Scenario 09: Economic cyber espionage

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Private entities become targets of economic cyber espionage by or on behalf of a State. Under what circumstances can cyber espionage be attributed to the State and the latter be held responsible under international law? What measures, if any, can the victim State lawfully take in response?

Scenarios[edit | edit source]

Keywords[edit | edit source]

Advanced persistent threat, economic cyber espionage, sovereignty, diplomatic and consular law, premises of the mission, persona non grata, countermeasures

Facts[edit | edit source]

[F1] State A learns that several hi-tech companies incorporated and having headquarters in its territory are subject to an advanced persistent threat (APT) operation by unknown actors. The goal of the APT operation is to obtain trade secrets and other intellectual property from the companies’ computers and networks. In the course of the operation, the unknown actors exfiltrated hundreds of terabytes of technical data about the companies’ products and services, emails of the companies’ employees, internal memos, and other documents. After a meticulous investigation that lasts for over a year, State A determines that the operation was conducted by a military unit subordinated to State B’s Armed Forces' General Staff; and that, additionally, one diplomat at State B’s embassy accredited to State A and physically located in State A also took part in the operation under authorization of State B.

[F2] State A decides to declare several diplomats of State B in State A as personae non gratae. As stated, one of them was allegedly directly involved in the cyber espionage operation, while others are merely suspected of other activities against the interests of State A that are unrelated to the APT operation. An insider in one of the victim companies, who is a State B national and who was found to be working for State B’s APT operation, is indicted and taken into custody. State A also indicts several members of State B’s military unit who were reportedly involved in it. State B denies all of State A's allegations and, in turn, declares the same number of State A diplomats in State B as personae non gratae.

[F3] Both State A and State B are parties to the Vienna Convention on Diplomatic Relations (VCDR).[1]

Examples[edit | edit source]

Legal analysis[edit | edit source]

For a general overview of the structure of analysis in this section, see Note on the structure of articles.

[L1] The legal analysis briefly deals with attribution, then discusses whether State B breached any of its potentially relevant international obligations (illegal use of the premises of the mission, violation of State A’s sovereignty, and a violation of a supposed rule forbidding economic cyber espionage), and finally closes with a consideration of State A’s options for responding (specific remedies in diplomatic law; countermeasures).

Attribution to State B[edit | edit source]

State organs and persons and entities in exercise of governmental authority
The following types of conduct of State organs and persons and entities in exercise of governmental authority are attributable to a State:
  1. The conduct of any of the organs of that State, "whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State";[2]
  2. The conduct of "a person or entity which is not an organ of the State […] but which is empowered by the law of that State to exercise elements of the governmental authority, […] provided the person or entity is acting in that capacity in the particular instance";[3]
  3. The conduct of an organ of another State placed at the disposal of the State in question, if "the organ is acting in the exercise of elements of the governmental authority" of the latter State.[4]

Such conduct is attributable to the State even if the organ, person or entity acting in that capacity "exceeds its authority or contravenes instructions" (acts ultra vires).[5]

[L2] Given that participation of a State B military unit and an embassy diplomat in the operation has been established, the APT operation can verifiably be attributed to State B. This is because both the military unit and the diplomat are State organs and as such, their conduct is attributable to State B.[6]

Non-State actors
Activities of non-State actors (groups and individuals) are generally not attributable to States. However, such conduct can be attributable to a State in particular if the actor is:
  1. "in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct";[7]

Each of the three criteria entails a form of subordination between the non-State actor and the potentially responsible State.[8] Regarding the criterion of control, there is a debate on the degree of control required for the attribution of the conduct to the State, as different tests have been developed.

On the one hand, the ICJ has affirmed that the exercise of “effective control” is necessary,[9] which entails that the State is able to control the beginning of the relevant operations, the way they are carried out, and their end.[10] This position has been expressly followed by some States in the realm of cyber operations, including Brazil,[11] the Netherlands[12] and Norway.[13]

On the other hand, a less restrictive approach has been developed by the ICTY,[14] and followed by the ICRC,[15] under the “overall control” test, which requires the State in question (i) to provide the non-State entity with financial and training assistance, military equipment and/or operational support, and (ii) to participate in the organization, co-ordination or planning of operations of the entity in question.[16] Nevertheless, the proponents of this test limit it to organized groups, meaning that the effective control test remains applicable for the conduct of private individuals, or unorganized groups.[17]

  2. "in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority";[18]
  3. "an insurrectional movement which becomes the new Government of a State";[19] or
  4. "a movement, insurrectional or other, which succeeds in establishing a new State in part of the territory of a pre-existing State or in a territory under its administration".[20]

Additionally,

  2. the conduct of a non-State actor is attributable to a State "if and to the extent that the State acknowledges and adopts the conduct in question as its own".[21]

[L3] The legal qualification of the insider’s conduct is less clear. If the fact of “working for State B” entailed an ongoing relationship of subordination reaching to the level of direction or control,[22] then the relevant conduct may also be attributed to State B.[23] Absent subordination, the degree of instruction and control actually exercised over the insider will determine whether attribution can be made to the State, although the facts may be difficult to establish in that case.

Breach of an international obligation by State B[edit | edit source]

Violation of diplomatic law by misusing the premises of the mission[edit | edit source]

Premises of the mission
Article 41 of the Vienna Convention on Diplomatic Relations (VCDR) provides that “it is the duty of all persons enjoying [privileges and immunities according to the Convention] to respect the laws and regulations of the receiving State”.[24] In addition, it prohibits the premises of the mission from being used “in any manner incompatible with the functions of the mission” as these are laid down by the VCDR or in any other relevant international legal rules.[25] In this regard, the VCDR specifically notes that legitimate functions of the mission include “[a]scertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State”.[26] This formulation thus legitimates the gathering of intelligence as long as it is conducted in a manner compatible with the domestic law of the receiving State. By contrast, most States criminalize espionage, including economic espionage, under their domestic law,[27] and therefore conduct that falls under such domestic prohibitions will also constitute a violation of Article 41 of the VCDR.[28]

[L4] Depending on the extent to which State B's diplomat exceeded the legitimate functions of the mission of State A, the latter may claim that the operations would have amounted also to a violation of State B’s international obligations towards it according to the VCDR.[29]

[L5] The cyber operations conducted by State B’s diplomat from the premises of State B’s embassy and utilizing its cyber infrastructure most likely violated the domestic law of State A, which can be expected to prohibit foreign espionage in its domestic criminal law as most other States do.

