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INTERNATIONAL REGULATION IN CYBER SPACE:
IS EFFECTIVE MUTUAL UNDERSTANDING POSSIBLE?
Vladimir Korovkin
Head of Digital Transformation Laboratory, Professor of Business
Practice at the Moscow School of Management at SKOLKOVO
(Moscow, Russia)1 E-mail: Vladimir_korovkin@skolkovo.ru
Abstract. The key challenge for effective legal regulation of cyberspace is its cross-border architec-
ture. This article aims to analyze contradictions between the main countries participating in the discus-
sions on the international regulation of cyberspace. As the probability of reaching a broad international
consensus in the field of cyberlaw is low in the foreseeable future, the regionalization of cyberspace, the
creation of alliances based on mutual trust between participants and coordinated views on the principles
of cyber-regulation are predicted.
Keywords: digitalization; cyberspace; cyber regulation; international cyber security.
For citation: Korovkin V. International regulation in cyber space: is effective mutual understanding
possible? / English transl. by Nikulichev M.Y. // Social Novelties and Social Sciences. – Moscow :
INION RAN, 2022. – N 1. – P. 18–32.
URL: https://sns-journal.ru/en/archive/ DOI: 10.31249/snsneng/2022.01.02
1 © Коровкин В., 2022
Korovkin V.
International regulation in cyber space: is effective mutual understanding possible?
19
Introduction
The concept of “cyberspace” appeared in science fiction in the early 1980s [Benedikt, 1991 a, p. 1],
but within a few years it was introduced into scientific circulation to describe the growing phenomenon of
global information exchange using computer-based devices. In 1990, the first international scientific con-
ference on cyberspace was held (at the University of Texas, Austin), a year later an urbanist, architect and
philosopher Michael Benedict edited and published a collection of papers from the conference. In his
keynote article in this collection, M. Benedict defined this phenomenon in the following way:
“Cyberspace is a globally networked, computer-sustained, computer-accessed, and computer-
generated, multi-dimensional, artificial, or ‘virtual’ reality… Cyberspace is a globally connected multi-
dimensional artificial or “virtual” reality supported by computers, accessible through computers and cre-
ated by computers… Cyberspace has a geography, a physics, a nature, and a rule of human law” (empha-
sis mine. – V. K.) [Benedikt, 1991b, p. 122–123].
It is noteworthy that the question of legislation in cyberspace arose at the dawn of the awareness of
a new phenomenon. Thirty years later, this issue remains largely unresolved despite numerous national
and international efforts. The key challenge for effective legal regulation of cyberspace is its fundamen-
tally global and cross-border nature. Consider the paradox: on the one hand, information networks that
form the basis of cyberspace appear to be a kind of global public good (similar to the World Ocean or the
atmosphere). On the other hand, they function and develop due to the efforts of predominantly private
actors, who are concentrated in a very small number of jurisdictions [Korovkin, 2019, p. 152]. This para-
dox makes national regulation of cyberspace relatively ineffective. In addition, the attitudes of several
individual sovereigns to cyberlaw define de facto international legal practice.
This situation has caused and continues to cause concern for countries. Russia and China have been
the most explicit in their views, and over the past two decades they have been promoting the idea of creat-
ing an international regulation of cyberspace in the form of a binding convention. This idea did not find
support in the USA and the countries of the European Union. The situation has largely reached a stale-
mate [Kerttunen, Tikk, 2018], especially after the general geopolitical situation aggravated in the mid-
2010s. In 2017, an intergovernmental group of experts under the auspices of the UN failed to issue a con-
sensus report at the end of the meeting, and representatives of Russia and the United States exchanged
harsh statements, effectively denying each other the status of bona fide actors. The immediate cause for
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20
the clash was the discussion around a principled approach to cyber warfare1. However, disagreements be-
tween countries run much deeper.
Typical remarks from mutual official statements show the depth of mutual distrust. According to
the Russian special envoy, reaching a consensus is hampered by: “...certain countries that seek to impose
their rules of the game in the information space on the whole world… Based on their technological
achievements, they are trying to enforce the “rule of the gun” in the information space” [Response of the
Special …, 2017]. In turn, the US Special Representative stated: “I am coming to the unfortunate conclu-
sion that those who are unwilling to affirm the applicability of these international legal rules and princi-
ples [to cyber warfare] believe their States are free to act in or through cyberspace to achieve their politi-
cal ends with no limits or constraints on their actions”. [Department of State, 2017].
