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Exeter study urges the 37 states with cyber-law positions to spell out their legal weight
Exeter's Kubo Macak says the 37 states with published cyber-law positions, most in the Global North, should state the legal weight they intend them to carry. His paper argues that states publishing nothing have no comparable way to explain their silence.
The Scientist · Science desk
What happened
- National positions can help interpret treaties and identify rules of customary international law, but how much legal weight they carry remains uncertain.
- Most such positions are formal statements, typically issued by a country's ministry of foreign affairs.
- The UK has issued several positions, including through speeches given by successive attorneys general.
- Macak's suggested remedies include engagement in international forums, future work by the UN's International Law Commission, or an advisory opinion from the International Court of Justice.
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Why it matters
- decision States preparing their first positions now face a drafting choice: whether to write into the text what legal weight they intend it to carry.
- precedent If other states, courts and tribunals lean on these texts more over time, as Macak expects, wording chosen today is likely to be cited in later legal arguments about cyber operations.
- cost Governments that never publish pay in influence: unless they find another way into the debate, the study says, their say over the cyber rules shrinks significantly.
A law paper has no control arm, so the first question is what the argument rests on. Kubo Macak, a professor at the University of Exeter [4], mapped how national positions emerged and spread, and what legal significance they hold under international law [18]. He also leads the team that compiles The Cyber Law Toolkit, an online platform on international law and states' cyber activities [10]. His consultations reached representatives of almost 50 nations [7]. Only 37 states have published a position [3], so some of the governments he spoke with must be ones that have not [1].
Macak's case for treating these documents as law rests on what they contain. "National positions are more than mere expressions of policy. They contain legal reasoning and legal views, which distinguishes them from purely political declarations," he said [8]. In the paper, published in the European Journal of International Law [13], he notes that no rule limits what such a statement may contain [14]. A state can therefore write into the text itself how much weight it intends the text to bear, and so shape the debate over its significance [14].
I think the geography is the part of this argument that matters most. The study says a publishing state can use its position to frame and qualify the legal value of its views [16]. Most of the 37 publishers are in the Global North [3], so that drafting tool currently sits mostly with one group of states. A state without a position has no text to qualify. Its route in is through regional and global forums, and Macak's advice covers both cases: "States should clarify the legal significance of their national positions and engage with regional and global platforms with relevant mandates," he said [9].
He describes the documents as doing two jobs. "National positions are both an established component of the international legal system and a potential driver of its evolution," he said [17]. The second half of that sentence is a forecast. Macak expects reliance on these texts by states, courts and tribunals to grow [12], but the press summary of the paper does not report how often a court or tribunal has relied on a national position so far.
What to watch
- Whether the UN's International Law Commission takes up national positions on cyber activities in its future work.
- Whether any of the states poised to issue first positions include an explicit statement of the text's intended legal weight.
- Any request to the International Court of Justice for an advisory opinion that touches on cyber activities or on the weight of these statements.