Squinting through the Pinhole: A Dim View of Human Rights from Tallinn 2.0

By PoKempner, Dinah | Texas Law Review, June 1, 2017 | Go to article overview

Squinting through the Pinhole: A Dim View of Human Rights from Tallinn 2.0


PoKempner, Dinah, Texas Law Review


Like the paradoxical task of establishing "law" to govern "war," the Tallinn Manual project of describing international law applicable to cyberattack is an exercise in mediating contending impulses. The law must on the one hand provide sufficient specificity and constraint to achieve its purpose-whether that is humanitarian protection or avoidance of easy resort to disproportionate, excessive, or destructive response. Such limits not only enable greater predictability in foreign relations but further the security and normative aims of humane, peaceful, rights-respecting societies. On the other hand, states and their legal advisors often appreciate and seek international rules articulated at a sufficient level of generality and elasticity to preserve room for maneuver and advantage. Beneath the lofty vantage point of legal consensus on a rule may lie anything from slight deviations on the interpretive path to a veritable battlefield. Restatements of the law are more valuable to the extent they get the points of consensus right and shine a strong light on everything else. While the initial Tallinn Manual volume on the laws of armed conflict was reasonably successful on this measure, the 2.0 version is less so, and nowhere is this more evident than in its chapter on international human rights law (IHRL).

This essay will evaluate the chapter in view of the Tallinn Manual 2.0's stated objective: furnishing "[s]tate legal advisors charged with providing international law advice to governmental decision makers" with "an objective restatement of the lex lata."' As a practitioner, I deeply appreciate the pragmatic approach. Unfortunately, the effort fails its own objective, both by approaching international human rights law through the blurry lens of customary international law and in its uneven and debatable account of what actually comprises that body of law. While the editors and authors plainly intend that their audience be mindful of human rights, the fluid and rapidly developing law in this area presents challenges, and so do widening divisions of opinion that are evident between governments, international experts, and civil society on what human rights law requires in the new digital age. This essay will discuss both the Tallinn Manual approach and the treatment of specific issues in IHRL. Human rights law applies in both peace and wartime, and to every action of government affecting individuals, so its omission from the Manual would be irresponsible. But to get the law right, the conscientious legal advisor should look elsewhere, and I will make suggestions throughout to that end.

I. The View from Military and National Security Experts on IHRL

A group of legal practitioners, academics, and technical experts were chosen by the editors to constitute International Groups of Experts who by discussion and consensus formulated and drafted rules. In the first round dealing with jus ad bellum and jus in bello, these persons were mainly experts in international humanitarian law (IHL), as one would expect. But in round 2.0, dealing with public international law in times of peace, the experts were also mainly ex-government or academic lawyers with expertise in military or national security law (with Steven Hill from the North Atlantic Treaty Organization (NATO) as a nonvoting organizational observer), and this perspective informs the text, edited by Michael Schmitt of the United States Naval War College and Liis Vihul then of the NATO Cooperative Cyber Defence Centre of Excellence.2 Many, though certainly not all, of the wellknown experts, contributors, and peer reviewers had also served as advisors to government,3 and the government of the Netherlands sponsored several rounds of reaction and input to the drafters by governments.4

Military and national security lawyers may care deeply about human rights but generally do not develop deep familiarity with IHRL and its constitutive processes-that is more typical of human rights advocates, litigators, academics, and state specialists. …

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