By: Nimrod Karin
Q: In a few words, please tell us a bit about yourself and how you found your way to the academic world
A: I’m currently a doctoral candidate at New York University’s School of Law. Previously, I worked as a government lawyer: between 2006 and 2012, I served as a legal adviser in the Israel Defense Force’s International Law Department; I then joined Israel’s Permanent Mission to the United Nations, where I served as a legal adviser until 2013. Since returning to law school to pursue advanced degrees, I’ve often referred to my years of practicing law as a “previous life,” that is, as opposed to my present reincarnation as an (aspiring) legal scholar. Yet over the past five years, my two professional “lives” have proved to be closely intertwined, so I’ve come to see them as running in parallel.
My doctoral research concerns the work of government lawyers who advise the executive branch in matters of international use of force. Thus I study the legal practice and bureaucratic function performed by people such as my (old) self – so my own experience in this professional-institutional capacity clearly inspires and continuously informs my research. It’s almost as if I was drawn to academia in search for answers to the very questions that troubled me most as a government lawyer: how do legal advisers know what the law says? How does this determination feed into executive branch decision-making processes? And what can be learned from this regarding the real-life operation of international law?
I think these are interesting as well as important questions, across legal fields, and above all in the specific area I study: the use of force. Here, the interaction between hard power, high politics, and core human values produces a unique combination of pressures and stakes. Consequently, our expectations with respect to the relevant legal norms – both domestic-constitutional and public-international – are equal only to the challenges posed thereto. Moreover, these expectations and challenges alike are greater than in any other area of law. To my mind, this is fundamentally why the legal norms governing the international use of force are incredibly complex and enduringly conflicted.
As part of this, my doctoral research also touches on aspects of cyber warfare. Though I hardly dealt with cyber-related issues as a government lawyer, I was able to witness first-hand the early stages of legal advice on these issues. I also participated in both intra- and inter-governmental consultations regarding the two international-norm-making projects in this context: the Tallinn Manual on the International Law Applicable to Cyber Warfare and the UN Group of Governmental Experts on Information Security. Furthermore, the overarching question I’m grappling with in my doctoral research – how international law works? – also guides my cyber-specific research as a fellow at the H-CSRCL.
Q: What is the main core of your research?
A: I’m looking into the formation of the Tallinn Manual: the way it was crafted, and the reasons for doing so that way. This (critical) study is premised on a puzzle of positive international law, which I perceive to underlie the Tallinn Manual’s mission-statement. Let me explain. According to the legal experts who authored the Tallinn Manual, their task was to identify the lex lata of cyber warfare – namely, the Jus ad Bellum and Jus in Bello rules that already apply. Yet international law is formally silent on cyber warfare, and the relevant activities are veritably invisible. Hence the puzzle: without seeing law or war, how can outside observers of State conduct – including the experts who authored the Tallinn Manual – know what rules actually exist, let alone how these rules concretely apply?
One approach to this puzzle, I suggest, is to perceive the Tallinn Manual as a regulatory project – not of cyber warfare per se, but of the legal advice provided in this respect to the State’s executive branch. Accordingly, the Tallinn Manual doesn’t so much articulate positive legal rules as establish professional standards for operationalizing such rules. This, I argue, is how the Tallinn Manual should be explained and evaluated. To these ends, I proceed to analyze the process of making the Tallinn Manual – using a sociological frame of norm-construction and focusing on the norm-entrepreneur’s perspective – as recently proposed by Martha Finnemore and Duncan Hollis. I thus seek to expose and explain the strategic-design choices that structured the Tallinn Manual as a norm-making process, and hence as a normative product.
To be clear, this is a primarily conceptual endeavor. My research isn’t historical or otherwise empirical, as I’m not concerned with what certain individuals said, did, or thought. Nor do I purport to provide a factual or even hypothetical account of how the Tallinn Manual was conceived and came to be. Instead, by conceptualizing the Tallinn Manual as a regulatory project, I proffer a critical yet constructive understanding of the real-life choices inherent to (and reflected in) both process and product. The main point of this exercise is to look beyond some of the basic distinctions commonly used in describing and discussing international norm-making, i.e. codification versus progressive development, hard versus soft law, and deliberation versus negotiation.
Q: Why did you choose this specific subject? Did your professional or personal background lead you in this direction? Do you think that in this cyber age these issues are even more complex compared to other times in history? If so - in what ways?
A: For executive branch legal advisers in matters of international use of force, cyber warfare exemplifies a broader, structural problem: the growing imbalance between law’s formal and informal sources. The former is effectively stagnant, as multilateral treaty negotiations are stymied and States are reluctant to take clear positions on customary norms. At the same time, and for similar reasons, law’s informal sources are constantly expanding through the work of inter- and non-government organizations, as well as national and international courts. As a result, it’s becoming ever more difficult for legal advisers to generate a full and accurate account of positive law, which would then ground their substantive counsel and guide their professional risk assessment.
When concrete questions of international use of force are implicated by technological innovations, the above predicament is compounded by the inherent time-gap between law and technology. Thus, in its present state, formal international law is rapidly losing touch with the novel and intricate conduct/relations it supposedly governs. Yet legal advisers are nonetheless expected to come up with clear and constructive answers to the questions at hand. In so doing, legal adviser must not only attend to the here and now, but also consider the impact of further, impending developments on their current positions. And what’s more, the unique attributes of cyber warfare both exacerbate the pressures and raise the stakes involved in the international use of force.
Against this background, it appears that the Tallinn Manual attempts to straddle the line between international law’s formal and informal sources. Nominally, the Tallinn Manual constitutes a strictly informal source; being the work of legal scholars, it has the same normative standing as a text-book. Practically speaking, however, the Tallinn Manual is also the only law we have at the moment; it’s a highly useful resource, especially for legal advisers; and as mentioned, it claims the mantle of positive law – a claim buttressed by the various properties of the Tallinn Manual’s process and product. Hence, the Tallinn Manual is presumably capable of punching far above its weight – which is precisely why its perception as a regulatory project can yield valuable insights.
Q: After explaining the main core of your research, what do you think is the solution? What is the proper model for that? Is it applicable?
A: Diverse lessons can be drawn from a sociological analysis of the Tallinn Manual. First, in assessing the Tallinn Manual’s effectiveness as a regulatory project, the respective contribution (and costs) of different strategic-design choices could be examined using a goal-based approach. Second, in assessing the Tallinn Manual attractiveness, said choices’ consistency and coherency can now be clearly considered, alongside the choices’ legitimacy – based on criteria developed in the Global Administrative Law scholarship. Importantly, the resulting insights can then be applied to similar projects, past and present.
Q: What is your message to the public?
A: Whether I’m researching the practice and function of government lawyers or exploring the process and product of norm-entrepreneurs, I’m essentially studying people’s real-life choices. I’ve thus come to appreciate the peculiarity of choices: much as we fiercely guard our freedom to make them, we readily forego it. We do so, time and again, by denying or disregarding the fact that we have a choice – for instance, by designating our choices as inevitable, natural or immaterial. And when the existence of a choice is overlooked, it invariably follows that we remain oblivious to its making – to our role and responsibility in this respect. That, to me, is the greatest possible mistake: the fallacy of ignoring choice.
