Nations should do more to reduce the uncertainty about the legal value of their positions on cyber activities, a new study says.
National positions set out governments' views on how international law applies to cyber activities. These statements can help interpret international treaties and identify rules of customary international law, although their precise legal weight remains uncertain.
To date just 37 states - most in the global North – have issued such positions, although others are poised to follow.
The research, by Professor Kubo Macak from the University of Exeter, outlines how nations can reduce this uncertainty by expressly addressing the intended legal significance of their own positions and through engagement in relevant international forums, as well as possible future work by the UN's International Law Commission or an advisory opinion from the International Court of Justice.
Governments can use their national positions to explain the legal significance they intend those statements to have. The UK has issued several national positions, including through speeches by successive Attorneys General.
Professor Macak, who engaged with representatives from almost 50 nations to discuss their practices and priorities, said: "Understanding the legal weight of these statements is important. National positions are more than mere expressions of policy. They contain legal reasoning and legal views, which distinguishes them from purely political declarations.
"States should clarify the legal significance of their national positions and engage with regional and global platforms with relevant mandates."
Professor Macak's work maps the emergence and spread of national positions and their legal significance under international law. He leads the team which compiles The Cyber Law Toolkit, a global online platform showing crucial information about international law and the cyber activities of nations.
He found national positions have gained wide recognition. These are usually formal statements, typically issued by a ministry of foreign affairs.
Professor Macak said: "National positions are both an established component of the international legal system and a potential driver of its evolution. Their future impact will depend on whether states seize the opportunity to transform present ambiguities into meaningful shared understandings. The choice is in their hands.
"Given the growing number and importance of national positions, they will likely be increasingly relied upon by other states, by international courts and tribunals and by other actors within the international legal system. It is therefore essential that indeterminacy is reduced."
The study, published in the European Journal of International Law, outlines how there is no rule delimiting the scope of what such position statements may contain, and they need not be confined to substantive discussions alone. States may also use their positions to comment expressly on the legal weight of those texts, thereby influencing the debate on their significance under international law.
For those who do not wish to issue national positions, alternative avenues of engagement are needed if they are to participate in the debate over the legal status and significance of national positions. Otherwise, they run the risk of significantly reducing their influence over the relevant legal framework.