Obligation to respect the sovereignty of other States[edit | edit source]

Sovereignty
Sovereignty is a core principle of international law. According to a widely accepted definition of the term in the 1928 Island of Palmas arbitral award,

[s]overeignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.[30]

Multiple declarations by the UN,[31] the African Union,[32] the European Union,[33] NATO,[34] OSCE,[35] and individual States have confirmed that international law applies in cyberspace. Accordingly, so too does the principle of sovereignty.[36] However, there is some debate as to whether this principle operates as a standalone rule of international law, the breach of which gives rise to state responsibility.
  • For the proponents of this view, the prohibition on violating the sovereignty of other States is a substantive primary rule of international law, the breach of which is an internationally wrongful act. This view was unanimously accepted by the experts who prepared the Tallinn Manual 2.0.[37] It has also been adopted by several States including Austria,[38] Brazil, [39] Canada,[40] the Czech Republic,[41] Estonia,[42] Finland,[43] France,[44] Germany,[45] Iran,[46] Italy,[47] Japan,[48] the Netherlands,[49] New Zealand,[50] Norway,[51] Romania[52] and Sweden.[53]
  • By contrast, the opposing view is that sovereignty is a principle of international law that may guide State interactions, but it does not amount to a standalone primary rule.[54] This view has been adopted by one State, the United Kingdom,[55] and has been partially endorsed by the U.S. Department of Defense General Counsel.[56] By this approach, cyber operations cannot violate sovereignty as a rule of international law, although they may constitute prohibited intervention, use of force, or other internationally wrongful acts.

The remainder of this section proceeds on the basis of the former “sovereignty-as-rule” approach. Those espousing the latter “sovereignty-as-principle” approach should refer to other relevant sections of the legal analysis (such as that on the prohibition of intervention or use of force).

It is understood that sovereignty has both an internal and an external component.[57] In the cyber context, the “internal” facet of sovereignty entails that “[a] State enjoys sovereign authority with regard to the cyber infrastructure, persons, and cyber activities located within its territory, subject to its international legal obligations.”[58][59] This encompasses both private and public infrastructure.[60] The external component entails that States are “free to conduct cyber activities in [their] international relations”, subject to their international law obligations.[61]

As a general rule, each State must respect the sovereignty of other States.[62]However, within the cyber realm – and particularly regarding remote cyber operations – there is still no agreement on the criteria[63] and the required threshold[64] to qualify an operation as a sovereignty violation.[65] It is clear that a cyber operation with severe destructive effects, comparable to a “non-cyber” armed attack or a use of force against a State, constitutes a violation of its sovereignty; however, with more subtle cyber operations, the question is far from settled.[66] Accordingly, the assessment needs to be done on a case-by-case basis.[67]

The following modalities, highlighted in the Tallinn Manual 2.0, represent different ways of determining what a “sovereignty violation” might mean in the context of cyber operations:

  1. A State organ conducting cyber operations against a target State or entities or persons located there while physically present in the target State's territory violates the target State's sovereignty.[68] This was agreed by all Experts drafting the Manual; however, “a few” of the Experts thought that the extensive State practice carved out an exception for espionage operations.[69]
  2. Causation of physical damage or injury by remote means;[70] again, “a few” Experts took the position that this is a relevant but not a determinative factor by itself.[71]
  3. Causation of a loss of functionality of cyber infrastructure: although the Tallinn Manual 2.0 experts agreed that a loss of functionality constituted “damage” and thus a breach of sovereignty, no consensus could be achieved as on the precise threshold for a loss of functionality (the necessity of reinstallation of the operating system or other software was proposed but not universally accepted);[72] Below this threshold, there was no agreement among the Experts whether operations that do not cause physical consequences or a loss of functionality qualify as a violation of sovereignty.[73]
  4. Interference with data or services that are necessary for the exercise of "inherently governmental functions";[74] although the Experts could not conclusively define the term "inherently governmental functions", they agreed that, for example, the conduct of elections would so qualify.[75]
  5. Usurpation of "inherently governmental functions", such as exercise of law enforcement functions in another State’s territory without justification.[76]

The Tallinn Manual’s view of what constitutes a violation of sovereignty has been expressly endorsed by several States including Canada,[77] Germany[78] and the Netherlands;[79] and followed to some extent by other States, such as the Czech Republic,[80] Norway,[81] Sweden[82] and Switzerland.[83] An alternative test has been proposed by France, which argues that a breach of sovereignty occurs already when there is “any unauthorised penetration by a State of [the victim State’s] systems”;[84]similarly, Iran has argued that “unlawful intrusion to the (public or private) cyber structures” abroad may qualify as a breach of sovereignty.[85]

Attributing the relevant cyber operation to a State different from the target State is a necessary prerequisite for qualifying the cyber operation as a violation of the target State's sovereignty.

Whether non-State actors can violate territorial sovereignty on their own is a matter of disagreement.[86]

Publicly available national positions that address this issue include: Common position of the African Union (2024) (2024), National position of Australia (2020) (2020), National position of Brazil (2021) (2021), National position of Canada (2022) (2022), National position of the People's Republic of China (2021) (2021), National position of Costa Rica (2023) (2023), National position of the Czech Republic (2020) (2020), National position of Denmark (2023) (2023), National position of Estonia (2019) (2019), National position of Estonia (2021) (2021), National position of Finland (2020) (2020), National position of France (2019) (2019), National position of Germany (2021) (2021), National position of Iran (2020) (2020), National position of Ireland (2023) (2023), National position of Israel (2020) (2020), National position of the Italian Republic (2021) (2021), National position of Japan (2021) (2021), National position of Kenya (2021) (2021), National position of the Netherlands (2019) (2019), National position of New Zealand (2020) (2020), National position of Norway (2021) (2021), National position of Pakistan (2023) (2023), National position of the Republic of Poland (2022) (2022), National position of Romania (2021) (2021), National position of Singapore (2021) (2021), National position of the Kingdom of Sweden (2022) (2022), National position of Switzerland (2021) (2021), National position of the United Kingdom (2018) (2018), National position of the United Kingdom (2021) (2021), National position of the United Kingdom (2022) (2022), National position of the United States of America (2012) (2012), National position of the United States of America (2016) (2016), National position of the United States of America (2020) (2020), National position of the United States of America (2021) (2021).

[L6] State B, through its diplomat working at the embassy in State A might have violated State A’s sovereignty by engaging in cyber espionage operations against State A’s companies while physically present in State A’s territory (option 1).

[L7] The insider might have violated State A’s sovereignty by engaging in cyber espionage from State A’s territory (option 1), but only if he or she was an organ of State B or these activities can be otherwise attributed to State B (such as acting on the instructions of State B).[87]

[L8] On this ground, State B in any case only incurs responsibility for the activities of the diplomat and the insider on the foreign territory, but not for its military unit conducting the cyber espionage operation from its own territory.

[L9] Options 2 to 5 are not applicable to the situation.

