Council on Foreign Relations looks back on the recent Cyber Conflict (CyCon) conference in Tallinn, Estonia and noticed a single underlying theme emerging from the week-long gathering: there was obvious angst about the lack of a clear, globally legal framework for conducting and evaluating cyber operations:
States, of course, are the primary (and some say only) creators of international law. Whether by concluding treaties or creating customary law by engaging in extensive state practice over time, states generally dictate what the rules of the road will be. But one confounding factor, at least in today’s cyber world, is that the large majority of state practice is done secretly and rarely sees the light of day. Far more than many other areas of geopolitical activity, states’ actual conduct in the cyber arena remains unknown and, to a large extent, unknowable to other states.
For this reason, products such as the Tallinn Manuals are garnering intense interest. The first Tallinn Manual, produced by an independent group of experts mostly drawn from NATO member states, came out in 2013. The Manual proffered what the experts saw as the current state of the law relevant to cyber operations that involved a state’s resort to force or a state’s conduct of armed conflict. Version 2.0 picks up where the first version left off, and will set forth the experts’ views on what international law applies to cyber activity that falls below the level of armed conflict or the use of force—activity such as cyber espionage or denial of service attacks. Because the Manuals have been crafted by recognized experts, and because the Manuals provide a systematic examination of what the rules seem to be today, many actors are treating the Manual as the closest thing to an authoritative source on the current state of the law.
The lack of agreed upon norms is going to become increasingly important as nations continue to leverage cyber operations as a means of spreading their political messages and influencing other nations to follow their stance on issues important to the country.