The role of expert groups in shaping international cyberlaw: a case study of the Tallinn Manuals and international law-making

Abstract In newer areas of international law or, where the existing framework is underdeveloped or ambiguous, perspectives in multilateral law-making are stagnant, and there is a need to address a pressing issue, legal scholars and expert groups might feel the deontological urge to take the initiative and formulate normative propositions; states, on their part, might well be inclined to search for suitable solutions in their writings. However, whether this trend is really a harbinger of a ‘decay of consent’ and a creeping ‘technicisation’ of international law through the increasing recourse to informal international law-making is not obvious and must be assessed on a case-by-case basis. By drawing on a structured analysis of the authority of ‘the teachings of the most highly qualified publicists’ as subsidiary means for the determination of rules of law, also in light of the recent work by the International Law Commission on the subject, the purpose of this contribution is to examine the Tallinn Manuals as a case study of how expert groups claim authority—but more challengingly succeed—in articulating international regulation in an area, that of international law applicable to the cyber domain, where, also given the tensions existing between major cyber players, normative uncertainty is set to remain high.