The vexed issue of whether the international community needs a new legal agreement on cyber-security has in recent years turned into a high-level political game. Some nations are strongly in favour of adopting a new global treaty, others are equally opposed. In my view it is premature to bind states into any new legal instrument when the future of their activities in cyber-space remains so uncertain, and while we still don’t know how to apply existing laws to current cyber ‘reality’.
The most widely discussed topic among legal experts is how jus ad bellum (international law governing the use of force) and jus in bello (international humanitarian law) are to be interpreted in the modern cyber context, and the extent to which they apply. To shed light on these questions, the NATO Cooperative Cyber Defence Centre of Excellence is sponsoring the development of the Manual on International Law Applicable to Cyber Warfare – or the Tallinn Manual for short. Written by a group of top legal experts, it aims to establish an authoritative reference on the subject and is due to be published towards the end of 2012.
But no legal textbook can answer such imponderables as what nation states will be up to in cyber-space in another few years, or what types of international behaviour a new legal instrument would be expected to regulate. Since negotiating a treaty is a lengthy process, and states are still developing their cyber-capabilities and formulating their strategies, any treaty negotiated now could well be out of date before the ink is dry. It therefore seems both prudent and wise to adopt the approach of many western nations: to promote rules of behaviour and determine best practices, rather than pressing for a new global treaty. While some states will no doubt continue to promote strict control over cyber-space, and others will prefer the exact opposite, the correct approach probably lies somewhere in between.
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