The Cyber Dialogue at the Crossroads: Why States Disagree on the Need for a New Cyber Treaty?

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.