Lex Lata comes with a Date; or, What Follows from Referring to the “Tallinn Rules”

Lianne J.M Boer

doi:10.1017/aju.2019.11

Abstract

At first sight, the question that Dan Efrony and Yuval Shany ask in their article, A Rule Book on the Shelf?, makes sense. If a group of lawyers writes a legal manual for state legal advisors, the logical follow-up question would indeed be, do they use it? Do these “black-letter rules,” as the Manual itself terms them, actually “provid[e] international law advice” to states operating in cyberspace? Given the Manual's own claim that its “effort [is] to examine how extant legal norms apply” to cyber warfare, one may indeed wonder whether states have used the Manual as intended—as a manual.

Highlights

At first sight, the question that Dan Efrony and Yuval Shany ask in their article, A Rule Book on the Shelf?, makes sense
If a group of lawyers writes a legal manual for state legal advisors, the logical follow-up question would be, do they use it? Do these “black-letter rules,”[2] as the Manual itself terms them, “provid[e] international law advice”[3] to states operating in cyberspace? Given the Manual’s own claim that its “effort [is] to examine how extant legal norms apply” to cyber warfare,[4] one may wonder whether states have used the Manual as intended—as a manual
Though the authors remain notably quiet on what they think the status of the Tallinn Manual is, exactly, the repeated reference to the “Tallinn Rules,” the word “Rule Book” in the article’s title, and even the capitalization of the word itself—“Rules”6—all suggest that the authors consider the Manual to be at the very least “a normative point of reference.”[7]. I don’t question the correctness of that assumption

Summary

The Form of the Tallinn Manual

There is something to be said about the manual as a form. The word “manual” as it features in the title of these international law manuals may be a misnomer compared to its normal linguistic use, but it is safe to say that the Tallinn Manual’s drafters do intend it to be consulted by a very specific audience. The Manual itself says it is intended for “users,”[14] which it identifies as, for example, state legal advisors.[15] Importantly, this choice determines the scope of the law it deals with. Note how Michael Schmitt, the Manual’s director, describes the Manual as “a restatement of the law. He states how the group of experts was “slave to lex [lata]”

AJIL UNBOUND

Conclusion