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5 J. Cybersecurity 1 (2019)

handle is hein.journals/jnlocybrs5 and id is 1 raw text is: CYBRSCUBT Research paper The end of the road for the UN GGE process: The future regulation of cyberspace Anders Henriksen* Faculty of Law, University of Copenhagen, Karen Blixens Plads 16, DK-2300 Copenhagen S, Denmark *Corresponding author: E-mail: anders.henriksen@jur.ku.dk Received 5 July 2018; revised 17 September 2018; accepted 13 November 2018 Abstract In June 2017, the fifth and so far last of the UN Group of Governmental Experts (UN GGE) were un- able to agree on a consensus report that would have brought additional clarity to how international law regulates cyberspace. The article discusses why the UN GGE process seemed to have now reached a dead-end. It argues that the discussion about how Information and Communication Technology (ICT) should be regulated is as much about strategy, politics and ideological differen- ces as it is about law. For the time being, states have too diverging interests and normative prefer- ences for consensus on anything but the most basic of legal findings to arise. The article also offers some suggestions about what the future holds with regard to the regulation of cyberspace. It argues that the collapse of the UN GGE process is likely to lead to a shift away from ambitious glo- bal initiatives and towards regional agreements between like-minded states. In turn, we may well see the gradual emergence of a fragmented international normative structure for ICT. It is also likely that nonstate actors will begin to play a more central role in the efforts to bring legal clarity to the governance of ICT. Keywords: cyber governance; regulation; UN GGE; international law Introduction As our societies become ever more dependent on information and communication technology (ICT), ensuring international agreement on what is proper and what is not proper behavior in cyberspace has become one of the most important policy issues of our time. In fact, since the digital world has increasingly become a scene of confronta- tion and potential conflict among states, norms - both formal and informal - appears to now be the preferred regulatory course for seeking to create stability and safety in cyberspace [1]. In an anarchi- cal cyberspace without rules of the road and shared expectations 1 Cyber security is discussed in a range of international fora, including in different UN fora. Reference should also be made to the two-phased UN sponsored World Summit on the Information Society (WSIS) held in Geneva in 2003 and in Tunis in 2005. In December 2015, a High-Level meeting of the General Assembly was organized to review the implemen- tation of the documents that had been produced in the course of the WSIS process. For an overview of the various organizational cyber- platforms at the UN, see Maurer T. Cyber Norm Emergence at the United Nations - An Analysis of the Activities at the UN Regarding OThe Author(s) 2019. Published by Oxford University Press. of behavior, stronger states will be free to impose their will on weaker states and minor incidents may escalate and spin out of control. Since the challenges of ICT was first brought to the attention of the UN General Assembly in the late 1990s, the so-called UN GGE process has been the primary avenue for interstate dialogue about the international legal regulation of cyberspace.1 To use the well- known terminology of Martha Finnemore and Kathryn Sikkink, for purposes of international law, the UN GGE framework has been the main organizational platform for states seeking to act as Cyber-Security, Belfer Center for Science and International Affairs, Harvard I(ennedy School, September 2011. https://www.belfercenter.org /publication/cyber-norm-emergence-united-nations-analysis-uns-activities- regarding-cyber-security (20 November 2018, date last accessed). See also the overview in Nye JS Jr, The Regime Complex for Managing Global Cyber Activities, Global Commission on Internet Governance, Paper Series 2013, 1. https://www.cigionline.org/sites/default/files/gcig_ paper-no1.pdf (20 November 2018, date last accessed). This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted reuse, distribution, and reproduction in any medium, provided the original work is properly cited. Journal of Cybersecurity, 2019, 1-9 doi: 10.1093/cybsec/tyy009 Research paper