Violation of a potential rule in international law forbidding economic cyber espionage[edit | edit source]

Economic cyber espionage
The United States has, already in its 2011 International Strategy for Cyberspace, declared that it “will take measures to identify and respond to [persistent theft of intellectual property, whether by criminals, foreign firms, or state actors working on their behalf,] to help build an international environment that recognizes such acts as unlawful and impermissible, and hold such actors accountable.”[88] The G20 countries reaffirmed in 2015 that “no country should conduct or support ICT-enabled theft of intellectual property, including trade secrets or other confidential business information, with the intent of providing competitive advantages to companies or commercial sectors.”[89] In September 2015, the US and China agreed on a similar commitment on a bilateral basis.[90]

Therefore, there is a push to curb the practice by developing a prohibition of such practice as a matter of international law.

However, according to the prevailing opinion, no such prohibition has crystallised in customary international law. In this regard, it is noteworthy that the 2015 UN GGE report does not mention economic cyber espionage among the applicable norms, rules, and principles of responsible State behaviour in cyberspace.[91] Several authors,[92] including experts of the Tallinn Manual 2.0,[93] consider that there is no distinction between economic cyber espionage and other forms of cyber espionage in general international law.[94] Additionally, no international consensus exists that agreements such as the WTO TRIPS[95] protect trade secrets against espionage conducted by a foreign state, and it is unclear whether the affected company can challenge the spying State in a domestic court or pursuant to a bilateral investment treaty, if there is one.[96]

Accordingly, such conduct is not subject to any general prohibition under extant international law.

[L10] Hence, the mere characterization of State B’s cyber operations as amounting to economic cyber espionage is insufficient to establish its international responsibility. For any ramifications according to the rules on sovereignty or prohibited intervention, see above.

Permissible responses by State A[edit | edit source]

[L11] It should be reiterated that State B violated its obligation under Article 41 VCDR by using the premises of the mission for an unlawful cyber espionage operation; it may also have violated State B’s sovereignty by the same activity, and by using the insider in State A’s territory for the spying.

[L12] The indictments of the insider and of the members of State B’s military unit constitute an exercise of criminal jurisdiction of State A, without direct relevance for the purposes of analysis under public international law (except for possible international legal assistance implications which are not mentioned in the description of facts).

Persona non grata[edit | edit source]

Persona non grata
Apart from primary rules which can be violated by the sending State’s conduct, the Vienna Convention on Diplomatic Relations also applies to the response of the receiving State. The sending State’s diplomats in the receiving State enjoy an immunity from the criminal jurisdiction of the receiving State.[97] When they are declared personae non gratae, the sending State has to recall them or terminate their functions.[98] Declaring personae non gratae those diplomats who were suspect of other activities against the interests of the receiving State without strong evidence is also lawful, since the receiving State's decision is fully discretionary and it does not need to provide any reasons.[99]

The declaration as persona non grata is a specific remedy under the VCDR.[100] However, this remedy is not the only one available; if the sending State's operation amounts to an internationally wrongful act, the receiving State could possibly invoke countermeasures in its response.[101]

Countermeasures[edit | edit source]

[L13] State B's operation does amount to an internationally wrongful act, so countermeasures could be available:

Countermeasures
Countermeasures are “measures that would otherwise be contrary to the international obligations of an injured State vis-à-vis the responsible State, if they were not taken by the former in response to an internationally wrongful act by the latter in order to procure cessation and reparation”.[102] Several States, including Australia,[103] Austria,[104] Canada,[105] Estonia,[106] France,[107] Germany,[108] Italy,[109] Japan,[110] the Netherlands,[111] New Zealand,[112] Norway,[113] Singapore,[114] Sweden,[115] the United Kingdom,[116] and the United States,[117] have expressly confirmed the applicability of the law of countermeasures to cyber operations. Others, including Brazil,[118] China,[119] and Cuba,[120] have expressed caution in this regard. Countermeasures should be distinguished from retorsions, which are unfriendly but lawful acts by the aggrieved party against the wrongdoer.

As a matter of general international law, an injured State may only take countermeasures against the responsible State if the following conditions are met:

  1. The existence of a prior internationally wrongful act of the responsible State against the injured State.[121] If that act consists of a cyber operation, this means that the operation must have been amounted to a breach of the obligations of the responsible State that is attributable to that State;
  2. The injured State has called upon[122] the responsible State to fulfil its obligations arising from its internationally wrongful act;[123] and
  3. The injured State has notified the responsible State of its decision to take countermeasures, and offered to negotiate with that State, unless it is taking “urgent countermeasures as are necessary to preserve its rights.”[124] Some States, such as Canada,[125] Israel,[126] Norway,[127] the United Kingdom[128] and the United States[129] have advocated for a particular approach to the notification requirement in the cyber realm, in particular to preserve the effectiveness of the measures and/or to avoid exposing sensitive capabilities of the responding State.[130]

Additionally, the countermeasures must fulfil the following requirements:

  2. Their aim must be to induce the responsible State to comply with the legal consequences of its internationally wrongful act;[131] hence, the aim of countermeasures is restoration, not retribution or retaliation; and the countermeasures can only target the responsible State;
  3. They “shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question”;[132]
  4. They shall not affect the obligation to refrain from the threat or use of force,[133] obligations for the protection of fundamental human rights, of a humanitarian character prohibiting reprisals, or other “obligations under peremptory norms of general international law”;[134] obligations under any dispute settlement procedure between the injured and responsible State, and obligations arising from the inviolability of diplomatic or consular agents, premises, archives and documents;[135] and
  5. They must be “commensurate with the injury suffered, taking into account the gravity” of the prior unlawful act and of the rights in question (i.e. the “proportionality” requirement).[136] However, proportionality does not require that the adopted measures must be equivalent, reciprocal or even in kind.[137] As clearly expressesd by many States, including Canada,[138] Germany,[139] Italy,[140] Japan,[141] Norway,[142] Sweden,[143] Switzerland,[144] the United Kingdom[145] and the United States,[146] countermeasures against cyber operations can be non-cyber in nature, and cyber countermeasures may be adopted in response to non-cyber wrongful acts.

