Lex lata comes with a date; or, what follows from referring to the “Tallinn rules”

Lianne J.M. Boer*

*Corresponding author for this work

Research output: Contribution to JournalArticleAcademicpeer-review

Abstract

At first sight, the question that Dan Efrony and Yuval Shany ask in their article, A Rule Book on the Shelf?, makes sense. If a group of lawyers writes a legal manual for state legal advisors, the logical follow-up question would indeed be, do they use it? Do these “black-letter rules,”2 as the Manual itself terms them, actually “provid[e] international law advice”3 to states operating in cyberspace? Given the Manual’s own claim that its “effort [is] to examine how extant legal norms apply” to cyber warfare,4 one may indeed wonder whether states have used the Manual as intended—as a manual. However, to ask whether states have “accepted,” “follow,” “reject,” or “maintain a ‘wait and see’ approach toward the Tallinn Rules”5 does suppose that these are, in fact, rules. Though the authors remain notably quiet on what they think the status of the Tallinn Manual is, exactly, the repeated reference to the “Tallinn Rules,” the word “Rule Book” in the article’s title, and even the capitalization of the word itself—“Rules”6—all suggest that the authors consider the Manual to be at the very least “a normative point of reference.”7 I don’t question the correctness of that assumption. The point of this essay is not to assess whether the Manual “got the law right,” or to point out that the experts are “really” doing lex ferenda rather than lex lata.8 I do argue, however, that the authors’ quiet acquiescence to what the Manual itself says it is becomes problematic when one considers the dictates of the Manual as a form. What I mean to say is that the Manual must claim, for reasons I will go into below, that it restates lex lata. This dictate of the form not only provokes the kind of research question that Efrony and Shany ask, but it also goes a very long way in predetermining their answers. In order to show why this is the case, I will first ask what is implied in the Manual as a form for international legal writing. The second part of the essay then discusses the way Efrony and Shany themselves refer to the Manual. Their failure to question the Manual’s form is problematic the moment we realize what follows from the claims the Tallinn Manual makes about what it is (for). This also means that the answer to their research question seems in some ways inevitable. In conclusion, perhaps we could even say that, however paradoxical it may seem, the demands of the Manual as a form preordain its own desuetude.

Original languageEnglish
Pages (from-to)76-80
Number of pages5
JournalAJIL Unbound
Volume113
Early online date4 Mar 2019
DOIs
Publication statusPublished - 2019

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