Abstract
As evidenced by the preliminary results of work of the UN Open-ended Working Group on developments in the field of information and telecommunications in the context of international security, currently the states have different views towards legal regulation of cyberspace. A number of states (mostly Western) argue that the existing international law sufficiently addresses the relationships in the area, and they call on all interesting parties to express their views on how the law is applied, while other states, like Russia, China and Venezuela claim that there is a legal vacuum as to the regulation of cyberspace and propose starting to globally negotiate a new binding legal instrument. This paper explores the reasons for the states to insist on their views on the need for a new cyber treaty and demonstrates that the respective disagreement between states cannot be explained neither by a global interest in maintaining the state of legal uncertainty about the proper sources or rules, nor by the lack of choice of the parties to the debate regarding the tools to address such uncertainty. The authors argue that the explanation lies in the correlation between corresponding substantive and instrumental stances of both sides of the debate, since the states’ preferences regarding the appropriate rules can be more fully and effectively implemented within the respective instrumental solutions and such solutions provide their adherers with more tools to control the processes of their implementation.
Highlights
The problem of legal regulation of states’ conduct in cyberspace has become a widely discussed issue
States have different views towards legal regulation in this area: a number of states argue that the existing international law sufficiently addresses the relationships in the area, while other states, like Russia, China and Venezuela claim that there is a legal vacuum as to the regulation of cyberspace [1, 2]
In its Resolution 53/70 of 4 December 1998 ‘Developments in the field of information and telecommunications in the context of international security’ the UN General Assembly expresses ‘its concern that these technologies and means can potentially be used for purposes that are inconsistent with the objectives of maintaining international stability and security and may adversely affect the integrity of the infrastructure of States to the detriment of their security in both civil and military fields’ and considers ‘that it is necessary to prevent the use of information resources or technologies for criminal or terrorist purposes’
Summary
The problem of legal regulation of states’ conduct in cyberspace has become a widely discussed issue. States have different views towards legal regulation in this area: a number of states (including the United States, most European states, Australia and some others) argue that the existing international law sufficiently addresses the relationships in the area, while other states, like Russia, China and Venezuela claim that there is a legal vacuum as to the regulation of cyberspace [1, 2]. Certain states’ belief in sufficiency of existing international law is accompanied by the recognition of the need to determine how exactly it regulates cyber conduct [3], while the other states’ conviction as to the legal vacuum in the area do not prevent their insisting on applicability of certain existing rules (Russia and China highly endorse the principles of sovereignty and non-intervention in cyberspace [4]). A number of those states who oppose the idea of a new treaty, do not consider this path as unacceptable per se, but declare that it is premature to discuss it (as do, for example, the United States and the United Kingdom)
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