Discussions on the applicability of existing international norms of responsible state behaviour to cyberspace are on-going within the UN Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (UN GGE) and several regional organisations. The need for trust and responsible state behaviour in cyberspace is acute and real as malicious uses of ICTs affect the prospect of economic and social benefits brought by an advanced information society and run the risk of escalating tensions between states.
On 17 April 2015, the ICT4Peace Foundation, with the generous support of the Dutch Government, will organize a panel discussion at the Global Conference on Cyberspace, The Hague, Netherlands on the topic of norms. Moderated by Dr. Eneken Tikk, Senior Advisor, ICT4Peace Foundation, the session will take a comprehensive and inclusive approach to norms emergence in cyberspace. It aims to complement the on-going dialogue within the GGE and other fora – primarily focused on the interpretation of international treaties – with views on additional sources of norms and normative instruments.
The interpretation of international treaties, which, as one of the instruments of international law, will inevitably never be precise and dynamic enough to offer practicable solutions to the acute and emerging threats, that countries are facing in the cyberspace. While some commentators have voiced the expectation of international custom to result from the general and consistent practice of states, formation of customary law is difficult, given the still developing understanding of operations in and through cyberspace.
There is, however, an additional source of international law to be employed in such vague circumstances, namely that provided for in Article 38(1) of the Statute of the International Court of Justice on the general principles of law recognised by civilised nations as primarily reflected in the judicial opinions of domestic courts. The general principles of law are intended to serve as gap fillers in a fragmented field of international law. The treaty-based approach inevitably results in gaps in the regulation as not all relevant issues can or should be solved by a treaty and treaty law: Some issues do not require international responses but rather require coordinated national level action; some may be resolved by politically binding and voluntary instruments. The general principles of law may serve the purposes of norms economy but could also correspond better to the realities of the emerging understanding of feasible and functional remedies.
Examining the use of the general principles of international law, as the shared understanding between civilised nations, directs us to practical solutions adopted at the national level and allows us to assess better the emerging areas of consensus likely to affect and define the development of hard law in the future. It will also indicate useful borderlines between international and national responses to issues of international cyber security. Therefore, it offers guidance to international resolution, as opposed to national, and notably allows us to determine priorities as well as subsequent future directions of international engagement. The panel will highlight the general principles of international law as an existing and mandatory avenue for finding and determining binding guidance for responsible state behaviour.
When studying the general principles of international law we need to remain open-minded in order to find some of these principles reflecting political consensus and agreement. Failure to approach the issue of norms in a comprehensive and inclusive manner leaves us partially unaware of possibly emerging consensus on responsible state behaviour. Hence the need to expand the exploration of responsible state behaviour to the realm of soft law as well as politically binding and voluntary normative instruments.
Building on on-going research and interviews, the ICT4Peace panel will discuss what states and non-state actors prioritise as (international) cyber security issues, what remedies have been developed to respond to these issues and whether such approaches amount to norms of responsible state behaviour.
The Agenda and Speakers of the Panel can be found here include:
ICT4Peace has launched it’s project on norms for peace and security in the cyberspace under the leadership of Dr. Eneken Tikk in 2012. The above mentioned panel as well as the preparatory research in 2015 has been made possible with the generous support by the Dutch Government.
At the Hague Conference, ICT4Peace, in cooperation with Clingendael, is also conducting an International Cybersecurity Diplomacy Course on 15 April 2015, prepared and moderated for ICT4Peace by Ms. Camino Kavanagh, Senior Advisor, ICT4Peace Foundation. Information can be found here.
Recent publications and events by ICT4Peace on international cyber security affairs can be found here.