In many respects working on the international legislation is a more complex process than national
lawmaking. International law can only be established by consensus of all parties involved; countries have
the option not to accede, with the decision to accede (ratification by authorized national authorities, usu-
ally parliaments) almost always being the result of a complex internal political process. The actors within
the international space perceive themselves as being in a difficult competitive situation with unequal start-
ing positions and for this reason: 1) they are looking for ways to strengthen their standpoint and 2) they
assume that other participants in the process act in a similar way. This leads to a discrepancy in the de-
clared and actually pursued goals. Each actor may also embark on a strategy of formally acceding with no
intention of fulfilling the obligations assumed. Such a strategy can give individual national actors an in-
ternational competitive advantage (the “tragedy of the commons” proposed by the British economist Wil-
liam Forster Lloyd in 1833 [Lloyd, 1980]). The ability of the international community to rule out such
strategies is limited; as a result, the overall process is characterized by a high degree of mutual distrust.
The balance is maintained due to the awareness that the potential significant international destabilization
may have more dangerous consequences for individual actors than following the agreed rules. However,
in general, modern international law is not as comprehensive as national legislation. It is always possible
to leave one or another area unregulated, which is preferable to joining legislation that violates the na-
tional interests.
The successfully adopted and enforceable international treaties2 resulted in (1) harmonization of na-
tional legislation in areas with long established practices (for example, commercial law); (2) establishing
1 Russia insists that cyberspace should be demilitarized, and cyber warfare excluded with the help of international law;
the position of the United States is that in one form or another aggressive actions in cyberspace are an accomplished fact and
the task of international law should be to create rules governing military operations in cyberspace in accordance with estab-
lished military and humanitarian law. The corresponding statements were made by the special envoy of the Russian Foreign
Ministry Andrey Krutskikh [Response of the Special …, 2017] and the representative of the US State Department Michel
Markoff [Explanation of Position …, 2017].
2 See the list of key UN-sponsored treaties: [International Law and Justice // United Nations. – B/d. – URL:
https://www.un.org/en/global-issues/international-law-and-justice (date of access 18.07.2022)].
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norms against actions with potentially catastrophic humanitarian consequences (laws on the conduct of
warfare, nuclear test ban treaties, ban on chemical and biological weapons1), or (3) having relatively little
importance to national interests (conventions on outer space and Antarctica2). The international Law of
the Sea definitely stands apart. It was created in an unusual situation, when countries with a relatively
small overall influence in the international space turned out to be, due to geography, the owners of the
most important resource – the sea straits, which gave them a fairly strong negotiating position.
Cyberspace is inherently different from all of those cases. It was established relatively recently and
is in the process of constant flux, which excludes recourse to established customs and practices. The hu-
manitarian consequences of abuses in cyberspace – while significant – do not seem comparable to nu-
clear, chemical or biological conflict. At the same time, cyberspace has become one of the key drivers of
social, economic and political development in almost all countries of the world, and its importance is con-
stantly growing. The architecture of the current cyberspace gives a significant advantage to a limited
group of countries (if not one country). The “minor” participants in the process do not have and are not
expected to have any “balancing” opportunities to strengthen their position. Major actor countries can
greatly benefit from non-adherence or formal but non-enforced adherence to regulation3. As a result, cre-
ating an effective, enforceable, coherent regulation of cyberspace is a task of unprecedented legal, techni-
cal and, above all, political complexity.
The world legal community perceives these complexities differently and the general legal discus-
sion mostly focuses on two topics: “Is international law really a law?4” and “Is international law really
international?” On the first issue, a rather radical point of view was expressed in 1994 by Shirley Scott,
who noted that “The dominant post-war paradigm in international relations has been realism, which dis-
misses international law as being virtually irrelevant to matters of ‘high’ politics.” In her opinion, the lat-
ter is generally based on the concept of “power” [Scott, 1994]. The discussion on the second issue is cov-
ered, for example, in the book [Roberts, 2017].
