On the shelf, but close at hand: The contribution of non-state initiatives to international cyber law

Abstract

In late 2018, the New York Times reported that the U.S. Cyber Command had targeted individual Russian hackers in order to deter them from engaging in conduct that could affect the organization and outcome of the U.S. mid-term elections.1 This unusual preemptive step suggests that states are looking for creative solutions to safeguard their national interests in cyberspace. But to what extent should their conduct be guided by considerations of international law? In this essay, I explore several key aspects of that central conundrum. I argue that (1) we should see cyberspace as an underregulated (but not ungoverned) domain; (2) a main reason for that state of affairs lies in a unique strategic dilemma innate to the cyber domain; and (3) non-state initiatives, including the eponymous “rule book on the shelf,”2 have a critical role to play in the development of the law in this area.