The Role of National Position Papers in the Lawmaking Process of International Law in Cyberspace — A Legal Argumentation Theory Perspective

Abstract

The lawmaking process of international law in cyberspace is in deep water. As differences among parties deepen and multilateral processes such as the OEWG struggle to make headway, national position papers issued by states are having a more significant effect on the formation of international rules in cyberspace. The national position papers are distinct in content and form, which can be roughly categorized into two groups according to the concreteness of the rule claims, the abundance of references to sources of international law, and the volume of the papers. Position papers that are more concrete, more abundant in references and have a bigger volume affect the law-making process deeper. According to the theory of argumentation in international law, this is because this type of position paper better meets the requirement of normativity and concreteness, and is more responsive to the forum and legal contexts of legal arguments. China should study the theory of argumentation and improve the normativity and concreteness of position papers in China, to effectively participate in the law-making process in cyberspace.