Publication
State silence and the international law of cyberspace
In this article, Barrie Sander, Assistant Professor of International Law, together with co-author, Duncan Hollis, Laura H. Carnell Professor of Law at Temple University, offer an inaugural assessment of how silences implicate international law-making in cyberspace through descriptive and normative lenses.
- Author
- Barrie Sander and Duncan Hollis
- Date
- 01 June 2025
- Links
- Read the full article here:
As cyberspace has become a rising priority along humanitarian, economic, political, and military lines, states have come to regularly participate in myriad aspects of its global governance. Amidst the verbal and physical state acts that come with this participation, however, significant state silence remains. Even more significantly, the legal salience of this silence has itself been met with silence. This chapter offers an inaugural assessment of how silences implicate international law-making in cyberspace through a descriptive and normative lens.
As a descriptive matter, the authors differentiate the absence of rhetoric about silence in international law from its factual existence using three cases: (i) internet governance; (ii) secret or covert state-sponsored cyber-operations; and (iii) unilateral statements by states about international law in cyberspace. From these, we identify potential conditions for whether and when silences will garner legal salience.
As a normative matter, we argue that, beyond the rhetorical silences dominant in doctrinal discourse, international law would benefit from recognizing catalysing and partial state silences: (i) catalysing silence involves the absence of state verbal and/or physical acts—whether reactive or not—that empower alternative regulatory forms (e.g., voluntary nonbinding norms) or authorities (e.g., non-state actor voices). (ii) partial silence involves instances where some verbal and physical state responses occur but lack any explicit references to international law.