Countermeasures are temporary in nature. In case the original internationally wrongful act has ceased, and the dispute is submitted in good faith to a court or tribunal with the authority to make decisions binding on the parties, countermeasures may not be taken and if already taken, must be suspended,[147] except if the responsible State fails to implement the dispute settlement procedures in good faith.[148] Countermeasures must also be terminated as soon as the responsible State has complied with its (secondary) obligations.[149]

There is an ongoing debate as to whether States that have not themselves been directly injured by an unlawful cyber operation may engage in countermeasures in support of the injured State (sometimes referred to as "collective countermeasures").[150] In particular, Estonia has opined that non-injured States “may apply countermeasures to support the state directly affected by the malicious cyber operation”,[151] a view that has also received some support from New Zealand.[152] This would apply where diplomatic action is insufficient, but no lawful recourse to use of force exists. This interpretation would allow States to offer active assistance to other States, which may not possess sufficient cyber capabilities themselves to counter an ongoing unlawful cyber operation, or otherwise deter the responsible State with other non-cyber countermeasures.[153] However, this view has since been rejected by at least one State (France),[154] while others, such as Canada, do not yet consider there to be “sufficient State practice or opinio juris to conclude that [collective countermeasures] are permitted under international law”.[155] Therefore, it has to be regarded as a call for progressive development of international law, rather than a statement of the current state of international law.

Whether a particular measure fulfils these conditions is an objective question,[156] while the burden of proof that the relevant conditions have been fulfilled falls on the injured State.[157] The exact standard of proof required is unsettled in international law and it will depend on the relevant forum. However, relevant international jurisprudence tends to rely on the standard of “clear and convincing evidence”.[158] This standard translates in practice into a duty to “convince the arbiter in question that it is substantially more likely than not that the factual claims that have been made are true”.[159] Importantly, if a State does resort to countermeasures on the basis of an unfounded assessment that a breach has occurred, it may incur in international responsibility for its own wrongful conduct.[160]

Publicly available national positions that address this issue include: National position of Australia (2020) (2020), National position of Brazil (2021) (2021), National position of Canada (2022) (2022), National position of Costa Rica (2023) (2023), National position of Denmark (2023) (2023), National position of Estonia (2019) (2019), National position of Estonia (2021) (2021), National position of Finland (2020) (2020), National position of France (2019) (2019), National position of Germany (2021) (2021), National position of Ireland (2023) (2023), National position of Israel (2020) (2020), National position of the Italian Republic (2021) (2021), National position of Japan (2021) (2021), National position of the Netherlands (2019) (2019), National position of New Zealand (2020) (2020), National position of Norway (2021) (2021), National position of the Republic of Poland (2022) (2022), National position of Romania (2021) (2021), National position of the Russian Federation (2021) (2021), National position of Singapore (2021) (2021), National position of the Kingdom of Sweden (2022) (2022), National position of Switzerland (2021) (2021), National position of the United Kingdom (2018) (2018), National position of the United Kingdom (2021) (2021), National position of the United Kingdom (2022) (2022), National position of the United States of America (2016) (2016), National position of the United States of America (2020) (2020), National position of the United States of America (2021) (2021).

[L14] Given that the internationally wrongful act by State B in this case entailed a breach of its duties under the VCDR, it is likely that the internationally wrongful act of State B has ceased when the diplomats were expelled and the insider arrested; the act had a continuing character and was terminated by State A’s response,[161] even though its effects (malware in State A’s systems) may have taken longer to remedy. If the act was continuing, the answer would be less clear if State B continued using its military unit to maintain the malware after State A’s response.

[L15] If, instead, State A chose to take countermeasures before or instead of declaring the diplomats personae non gratae, State B’s internationally wrongful act would be of a continuing nature. State A would only have to call upon State B to fulfil its obligations, and, if the countermeasures were not urgent, also notify State B about the decision to take countermeasures.

[L16] Importantly, State A’s countermeasures must not affect its “obligations arising from the inviolability of diplomatic or consular agents, premises, archives and documents”.[162] For instance, hacking the diplomats’ computers would not be a legitimate countermeasure.

[L17] In summary, all of the responses by State A referred to in the scenario are compatible with the applicable rules of international law.

Checklist[edit | edit source]

  • Attribution:
    • Is the diplomat a State organ?
    • What is the link between the insider in the private company and State B?
  • Diplomatic law/Espionage:
    • Where and when are diplomats not permitted to spy?
  • Sovereignty/Espionage:
    • Is geography relevant for establishing a violation of sovereignty by espionage operations?
  • Economic cyber espionage:
    • Is economic cyber espionage legally different from non-economic cyber espionage?
  • Permissible responses:
    • What specific remedy does diplomatic law provide?
    • Are countermeasures available in addition to any specific remedies, and what are the relevant requirements?

Appendixes[edit | edit source]

See also[edit | edit source]

Notes and references[edit | edit source]