Indeed, it must be taken into account that international legislation in any case does not occur “from
scratch” but is embedded in one or another historical context. The Internet emerged as a global phenome-
non almost at the same time as the end of the Cold War and the collapse of the “socialist camp”. The
Internet developed in parallel with the complex political processes of the 1990s-2000s. For that reason,
1 The participants in the relevant conventions continued to suspect other participants of violating agreements, a number
of violations of the chemical weapons convention were proven (for example, the Iran-Iraq war of 1980-1988) without serious
immediate consequences for the violators.
2 In the latter case, joining the convention does not prevent countries such as Argentina and Chile from officially con-
sidering part of Antarctica as sovereign territory.
3 For example, China ignored the Budapest Convention on Cybercrime, which criminalized certain violations in the
field of intellectual property; to resolve the situation, the United States had to sign a separate bilateral agreement in 2015.
4 “Is international law really a law?”: the conceptual fields of the English term “law” and Russian “rights” and “law” in-
tersect in a rather complicated way.
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the Cold War ideologemes continue to largely determine the views of the key global cyberspace stake-
holders on the interests, motives and strategies of opponents.
Differences in approaches between the main global cyberspace stakeholder nations have repeatedly
become the subject of analysis both in the domestic [Zinov’eva, 2016; Zaharov, 2018] and in foreign lit-
erature [Kerttunen, Tikk, 2018]. However, this analysis, as a rule, was limited to situational and technical
study of disagreements without clarifying their underlying causes. The purpose of this article is to analyze
the positions of the key countries participating in discussions on the issues of international regulation of
cyberspace in the context of the current practice of private and public conflict resolution. The results of
the study help to gain a deeper understanding of the opposing positions and formulate more realistic ex-
pectations regarding the possibilities for reaching a consensus in the field of international cyber regula-
tion.
Method of analysis
First of all, this task presupposes the analysis of the key documents describing the positions of the
parties in the more than 20-year-old discussion on international regulation. It is fundamentally important
to place these documents into the broader context of views on public administration. Any approach to
regulation must implicitly or explicitly take into account the prioritization between private and public in-
terests in the field of international information networks and a possible action plan that creates an accept-
able balance between these interests.
The official position of Russia on the issues of international cyber regulation was formulated in the
draft Convention on International Information Security submitted to the UN in 2011 [Konvencija ob obe-
spechenii …, 2011], which summed up a series of prior initiatives in the UN format. Although formally
the project was submitted by a group of countries, which also includes such an important global cyber-
space stakeholder as China, the document was positioned as an initiative of the Russian Federation and
was perceived in this capacity by the international expert community [Kerttunen, Tikk, 2018].
The United States is the main opponent of the Russian initiative in the UN [Demidov, 20131; Huz-
hina, 2015; Zaharov, 2018; Prakesh and Baruah, 2014]. The like-minded powers include Great Britain
and the Netherlands [Kerttunen, Tikk, 2018, p. 24]. The opposition strives not to propose a comparable
alternative document (since the 2001 Budapest Convention on Cybercrime2 at the Council of Europe sup-
1 In particular, it was correctly noted that there are significant discrepancies between the concept of “information secu-
rity” contained in the document, which is very broad in nature, and many common interpretations of “cybersecurity”, which is
reduced to the functioning of computer network infrastructure. According to the author, “the competition of Russia and its al-
lies (PRC and other SCO states) with Western states in terms of establishing at the global level one or another understanding of
the IT role in the context of international security is acquiring the features of an ideological confrontation” [Demidov, 2013, p.
137].
2 Despite the fact that the Convention was developed by the Council of Europe, it is open for all countries. Of the major
non-European countries, the United States, Canada, Australia, Japan and Israel have ratified the convention so far.
Korovkin V.
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23
ported by the Western countries and allies is much more restrictive1), but to reject the very idea of an ef-
fective global cyber convention.
