Advantage one is Ambiguity —

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Hollis ’21 — Duncan Hollis (Nonresident Scholar, Carnegie Endowment for International Peace; James E. Beasley Professor of Law, Temple Law School); “A Brief Primer on International Law and Cyberspace;” June 14th, 2021; Carnegie Endowment for International Peace;
Silence: Without tailored-made treaties on cyber issues, the application of international law depends on identifying customary international law rules—that is, state practice accepted as law. For many years, figuring what states were doing in cyberspace—let alone what they thought international law had to say about it—was complicated by state silence.
Over the last decade, however, several states have begun to speak out. Beginning in 2012, the United States started to offer its views in a series of speeches and statements. In 2018, the United Kingdom’s Attorney General made an important statement of UK views. In the ensuing years, other (mostly European) states began to offer their own detailed perspectives, including Australia, Estonia, Finland, France, Germany, and the Netherlands. Ongoing efforts at the UN and in regional contexts like the OAS are now seeking to expand the list of states with opinions on international law in cyberspace. As yet, however, the vast majority of states remain silent.
Why these states remain silent is often unclear. Some may wish to avoid becoming entangled in international disputes among those states who have spoken out. For others, however, the issue may be a matter of legal capacity. Many states lack the personnel or resources to understand the issues involved in applying international law to cyberspace. Thus, a threshold issue for international law’s application is building up sufficient legal capacity for all states to have a voice in shaping what international law says on cyber issues.
Existential Disagreements: Among those states that have taken positions on international law’s application to cyberspace, there are a number of “existential” disagreementscompeting claims that a particular international legal rule or regime is entirely included or excluded from cyberspace. In the UN context, for example, a few states have challenged the availability of international humanitarian law, the right of self-defense, the duty of due diligence, and the right to take countermeasures with respect to online activity. The existence (or absence) of one or more of these legal frameworks from cyberspace has significant implications for international law’s application, impacting how states conduct their cyber operations in armed conflicts, their ability to respond to malicious cyber activity conducted by other states, and what actions they must take to protect the rights of third states from harms originating in their own territories.
Interpretative Questions: Even where states accept that a particular international legal rule or regime applies in cyberspace, substantial interpretative questions often remain open to debate. International legal regimes like nonintervention, sovereignty, and human rights encounter much ambiguity in their applications to cyberspace. The duty of nonintervention, for example, protects a states’ international and external affairs from “coercive” intervention by other states. Yet, there’s no consensus on which “affairs” the duty protects, let alone what differentiates coercive from noncoercive cyber activity. Similarly, sovereignty is undoubtedly one of the core architectural features of the international legal order. States appear to diverge, however, on whether sovereignty merely is a foundational principle on which other international legal rules (like non-intervention) rest, or if it is an independent rule that can be breached by certain foreign state cyber operations directly.

NATO is key to shape international law in the cyber context, creating a clear framework for actors to abide by

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