  1. ↑ Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964), 500 UNTS 95.
  2. ↑ ILC Articles on State Responsibility, Art 4(1).
  3. ↑ ILC Articles on State Responsibility, Art 5.
  4. ↑ ILC Articles on State Responsibility, Art 6.
  5. ↑ ILC Articles on State Responsibility, Art 7; Tallinn Manual 2.0, commentary to rule 15, paras. 6-7 and 12.
  6. ↑ ILC Articles on State Responsibility, Art 4; see also ICRC Customary IHL Study, vol 1, 530–531 (“The armed forces are considered to be a State organ, like any other entity of the executive, legislative or judicial branch of government.”).
  7. ↑ ILC Articles on State Responsibility, Art 8; see also Kubo Mačák, ‘Decoding Article 8 of the International Law Commission’s Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors’ (2016) 21 JC&SL 405.
  8. ↑ Kubo Mačák, ‘Decoding Article 8 of the International Law Commission’s Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors’ (2016) 21 JCSL 405, 426–27.
  9. ↑ See: ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14, para 115; ICJ, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, para 400.
  10. ↑ See Stefan Talmon, ‘The Responsibility of Outside Powers for Acts of Secessionist Entities’ (2009) 58(3) International and Comparative Law Quarterly 493, 503; Tomohiro Mikanagi and Kubo Mačák, ‘Attribution of cyber operations: an international law perspective on the Park Jin Hyok case’ (2020) 9(1) Cambridge International Law Journal 51, 63; See also Marco Roscini, Cyber Operations and the Use of Force in International Law (OUP 2014) 37-38.
  11. ↑ Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 21.
  12. ↑ Government of the Kingdom of the Netherlands, Appendix: International law in cyberspace (26 September 2019) 6.
  13. ↑ Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 71.
  14. ↑ Prosecutor v Tadić (Appeal Judgment) IT-94-1-A (ICTY, 15 July 1999) paras 116 and ff.
  15. ↑ ICRC (ed), Commentary to the First Geneva Gonvention (CUP 2016) para 409; ICRC (ed), Commentary to the Third Geneva Convention (CUP 2021) para 304
  16. ↑ Prosecutor v Prlić et al (Trial Judgment) IT-04-74-T (ICTY, 29 May 2013), para. 86(a); see also Kubo Mačák, ‘Decoding Article 8 of the International Law Commission’s Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors’ (2016) 21 JCSL 405, 422.
  17. ↑ Prosecutor v Tadić (Appeal Judgment) IT-94-1-A (ICTY, 15 July 1999) para 132; see also Antonio Cassese, ‘The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’ (2007) 18(4) EJIL 649, 657.
  18. ↑ ILC Articles on State Responsibility, Art 9.
  19. ↑ ILC Articles on State Responsibility, Art 10(1).
  20. ↑ ILC Articles on State Responsibility, Art 10(2).
  21. ↑ ILC Articles on State Responsibility, Art 11.
  22. ↑ Kubo Mačák, ‘Decoding Article 8 of the International Law Commission’s Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors’ (2016) 21 JCSL 405, 419.
  23. ↑ ILC Articles on State Responsibility, Art 8.
  24. ↑ Art 41 (1) VCDR.
  25. ↑ Art 41 (3) VCDR.
  26. ↑ Art 31 (1) (d) VCDR.
  27. ↑ See, UK, Official Secrets Act 1911, s 1; US, 18 USC §792–799.
  28. ↑ Cf. Darien Pun, ‘Rethinking Espionage in the Modern Era’ (2017) 18 Chicago JIL 353, 368; see also ICJ, United States Diplomatic and Consular Staff in Tehran [1980] ICJ Rep 3, 39–40 [84]–[85] (describing espionage as an abuse of diplomatic functions under the VCDR).
  29. ↑ See also Tallinn Manual 2.0, commentary to rule 43, para 3 (“a sending State may not use the premises of its diplomatic mission to engage in cyber espionage against the receiving State”).
  30. ↑ Island of Palmas (Neth. v. U.S.), 2 RIAA 829, 838 (Perm. Ct. Arb. 1928).
  31. ↑ UNGA Res 71/237 (30 December 2015) UN Doc A/RES/20/237.
  32. ↑ African Union Peace and Security Council, "Common African Position on the Application of International Law to the Use of Information and Communication Technologies in Cyberspace" (29 January 2024).
  33. ↑ Council of the European Union,"Council Conclusions on the Joint Communication to the European Parliament and the Council: Resilience, Deterrence and Defence: Building strong cybersecurity for the EU" (Council conclusions, 20 November 2017).
  34. ↑ North Atlantic Treaty Organization, 'Wales Summit Declaration' (issued by the Head of State and Government participating in the meeting of the North Atlantic Council in Wales (5 September 2015) para 72.
  35. ↑ Organization for Security and Cooperation in Europe, Decision No. 1202, OSCE Confidence-Building Measures to Reduce the Risks of Conflict Stemming from the Use of Information and Communication Technologies (Permanent Council, 10 March 2016) PC.DEC/1202.
  36. ↑ See UNGA, Report of the Group of Governmental Experts on Developments in the Field of Information andTelecommunications in the Context of International Security, UN Doc A/68/98 (24 June 2013) para 20; UNGA, Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security, A/70/174 (22 July 2015) paras 27, 28(b); UNGA, Report of the Group of Governmental Experts on Advancing Responsible State Behaviour in Cyberspace in the Context of International Security, A/76/135 (14 July 2021) paras 70, 71(b).
  37. ↑ Michael N Schmitt, 'Virtual Disenfranchisement: Cyber Election Meddling in the Grey Zones of International Law' (2018) 19 ChiJIntlL 30,40; Tallinn Manual 2.0, rule 4 (‘A State must not conduct cyber operations that violate the sovereignty of another State’), and commentary to rule 4, para 2 (‘States shoulder an obligation to respect the sovereignty of other States as a matter of international law’).
  38. ↑ Austria, Pre-Draft Report of the OEWG - ICT: Comments by Austria (31 March 2020), stating that ‘a violation of the principle of State sovereignty constitutes an internationally wrongful act – if attributable to a State – for which a target State may seek reparation under the law of State responsibility’.
  39. ↑ Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 18.
  40. ↑ Government of Canada, International Law applicable in cyberspace (April 2022) para 13.
  41. ↑ Czech Republic, Statement by Mr. Richard Kadlčák, Special Envoy for Cyberspace, 2nd substantive session of the Open-ended Working Group on developments in the field of information and telecommunications in the context of international security (11 February 2020), stating that ‘[t]he Czech Republic concurs with those considering the principle of sovereignty as an independent right and the respect to sovereignty as an independent obligation.’
  42. ↑ Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 25.
  43. ↑ Finland, ‘International law and cyberspace: Finland’s national positions’ (15 October 2020), 3, stating that ‘Finland sees sovereignty as a primary rule of international law, a breach of which amounts to an internationally wrongful act and triggers State responsibility. This rule is fully applicable in cyberspace.’
  44. ↑ French Ministry of the Armies, ‘International Law Applied to Operations in Cyberspace’, 9 September 2019, stating that ‘Any unauthorised penetration by a State of French systems or any production of effects on French territory via a digital vector may constitute, at the least, a breach of sovereignty’.
  45. ↑ Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), p. 3, noting that ‘Germany agrees with the view that cyber operations attributable to States which violate the sovereignty of another State are contrary to international law’.