The 2011 International Cyber Strategy [White House, 2011] is the official document describing key
US approaches to international cyber regulation. This paper outlines the Obama administration’s views on
the role of cyberspace in social and economic development at the national and global level, as well as the
goals and principles of US policy in relation to cyberspace. In 2018, the Donald Trump administration
adopted the “National Cyberspace Strategy”, which focuses more the homeland, but also refers to the in-
ternational context. Additionally, the position of the United States and its supporters is clarified by the
statements of officials made on the platforms of international organizations or addressed to the media.
An alternative “Western” approach to global cyberspace is represented by France’s “International
Strategy for Digital Space” [Ministere de l’Europe, 2018]. This country is not considered to be in the im-
mediate circle of supporters of the United States, and its strategy expresses concern about American digi-
tal hegemony. It is also important that the French “continental” legal culture is traditionally opposed to
Anglo-American customary law.
Finally, the position of one of the main stakeholders in the global cyberspace, China, is expressed in
the “National Strategy for Cooperation in Cyberspace” adopted in 2017 [Xinhua …, 2017].
An additional context for the study is provided by international cyber regulation projects created by
individuals and organizations mainly on the “Western” side of the digital space, as well as a number of
initiatives by large international corporations designed to synchronize approaches to secure digital sys-
tems [Stadnik, 2018]. Of particular interest are two editions of the so-called “Tallinn Manual to Interna-
tional Law Applicable to Cyber Warfare” (in the second edition, the word “cyber warfare” was replaced
by “cyber operations” [Schmitt, 2013; Schmitt, 2017]. These papers are academic studies representing the
opinion of a group of eminent international jurists on the applicability of existing rules of international
law to military operations in cyberspace.
Our study needs a tool for a comprehensive comparative analysis of the texts listed above. Unfortu-
nately, the comparative legal research has no agreement on the kind of methodology to follow [Van
Hoecke, 2015]. The most common so-called functional method does not reveal differences between dif-
ferent legal systems in understanding what is or is not a problem. In particular, the functional method, if
applied to international cyber regulation projects, gives the impression of disagreement over proposed
solutions where there is a much deeper conflict of ideologies and legal cultures.
A possible solution was proposed by G. Frankenberg, who studied national constitutions using the
comparative analysis. His “constitutional architecture” model distinguishes four levels: rights and princi-
1 Russia has been a consistent critic of the Budapest Convention, believing that, on the one hand, it is not sufficiently
comprehensive in describing information threats, and on the other hand, it does not respect the national sovereignty of the par-
ticipants [RF podderzhivaet razrabotku …, 2014].
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ples, values and obligations, organizational arrangements, and, finally, rules for constitutional change and
interpretation [Frankenberg, 2006]. Since international cyber regulation can be seen as an attempt to cre-
ate a “constitution for global cyberspace”, this model is well suited for the purposes of this analysis. The
first two levels are of greatest interest: rights and principles, values and duties.
Taking into account the fact that, from a practical point of view, we are interested, first of all, in the
possibilities of strengthening the position of Russia in the field of international cyber regulation, the
analysis must focus on the draft convention on information security proposed by the UN in 2011 and the
positions of other countries in relation to it.
Analysis results
The Frankenberg model makes it possible to identify and formalize significant differences in the le-
gal approaches of the leading global cyberspace stakeholder countries at the levels of principles and values.
Principles. The Russian draft Convention on Information Security contains two key principles:
(1) the need for a separate comprehensive regulation of global information security issues within a single
document and (2) the organization of global cyberspace as a set of national cyberspaces managed by
states parties [Konvencija ob obespechenii …, 2011, p. 2].
The first principle is also shared by some authors of alternative concepts of cyber regulation. For
example, the draft treaty by S. Scholberg has the following introduction:
“Cyberspace, as the fifth common domain – after land, sea, air and outer space, is in great need for
coordination, cooperation and legal measures among all nations. A cyberspace treaty or a set of
treaties at the United Nations level, including cybersecurity, cybercrime and other cyberthreats,
should be the framework for peace, justice and security in cyberspace” [Schjolberg, Ghernaouti-
Hélie, 2011, p. i].
