Standard-setting and Normativity in International Governance of Interstate Relations in the Information and Communication Technologies Context

Abstract

The paper considers how the standard-setting path, taken by states with respect of the information and communication technologies (hereinafter: ICTs), correlates with the normativity in international governance of this sphere. The pro-normative reading of this question pushes to examine whether this path designates a prelawmaking phase, contributes to the interpretation of the lex lata general norms, or fills in the gaps that cannot be covered by the orthodox international lawmaking. The counter-normative reading assesses whether the standard-setting path precludes, contests, freezes, or substitutes the lawmaking. In order to fulfill these tasks, the author concentrates on two standard-setting sources: the ‘non-binding norms, rules, and principles of responsible state behaviour’ adopted by the UN level in relation to ICTs related context and International Code of Conduct for Information Security, drafted by the states–members of the Shanghai Cooperation Organization. The paper reveals that ‘non-binding norms, rules, and principles’ elaborated at the UN level do not change the scope of binding provisions of International law. Thus, the content of these standards did not generate any ‘added value’ with respect to the negative and positive obligations of the states. Moreover, these standards cannot serve as an interpretation or understanding as to how existing international law applies to ICTs precisely because of the caveat made by the states with respect to the additional, subordinated role of these norms, rules, and principles. Such constellation puts in place a ‘normative gap scenario’ showcasing that for the many states the legal uncertainty and legal gaps are a more profitable constellation. However, should the states follow the standard-setting track and adhere to the non-binding norms, provided that they are relaxing existing legal obligations of states, this ‘deviation scenario’ will also erode the normativity of International law. A solution can be found in the stage-by-stage shift from the standard-setting to the law-creating track. Already elaborated norms, rules, and principles of responsible state behaviour allow this shift for. It can happen in two stages: at the level of content and then with respect to the nature of these norms.