  46. ↑ Iran, ‘Declaration of General Staff of the Armed Forces of the Islamic Republic of Iran Regarding International Law Applicable to the Cyberspace’ (July 2020), para 4 (‘Any utilization of cyberspace if and when involves unlawful intrusion to the (public or private) cyber structures which is under the control of another state, maybe constituted as the violation of the sovereignty of the targeted state.’).
  47. ↑ Italian Ministry for Foreign Affairs and International Cooperation, ‘Italian position paper on “International law and cyberspace”’ (2021) 4.
  48. ↑ Ministry of Foreign Affairs of Japan, ‘Basic Position of the Government of Japan on International Law Applicable to Cyber Operations’ (16 June 2021) 3.
  49. ↑ Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019), stating that ‘countries may not conduct cyber operations that violate the sovereignty of another country’.
  50. ↑ New Zealand Foreign Affairs and Trade, ‘The Application of International Law to State Activity in Cyberspace’ (1 December 2020) 2.
  51. ↑ Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 67.
  52. ↑ Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 76.
  53. ↑ Government Offices of Sweden, ‘Position Paper on the Application of International Law in Cyberspace’ (July 2022) 2.
  54. ↑ Gary P. Corn and Robert Taylor, ‘Sovereignty in the Age of Cyber’ (2017) 111 AJIL Unbound 207, 208 (arguing that sovereignty is ‘a principle of international law that guides state interactions’).
  55. ↑ Jeremy Wright, ‘Cyber and International Law in the 21st Century’ (23 May 2018) (stating that he was ‘not persuaded that we can currently extrapolate from that general principle a specific rule or additional prohibition for cyber activity beyond that of a prohibited intervention. The UK Government’s position is therefore that there is no such rule as a matter of current international law’). The approach has been maintained in UK’s 2021 and 2022 national positions.
  56. ↑ Paul C. Ney, DOD General Counsel Remarks at U.S. Cyber Command Legal Conference, 2 March 2020, arguing that ‘the Department believes there is not sufficiently widespread and consistent State practice resulting from a sense of legal obligation to conclude that customary international law generally prohibits such non-consensual cyber operations in another State’s territory’.
  57. ↑ Cf. James Crawford, Brownlie's Principles of Public International Law (OUP 2012) 448.
  58. ↑ Tallinn Manual 2.0, rule 2.
  59. ↑ Sovereignty over cyber infrastructure derives from the traditional concept of sovereignty, independent of the use of cyberspace. See Wolff Heintschel von Heinegg, 'Territorial Sovereignty and Neutrality in Cyberspace' (2013) 89 Int’l L. Stud. 123 (noting that '[t]erritorial sovereignty [..] implies that, subject to applicable customary or conventional rules of international law, the State alone is entitled to exercise jurisdiction, especially by subjecting objects and persons within its territory to domestic legislation and to enforce these rules'). This has been endorsed by several States, including China, the Czech Republic, Estonia, Finland, France, Germany, Israel, Italy, the Netherlands, Norway, Sweden, Switzerland and the United States.
  60. ↑ Tallinn Manual 2.0., commentary to rule 4, para 5. See also the national positions of Norway, Sweden and Switzerland.
  61. ↑ Tallinn Manual 2.0., rule 3; see also the national positions of the Czech Republic, the Netherlands and Norway.
  62. ↑ UN GA Res 2625 (XXV) (24 October 1970) (Friendly Relations Declaration), preamble (emphasizing “that the purposes of the United Nations can be implemented only if States enjoy sovereign equality and comply fully with the requirements of this principle in their international relations”); Tallinn Manual 2.0, rule 4.
  63. ↑ Some States have referred to the nature of the operation, its consequences, and/or the scale or severity of the effects, as the relevant factors that should be assessed. See e.g. the national positions of Canada, Finland, Germany, New Zealand, Norway, Sweden and Switzerland. New Zealand also highlighted the nature of the target in this regard.
  64. ↑ Some States have highlighted the requirement of certain level beyond “negligible” or “de minimis” effects, such as Canada and Germany. See similarly, New Zealand’s national position. For further discussion on the required threshold, see Michael N Schmitt and Liis Vihul, ‘Respect for Sovereignty in Cyberspace’ (2017) 95 Texas Law Review 1639; Harriet Moynihan, ‘The Application of International Law to State Cyberattacks. Sovereignty and Non-Intervention’, Chatham House (2 December 2019) paras 60 and ff.
  65. ↑ Michael Schmitt, ‘Sovereignty, Intervention, and Autonomous Cyber Capabilities’ (2020) 96 International Law Studies 549.
  66. ↑ Tallinn Manual 2.0, commentary to rule 4, para 5 and 12.
  67. ↑ See e.g. the national position of Canada, Finland, New Zealand, Norway, Sweden and Switzerland.
  68. ↑ See, eg, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) (Judgment) [2015] ICJ Rep 665, 704–05, paras 97–99 (holding that the presence of Nicaragua’s military personnel in the territory under Costa Rica’s sovereignty amounted to a violation of Costa Rica’s territorial sovereignty); see also Tallinn Manual 2.0, commentary to rule 4, para 6.
  69. ↑ Tallinn Manual 2.0, commentary to rule 4, para 7; commentary to rule 32, para 9. See also, the national positions of Canada and New Zealand.
  70. ↑ Tallinn Manual 2.0, commentary to rule 4, para 11.
  71. ↑ Tallinn Manual 2.0, commentary to rule 4, para 12.
  72. ↑ Tallinn Manual 2.0, commentary to rule 4, para 13. Additionally, there was agreement between the experts that ‘a cyber operation necessitating repair or replacement of physical components of cyber infrastructure amounts to a violation because such consequences are akin to physical damage or injury’. See also in this respect Canada’s national position.
  73. ↑ Tallinn Manual 2.0, commentary to rule 4, para 14.
  74. ↑ Tallinn Manual 2.0, commentary to rule 4, para 15.
  75. ↑ Tallinn Manual 2.0, commentary to rule 4, para 16. Other examples may include law enforcement, taxation, foreign relations and national defense. See e.g. the national positions of Canada, Germany and Norway. See also Michael Schmitt, ‘Sovereignty, Intervention, and Autonomous Cyber Capabilities’ (2020) 96 International Law Studies 549, 557.
  76. ↑ Tallinn Manual 2.0, commentary to rule 4, para 18.
  77. ↑ Government of Canada, International Law applicable in cyberspace (April 2022) para 13.
  78. ↑ Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), p. 4.
  79. ↑ Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019), p. 3.
  80. ↑ Richard Kadlčák, Statement of the Special Envoy for Cyberspace and Director of Cybersecurity Department of the Czech Republic (11 February 2020) 3.
  81. ↑ Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 68.
  82. ↑ Government Offices of Sweden, Position Paper on the Application of International Law in Cyberspace (July 2022) 2
  83. ↑ Federal Department of Foreign Affairs, ‘Switzerland's position paper on the application of international law in cyberspace’ (May 2021) 3.
  84. ↑ Ministry of Defense of France, 'International Law Applied to Operations in Cyberspace' (9 September 2019) 6.
  85. ↑ Declaration of General Staff of the Armed Forces of the Islamic Republic of Iran Regarding International Law Applicable to the Cyberspace (August 2020) para 4 (‘Any utilization of cyberspace if and when involves unlawful intrusion to the (public or private) cyber structures which is under the control of another state, maybe constituted as the violation of the sovereignty of the targeted state’).