However, the “US and supporters” group does not agree with this principle, as can be judged from
the opinion expressed by British Foreign Secretary William Hague [Foreign and Commonwealth Office,
2012]. As an alternative, W. Haig proposed seven principles of cooperation between states, businesses
and organizations in cyberspace: 1) The need for governments to act proportionately in cyberspace and in
accordance with international law; 2) The need for everyone to have the ability to access cyberspace, in-
cluding the skills, technology, confidence and opportunity to do so; 3) The need for users of cyberspace to
show tolerance and respect for diversity of language, culture and ideas; 4) Ensuring that cyberspace re-
mains open to innovation and the free flow of ideas, information and expression; 5) The need to respect
individual rights of privacy and to provide proper protection to intellectual property; 6) The need for us
all to work together collectively to tackle the threat from criminals acting online; 7) The promotion of a
competitive environment which ensures a fair return on investment in networks, services and content
[Foreign and Commonwealth Office, 2012].
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25
Thus, there is a discrepancy between the desire to create a comprehensive, formalized legal docu-
ment and the proposal to act on the basis of a rather limited set of rules, with the language closer to a po-
litical declaration than to lawmaking. Here it is easy to see the general contradiction between the “conti-
nental” legal tradition, based on legal codes, and the Anglo-American “common law”, traditionally
skeptical of codification.
The Russian concept was created within the legal culture, which believes that codification is “the
perfect form for developing legislation”, and that it creates “a solid framework on which all the legal mat-
ter of a particular branch of ... legislation rests” [Rahmanina, 2008, p. 32, 36]. The common law position
can be expressed as follows: “the existence of a code is neither a necessary nor a sufficient condition for
achieving these principles [of liberty, equality and justice]” [Canale, 2009].
For a while, a number of legal scholars in the United States denied in principle the need for a sepa-
rate regulation for the Internet, pointing out that almost all problems related to it could be resolved within
the framework of common law. The so-called “Horse Law” discussion was conducted in absentia be-
tween F. Eastbrook [Easterbrook, 1996] and L. Lessig [Lessig, 1999] in the late 1990s. The position of
the former was that a separate cyber law makes no more sense than a separate “Horse Law”, since all the
necessary rules (ownership, sale, traffic rules, etc.) are already contained in a general law. The latter
pointed out that cyberspace is a more complex phenomenon, its separate regulation is necessary and,
moreover, is actually already being carried out from within cyberspace itself (see below). By 2001, Les-
sig’s point of view became dominant, the United States actively supported the Budapest Convention on
Cybercrime. However, the discussion itself, which took place on the platforms of leading legal forums
and journals, shows that special codification is not a legal instinct within the Anglo-American tradition.
The US insists that the amount of special regulation carried out under the Budapest Convention is
quite sufficient and does not require significant expansion. On the other hand, the authors of the Tallinn
Manuals generally do a convincing job of interpreting existing international norms, including humanitar-
ian law and the laws of war, as they apply to military operations in cyberspace.
In 2011, the USA finally formulated its legal position in relation to international cyberspace: “The
development of norms for state conduct in cyberspace does not require a reinvention of customary inter-
national law, nor does it render existing international norms obsolete … unique attributes of networked
technology require additional work to clarify how these norms apply and what additional understandings
might be necessary to supplement them” [White House, 2011, p. 9].
The second principle of the Russian approach to international information security (the construction
of global cyberspace through national ones) is also supported by a number of foreign authors. In particu-
lar, it is shared in the S. Scholberg project, largely based on his experience of cooperation with the Inter-
national Telegraph Union (ITU), which is trying to become the central international agency for managing
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26
the global Internet (similar to the existing practice in the field of telegraph and telephone communica-
tions).
However, this principle is in conflict with the historically established architecture of the Internet,
which was conceived as an open multi-stakeholder space in which sovereigns are present on an equal
footing with all participants1. The formation of cyberspace took place within the framework of a certain
ideology, the most striking expression of which was the “Declaration of Independence of Cyberspace” by
an American poet and political activist John Perry Barlow:
“I declare the global social space we are building to be naturally independent of the tyrannies you
seek to impose on us. You have no moral right to rule us, nor do you possess any methods of enforcement
we have true reason to fear. Governments derive their just powers from the consent of the governed. You
have neither solicited nor received ours. We did not invite you... Cyberspace does not lie within your bor-
ders. Do not think that you can build it… You cannot. It is an act of nature, and it grows itself through our
collective actions” [Barlow, 1996, p. 1].
