Seeking Customary International Human Rights Law in the Cyberspace: A Critique of the Tallinn Manual 2.0

Abstract

The recent Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations is a comprehensive study on the legality of states’ cyber activities under the extant international law. This paper focuses on Chapter 6 of the Tallinn Manual which deals with the legality of states’ cyber activities under international human rights law, and specifically examines the methodology used therein in identifying the customary law basis of states’ human rights obligations applicable to the cyber context. By grounding the methodological issue in the Tallinn Manual in the decades-old scholarly debates about methodologies of customary international law and customary international human rights law (CIHRL), I suggest that the difficulties that the Tallinn Manual has encountered in ascertaining CIHRL cannot be reductively attributed to the novelty of cyber technologies but should be seen as a manifestation of the inherent uncertainties in the process of law-identification. With a detailed analysis of the highly conservative and inductive approach of Chapter 6 of the Tallinn Manual, I point out a number of inconsistencies and ambiguities therein. I argue that these methodological problems have led to its two premises – the advancement of cyber technologies has posed new problems to which the legal solutions are not readily available, and cyber activities do not exist in a legal void – irreconcilable, and a confusion between description and prescription. I further argue that given the feature of the Tallinn Manual, some non-liquet conclusions regarding the legality of certain cyber activities under CIHRL could have been avoided.