  86. ↑ In favour: see, e.g., Theodore Christakis, ‘The ICJ Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?’ (2011) 24 LJIL 73, 84; Marcelo Kohen, ‘The Court’s Contribution to Determining the Content of Fundamental Principles of International Law’ in Giorgio Gaja and Jenny Grote Stoutenburg (eds), Enhancing the Rule of Law through the International Court of Justice (Brill 2012) 145. Against: see, eg, Tallinn Manual 2.0, commentary to rule 4, para 3; Romania’s national position (‘If there is not a State or State endorsed operation one can speak of a criminal act, which should be investigated and punished in accordance with the criminal law of the State concerned’).
  87. ↑ In both cases, see for an alternative view, Tallinn Manual 2.0., commentary to rule 4, para 8 (‘A few of the Experts were of the view that the extensive State practice of conducting espionage on the target State’s territory has created an exception to the generally accepted premise that non-consensual activities attributable to a State while physically present on another’s territory violate sovereignty. They emphasised, however, that this exception is narrow and limited solely to acts of espionage’).
  88. ↑ President of the United States, ‘International Strategy for Cyberspace: Prosperity, Security, and Openness in a Networked World’ (2011).
  89. ↑ G20 Leaders’ Communiqué (15–16 November 2015), para 26; see also G7 Principles and Actions on Cyber (Annex to the Ise-Shima Declaration from 27 May 2016).
  90. ↑ See US, ‘FACT SHEET: President Xi Jinping’s State Visit to the United States’ (25 September 2015).
  91. ↑ UNGA ‘Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security’ (22 July 2015), A/70/174.
  92. ↑ Catherine Lotrionte, ‘Countering State-Sponsored Cyber Economic Espionage Under International Law’ (2015) 40 N.C. J. INT'L L. & COM. REG. 443, 488-492; David Fidler, ‘Economic Cyber Espionage and International Law: Controversies Involving Government Acquisition of Trade Secrets through Cyber Technologies’ (2013) 17/10 ASIL Insights; Erica Häger & Carolina Dackö, ‘Economic Espionage: A Report by Mannheimer Swartling’ (2018).
  93. ↑ Tallinn Manual 2.0, rule 32, commentary 3.
  94. ↑ For an opposing view, see Russell Buchan, ‘The International Legal Regulation of State-Sponsored Cyber Espionage’ (2016) in International Cyber Norms: Legal, Policy & Industry Perspectives, Anna-Maria Osula and Henry Rõigas (Eds.), NATO CCD COE Publications, Tallinn 2016.
  95. ↑ Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C to the Agreement Establishing the World Trade Organization (signed on 15 April 1994 in Marrakesh), 1869 UNTS 299, 33 ILM 1197.
  96. ↑ Erika Häger & Carolina Dackö, ‘Economic Espionage: A Report by Mannheimer Swartling’ (2018), page 5: “Economic espionage, to the extent it qualifies as a violation of intellectual property rights, should arguably be treated as an act comparable to commercial activities, jure gestionis. A [S]tate would then not be able to claim state immunity for such acts and could thus instead face a normal trial in a domestic court.“
  97. ↑ Art 31 (1) VCDR.
  98. ↑ Art 9 (1) VCDR.
  99. ↑ Jean D’Aspremont, ‘Persona Non Grata’, in Rudiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2008) (updated January 2009): “Given that the reasons need not be given by the receiving State when declaring a diplomatic or consular agent of the sending State persona non grata, the declaration of a diplomatic agent as persona non grata is utterly discretionary. The receiving State may thus make use of it for various reasons, whether for the behaviour of the agent himself or due to the actions of the sending State.”
  100. ↑ United States Diplomatic and Consular Staff in Tehran, United States v Iran, Judgment, ICGJ 124 (ICJ 1980), 24 May 1980, paragraph 85.
  101. ↑ Jean D’Aspremont, ‘Persona Non Grata’, in Rudiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2008) (updated January 2009), para. 16.
  102. ↑ ILC Articles on State Responsibility, Commentary, part 3 ch 2 at para 1.
  103. ↑ Australian Government, Australia's position on how international law applies to State conduct in cyberspace (2020).
  104. ↑ Austria, Pre-Draft Report of the OEWG - ICT: Comments by Austria (31 March 2020), stating that ‘a violation of the principle of State sovereignty constitutes an internationally wrongful act – if attributable to a State – for which a target State may seek reparation under the law of State responsibility. A target State may also react through proportionate countermeasures.’ (emphasis added).
  105. ↑ Government of Canada, International Law applicable in cyberspace (April 2022) para 34.
  106. ↑ Estonia, ‘President of the Republic at the opening of CyCon 2019’ (29 May 2019), stating that “states have the right to react to malicious cyber operations, including using diplomatic response but also countermeasures”
  107. ↑ French Ministry of the Armies, ‘International Law Applied to Operations in Cyberspace’ (9 September 2019) 6, stating that ‘In response to a cyberattack, France may consider diplomatic responses to certain incidents, countermeasures, or even coercive action by the armed forces if an attack constitutes armed aggression.’
  108. ↑ Germany, ‘Statement by Ambassador Dr Thomas Fitschen, Director for the United Nations, Cyber Foreign Policy and Counter-Terrorism, Federal Foreign Office of Germany’ (November 2018) 3, stating that ‘in case of a cyber operation that is in breach of an international legal obligation below the level of the use or threat of force prohibited by Art. 2 (IV) [of the UN Charter] States are also entitled to take countermeasures as allowed by international law.’
  109. ↑ Italian Ministry for Foreign Affairs and International Cooperation, 'Italian position paper on "International law and cyberspace"' (2021) 7-8.
  110. ↑ Japan, ‘Japan’s Position Paper for the Report of the United Nations Open-Ended Working Group on “Developments in the Field of Information and Telecommunications in the Context of International Security”’ (undated), stating that ‘Japan recognizes that basic rules on State responsibility including those on countermeasures applies to cyberspace.’
  111. ↑ Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019) 7.
  112. ↑ New Zealand Foreign Affairs and Trade, The Application of International Law to State Activity in Cyberspace (1 December 2020) 3-4.
  113. ↑ Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 72-73.
  114. ↑ Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 84.
  115. ↑ Government Offices of Sweden, Position Paper on the Application of International Law in Cyberspace (July 2022) 6.
  116. ↑ United Kingdom, ‘Statement on Other Disarmament Measures and International Security to the 72nd UNGA First Committee’ (23 October 2017), stating that ‘We reaffirm that the law of state responsibility applies to cyber operations in peacetime, including the availability of the doctrine of countermeasures in response to internationally wrongful acts.’
  117. ↑ Brian J. Egan, ‘Remarks on International Law and Stability in Cyberspace’ (10 November 2016), stating that countermeasures are available ‘to address malicious cyber activity’ if that activity amounts to a prior internationally wrongful act attributable to another State.
  118. ↑ Brazil, ‘Open-ended Working Group on developments in the field of information and telecommunications in the context of international security: Second Substantive Session - New York, 11 February 2020: Statement by the Delegation of Brazil’ (11 February 2020), stating that ‘In the case of malicious acts in cyberspace, it is often difficult to attribute responsibility to a particular State or actor with unqualified certainty. A decision to resort to countermeasures in response to such acts carries a high risk of targeting innocent actors, and of triggering escalation.’