For all the declarative nature of this manifesto, it contains important indications that the architecture
(or nature) of the digital space does indeed create almost insurmountable obstacles to its regulation by
governments. Cyber-anarchism has deep roots in the hacker movement that developed in the late 1970s2.
In the book by Steven Levy “Hackers: Heroes of the Computer Revolution”, it is noted that many promi-
nent computer activists of the time transferred the ideas of the 1960s hippies into cyberspace [Levy,
1984]3.
As Lessig points out, architecture is one of the modalities of regulation (along with law, society,
and market). So, the moment the Internet caught the attention of government regulators, it was already
effectively regulated from within. Thus, in order to radically change the modality of cyberspace regula-
tion, it is necessary, first of all, to restructure its architecture. According to Lessig, “… while particular
versions of cyberspace do resist effective regulation, it does not follow that every version of cyberspace
does so as well. Or alternatively, there are versions of cyberspace where behavior can be regulated, and
the government can take steps to increase this regulability” [Lessig, 1999, p. 506].
1 Allocation of the domain .gov for government organizations put them on a par with educational institutions -.edu –
and commercial companies -. com. The formal presence of country domains does not create sufficient grounds for national
sovereignty (contrary to the opinion of Uerpmann-Wittzack [Uerpmann-Wittzack, 2010, p. 1256]), since a significant number
of leading Internet resources are registered in cross-country domains, the number of which has been significantly expanded
since 2013.
2 At that time the word “hacker” did not have negative connotations and was used for programmers who could solve
non-standard tasks related to the organization of computer networks in an underdeveloped infrastructure. Although some of the
hackers used unauthorized access to telephone networks and had a fairly loose attitude to intellectual property, their actions did
not have the ultimate goal of causing damage.
3 To some extent, the continuation of these ideas can be traced in the movement for the creation of decentralized
cryptocurrencies, based on the manifesto of Satoshi Nakamoto (pseudonym).
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27
Such ideas have actually been implemented in quite numerous projects on creating a “managed na-
tional Internet”. First of all, this is the “Great Firewall” of China, as well as systems in Iran, Turkmeni-
stan, etc., not to mention the numerous cases of temporary measures to restrict the Internet attempted by
governments of different countries. The problem is that such restrictions inevitably put national users in
unequal competitive conditions on the global market, which is sensitive for business and educational or-
ganizations. Well-developed and successful closed national networks, like the French Minitel, at some
point lost market competition to the Internet precisely because of its functional superiority [Orlovskij,
Korovkin, 2020].
The “state-centric” approach of the Russian concept seems to be a weakness even to those analysts
who generally sympathize with it. For instance, O. Demidov points out that “the conceptual logic of the
Convention does not allow the document to include the subjects that, in general, fill the global communi-
cations system with content and without whom information exchange is impossible” [Demidov, 2013,
p. 140]. However, expanding the scope of the Convention to reflect the multi-stakeholder model of cyber-
space governance is impossible from a legal point of view. This would actually endow the subjects of
domestic law from different states with international legal subjectivity [Pazjuk, 2012, p. 238]. For this
reason, the implementation of the Russian approach to global cyberspace requires the de facto nationali-
zation of a number of institutions that are part and parcel of the Internet architecture.
The Russian legal approach to nationalization states: “... the institution of nationalization is neces-
sary to ensure the progressive economic development of the country ... allows to overcome the individual-
ism of participants in civil law relations and to promote the idea of public interest (general benefit, com-
mon good, public interest)” [Shhennikova, 2012]1. In contrast, the modern Anglo-American legal school
actually refuses to consider nationalization as an institution, considering it possible only as an extremely
exceptional temporary measure (economic emergency) [Davidson, 2014]. Thus, the architectural restruc-
turing of the global cyberspace, necessary for its harmonization as a set of national cyberspaces, seems
unrealistic at present.
