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The Potential for the Normative Regulation of Cyberspace: Implications for India

Posted by Pranav M B at Jul 30, 2018 09:00 AM |
Author: Arindrajit Basu Edited by: Elonnai Hickok, Sunil Abraham and Udbhav Tiwari Research Assistance: Tejas Bharadwaj

The standards of international law combined with strategic considerations drive a nation's approach to any norms formulation process. CIS has already produced work with the Research and Advisory Group (RAG) of the Global Commission on the Stability of Cyberspace (GCSC), which looks at the negotiation processes and strategies that various players may adopt as they drive the cyber norms agenda.

This report focuses more extensively on the substantive law and principles at play and looks closely at what the global state of the debate means for India

With the cyber norms formulation efforts in a state of flux,India needs to advocate a coherent position that is in sync with the standards of international law while also furthering India's strategic agenda as a key player in the international arena.

This report seeks to draw on the works of scholars and practitioners, both in the field of cybersecurity and International Law to articulate a set of coherent positions on the four issues identified in this report. It also attempts to incorporate, where possible, state practice on thorny issues of International Law. The amount of state practice that may be cited differs with each state in question.

The report provides a bird’s eye-view of the available literature and applicable International Law in each of the briefs and identifies areas for further research, which would be useful for the norms process and in particular for policy-makers in India.Historically, India had used the standards of International Law to inform it's positions on various global regimes-such as UNCLOS and legitimize its position as a leader of alliances such as the Non-Aligned Movement and AALCO. However, of late, India has used international law far less in its approach to International Relations. This Report therefore explores how various debates on international law may be utilised by policy-makers when framing their position on various issues. Rather than creating original academic content,the aim of this report is to inform policy-makers and academics of the discourse on cyber norms.In order to make it easier to follow, each Brief is followed by a short summary highlighting the key aspects discussed in order to allow the reader to access the portion of the brief that he/she feels would be of most relevance. It does not advocate for specific stances but highlights the considerations that should be borne in mind when framing a stance.

The report focuses on four issues which may be of specific relevance for Indian policy-makers. The first brief, focuses on the Inherent Right of Self-Defense in cyberspace and its value for crafting a stable cyber deterrence regime. The second brief looks at the technical limits of attributability of cyber-attacks and hints at some of the legal and political solutions to these technical hurdles. The third brief looks at the non-proliferation of cyber weapons and the existing global governance framework which india could consider when framing its own strategy. The final brief looks at the legal regime on counter-measures and outlines the various grey zones in legal scholarship in this field. It also maps possible future areas of cooperation with the cyber sector on issues such as Active Cyber Defense and the legal framework that might be required if such cooperation were to become a reality.Each brief covers a broad array of literature and jurisprudence and attempts to explore various debates that exist both among international legal academics and the strategic community.

The ongoing global stalemate over cyber norms casts a grim shadow over the future of cyber-security. However, as seen with the emergence of the nuclear non-proliferation regime, it is not impossible for consensus to emerge in times of global tension. For India, in particular, this stalemate presents an opportunity to pick up the pieces and carve a leadership position for itself as a key norm entrepreneur in cyberspace.

Read the full report here