.
Conclusion
The decision whether to develop and issue a national position is ultimately a sovereign decision within the exclusive purview of States. In setting out the legal and policy considerations drawn from an analysis of national positions and consultations with States, the Handbook provides crucial insights that States would hopefully find valuable for their deliberations on whether to issue a national position, including the specifics, depth and generality of such statements. In this regard, the development of national positions need not be a one-off exercise and can be supplemented by future iterations. There are signs, based on the indications from some States, that more national positions can be expected. Future discussions may well centre on the scope and granularity of such positions, as well as the prospect of more regional or cross regional common positions.
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