Values. In their simplest terms, values define the degree of importance of things, events, or actions,
and thus affect the complex collective decision-making process. The value system is inherent to any cul-
ture and can be reconstructed from the analysis of extended texts by isolating the central concepts.
Such an analysis of the Russian draft Convention on International Information Security allows us to
single out the following concepts that make up the value framework of the document [Konvencija ob obe-
spechenii …, 2011]:
1 At the same time, however, nationalization in Russia is called a dormant institution due to the lack of necessary legis-
lation, the law on nationalization was developed over a number of years, but was never adopted. In particular, in November
2019, the State Duma by a majority of votes rejected the draft law proposed by the Communist Party of the Russian Federation
[Gosduma otkazalas’ …, 2019].
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28
state sovereignty;
security and stability;
traditionalism.
According to experts, the proposed project is largely a continuation of the ideas contained in Rus-
sian internal strategic documents as applied to international law. And the very value structure “sover-
eignty – stability – traditionalism” is a transfer to cyberspace of the “sovereign democracy” ideology for-
mulated in 2006 by V. Surkov (then Deputy Head of the Administration of the President of the Russian
Federation), which gradually turned into a dominant ideologeme, extremely rarely contested in domestic
public mainstream.
Taken separately, the above values are shared by many participants in the global cyberspace. For
example, the Chinese “Cyberspace Cooperation Strategy” puts sovereignty in second place after “peace”
in a list of fundamental principles, and “protection of sovereignty and security” in first place among the
goals. The French strategy also gives homage to sovereignty and pays significant attention to the preser-
vation of cultural identity (primarily through the promotion of francophone content on the Internet). The
importance of “security” as such is at the heart of all discussions on cyber regulation. However, none of
the major countries-stakeholders of the global Internet operates with the described value structure, where
the sovereignty of the state, stability and tradition form a closely related group of concepts.
The “US and supporters” approach is based on a drastically different value construct. This does not
mean that the values of the Russian concept are openly challenged. They are simply given low priority
relative to other value concepts. The 2011 U.S. International Cyber Strategy opens with an introduction
by Barack Obama who argues that “cybersecurity is not an end unto itself; it is instead an obligation that
our governments and societies must take on willingly, to ensure that innovation continues to flourish,
drive markets and improve lives” [White House, 2011].
Dynamism – development and innovation – stands much higher in the values of the Western world,
as reflected in the fourth principle of William Haig or in the following phrase from the American Interna-
tional Strategy for Cyberspace: “The United States will pursue an international cyberspace policy that
empowers the innovation that drives our economy and improves lives here and abroad” [White House,
2011, p. 4].
The situation is similar with statehood as the basis for sovereignty. The involvement of the state
makes sense only when and to the extent that the multistakeholder model is ineffective in achieving the
public good. As long as Western governments do not observe the irreparable failures stemming from the
current model of cyberspace governance, they see no reason to intervene. The absence of the state at the
center of the value model almost automatically eliminates the importance of sovereignty as a concept.
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29
The main benefit of the “Western” approach is the idea of equality of all cyberspace participants,
with special respect given to the commercial and academic players who created cyberspace. This mani-
fests both the value component stemming from the American constitutional right to “pursuit of happi-
ness” and the historically established US messianism, which is closely associated with the values of free-
dom and openness. “Governments that respect the rights of their citizens have no reason to fear a free
Internet”1 [Pozner, 2011]. According to W. Haig, “There is the growing divergence of opinion and action
between those countries seeking an open future for the Internet and those who are inching down the path
of state control. We believe that it is not simply enough to address economic and security threats on the
Internet without also taking steps to preserve the openness and freedom which is the root of its [Internet]
success.” [Foreign & Commonwealth Office, 2012].
The values of openness and freedom are also fundamental to the French cyber strategy.
An alternative value framework for the approach to cyber regulation put forward by the USA and
like-minded supporters can be formulated as “dynamism (innovation) – equality of all participants (up to
scaling down the role of the state) – openness (architectural and content-oriented)”. It is easy to see that it
contradicts the values of the Russian concept. However, it is wrong to consider this contradiction in a
purely instrumental perspective, that is, to assume that it is only a negotiating position. Getting back to
the Schwartz’s definition, values are trans-situational and define the principles of life: Western represen-
tatives are genuinely incapable to operate within a different picture of the world. In turn, they, too, erro-
neously treat the Russian concept as a tactical goal, not realizing the deep value structure underlying it.
Typology of approaches to cyber regulation. The results obtained are consistent with the existing
typologies of relations between the state and society. Thus, in the early 2000s, Spencer, Murtha and Lin-
way applied the classification proposed by R.L. Jepperson [Jepperson, 2000]. He singled out two dimen-
sions: the type of collective agency structure (how “statist” society is) and the type of organization of so-
ciety (how “corporate” it is), which formed four possible quadrants: 1) social-corporatist state;
2) corporatist state; 3) liberal pluralist state; 4) state nation [Spencer, Murtha, Lenway, 2005, p. 326].
In this typology, the authors defined the USA as a liberal-pluralistic state. Russia (and other non-
Western countries, with the exception of Japan) was not considered by them, but it clearly fits the descrip-
tion of the “state nation” type. These two types are not diametrically opposed. They are similar in terms
of the organization of society – the absence of strong non-state institutions – “corporations” in the broad
sense of the word (including various professional associations, academic communities, etc.).
1 Of course, this vision is not shared in many other parts of the world. According to Zakharov, “the United States uses
threats and bribery to impose their own understanding of democracy and neoliberal economic policy” [Zakarov, 2018, p. 133],
this statement is partly true, but again it ascribes an instrumental character (maintaining technical superiority) to value-driven
actions.
Korovkin V.
International regulation in cyber space: is effective mutual understanding possible?
30
A slightly different typology can be proposed if we use the role of the state in economic (the state-
organizer and the state-regulator of the economy) and political (the state is an ideological leader and a de-
ideologized state) life as factors [Korovkin, 2018]. Within this classification, Russia is relegated to the
category of “superstates” (leading role in the economy and politics), and the United States and its sup-
porters – in the strictly opposite category of “state as a service”.
In both cases, it can be seen that the divergence of positions on international cyber regulation is
based on deep differences in views on the role of the state, its mandate of action and the ways in which
the state and various public institutions, including business, interact.
Conclusion
G. Frankenberg singled out four types of constitution: contract, manifesto, program and law
[Frankenberg, 2006]. Effective international law is possible only as a contract, since it requires the con-
sent of all parties, which can only be obtained if they have sufficiently weighty benefits. If the zone of
agreement is too narrow, the contract degenerates into a manifesto – formally supported by all partici-
pants, but having no practical consequences in coordinating their actions. For this reason, developing in-
ternational legislation is an extremely complex process. Differences in the positions of the parties, of
course, are often instrumental in nature: the desire to negotiate the most advantageous competitive posi-
tion in global markets to the nation. However, these discrepancies may also have a deeper foundation: the
difference between legal cultures (and cultures in the broad sense of the word), expressed in the incom-
patibility of the principles and values of lawmaking.
Such incompatibility is fully evident in the Russian and US official materials on international cyber
regulation. In the future, it is advisable to supplement this study with the analysis of positions of other
important stakeholder countries in the global cyberspace, such as Japan or India.
We must admit that the existing cultural differences make it unlikely to reach a broad international
consensus on cyberlaw in the foreseeable future. The multistakeholder architecture of cyberspace presents
a particular difficulty1. A likely scenario is the regionalization of cyberspace, with creating alliances
based on the mutual trust of the participants and the unity of their views on the key principles of cyber
regulation. Examples of such alliances are the SCO declaration, the African Union data protection con-
vention and the EU personal data protection legislation. To some extent, global cyberspace is turning into
a “patchwork quilt” of norms and regulations that hinders the actions of conscientious actors (state and
non-state) but opens numerous legal gaps and loopholes to unscrupulous ones.
1 In the history of international law, there is already an example of the failed attempt to regulate a multistakeholder en-
vironment – the long-discussed UN Convention on Transnational Companies was not eventually adopted, the issue gradually
left the agenda of the organization [Hedley, 1999].
Korovkin V.
International regulation in cyber space: is effective mutual understanding possible?
31
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