  119. ↑ China, ‘Statement by the Chinese Delegation at the Thematic Debate of the First Committee of the 72th UNGA’ (October 2017), stating that ‘Countries should discuss application of international law in the manner conducive to maintain peace, avoid introducing force, deterrence and countermeasures into cyberspace, so as to prevent arms race in cyberspace and reduce risks of confrontation and conflicts.’
  120. ↑ Cuba, ‘Declaration by Miguel Rodríguez, Representative of Cuba, at the Final Session of Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security’ (23 June 2017), registering ‘serious concern over the pretension of some, reflected in para 34 of the draft final report, to convert cyberspace into a theater of military operations and to legitimize, in that context, unilateral punitive force actions, including the application of sanctions and even military action by States claiming to be victims of illicit uses of ICTs.’ (emphasis added).
  121. ↑ ILC Articles on State Responsibility, Art 49 para 1; Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) 1997 ICJ Rep 7, para 83.
  122. ↑ ILC Articles on State Responsibility, Art 52 para 1 subpara a). According to the UK Attorney General, the UK does not feel legally obliged, when taking countermeasures in response to a covert cyber intrusion, to “give prior notification to the hostile state”. UK Attorney General, Jeremy Wright QC MP, ‘Cyber and International Law in the 21st Century’.
  123. ↑ ILC Articles on State Responsibility, Art 28-41; the list of consequences includes (i) continued duty of performance, (ii) cessation and non-repetition, (iii) reparation, and (iv) particular consequences of a serious breach of obligations under peremptory norms of general international law.
  124. ↑ ILC Articles on State Responsibility, Art 52 para 1 subpara b) – Art 52 para 2.
  125. ↑ Government of Canada, International Law applicable in cyberspace (April 2022).
  126. ↑ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations (8 December 2020).
  127. ↑ Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 72-73.
  128. ↑ UK Attorney General, Jeremy Wright QC MP, ‘Cyber and International Law in the 21st Century’ (2018); United Kingdom Foreign, Commonwealth & Development Office, Application of international law to states’ conduct in cyberspace: UK statement (3 June 2021).
  129. ↑ Hon Paul C Ney, Jr., DOD General Counsel Remarks at U.S. Cyber Command Legal Conference (2 March 2020).
  130. ↑ See also Tallinn Manual 2.0, commentary to rule 21, paras 10–12.
  131. ↑ ILC Articles on State Responsibility, Art 49(1); Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) 1997 ICJ Rep 7, para 87. The list of consequences in Art 28-41 includes (i) continued duty of performance, (ii) cessation and non-repetition, (iii) reparation, and (iv) particular consequences of a serious breach of obligations under peremptory norms of general international law.
  132. ↑ ILC Articles on State Responsibility, Art 49(3).
  133. ↑ The position of the ILC has been followed by States in their national positions, including Australia, Brazil, Canada, Finland, France, Italy, the Netherlands, New Zealand, Norway, Russia, Sweden, Switzerland and the UK. For an alternative view on “forcible countermeasures” see Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment, I.C.J. Reports 2003, 16, Separate Opinion of Judge Simma [12 and ff].
  134. ↑ ILC Articles on State Responsibility, Art 50(1).
  135. ↑ ILC Articles on State Responsibility, Art 50(2).
  136. ↑ Articles on State Responsibility, Art 51; Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) 1997 ICJ Rep 7, para 85.
  137. ↑ See ILC Articles on State Responsibility, part 3, para 5; see also Tallinn Manual 2.0, commentary to rule 23, para 7.
  138. ↑ Government of Canada, International Law applicable in cyberspace (April 2022).
  139. ↑ Federal Government of Germany, ‘On the Application of International Law in Cyberspace’, Position Paper (March 2021) 13-14.
  140. ↑ Italian Ministry for Foreign Affairs and International Cooperation, ‘Italian position paper on "International law and cyberspace"’ (2021) 7-8.
  141. ↑ Ministry of Foreign Affairs of Japan, Basic Position of the Government of Japan on International Law Applicable to Cyber Operations (16 June 2021) 4-5.
  142. ↑ Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 72-73.
  143. ↑ Government Offices of Sweden, Position Paper on the Application of International Law in Cyberspace (July 2022) 6.
  144. ↑ Federal Department of Foreign Affairs, ‘Switzerland's position paper on the application of international law in cyberspace’ (May 2021) 6-7.
  145. ↑ Attorney General Jeremy Wright, Cyber and International Law in the 21st Century (23 May 2018); Attorney General Suella Braverman, International Law in Future Frontiers (19 May 2022).
  146. ↑ Brian J Egan, International Law and Stability in Cyberspace (10 November 2016) 21-22; Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 142.
  147. ↑ ILC Articles on State Responsibility, Art 52(3).
  148. ↑ ILC Articles on State Responsibility, Art 52(4).
  149. ↑ ILC Articles on State Responsibility, Art 53.
  150. ↑ ILC Articles on State Responsibility, Art 54. In the cyber context, scholarship supportive of notion of collective countermeasures includes Michael N Schmitt, ‘Estonia Speaks Out on Key Rules for Cyberspace’ (Just Security, 10 June 2019), considering the Estonian interpretation to be “an advantageous development in the catalogue of response options that international law provides to deal with unlawful acts”; see also Michael N Schmitt and Sean Watts, ‘Collective Cyber Countermeasures?’ (2021) 12 Harvard National Security Journal 373. Conversely, scholarship that has rejected this notion includes Jeff Kosseff, ‘Collective Countermeasures in Cyberspace’ (2020) 10(1) Notre Dame Journal of International & Comparative Law 18, 34; François Delerue, Cyber Operations and International Law (CUP 2020), 457.
  151. ↑ President of Estonia, Kersti Kaljulaid, ‘President of the Republic at the opening of CyCon 2019’ (29.05.2019); see also Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 28.
  152. ↑ New Zealand Foreing Affairs and Trade, The Application of International Law to State Activity in Cyberspace (1 December 2020) 3-4.
  153. ↑ Michael Schmitt, Three International Law Rules for Responding Effectively to Hostile Cyber Operations (Just Security, 31 July 2021)
  154. ↑ French Ministry of the Armies, International Law Applied to Operations in Cyberspace (9 September 2019) 10, arguing that collective countermeasures are not authorised under international law.
  155. ↑ Government of Canada, International Law applicable in cyberspace (April 2022) para 37.
  156. ↑ ILC Articles on State Responsibility, Commentary in Part 3, Chapter 2 on Art 49, para 3.
  157. ↑ ILC Articles on State Responsibility, Commentary to Part One, Chapter 5, para 8 (noting that “[i]n a bilateral dispute over State responsibility, the onus of establishing responsibility lies in principle on the claimant State”).
  158. ↑ See, eg, Trail Smelter case (United States v Canada) (Award) 1941 3 RIAA 1905, 1965; see also Robin Geiss and Henning Lahmann, ‘Freedom and Security in Cyberspace: Shifting the Focus Away from Military Responses Towards Non-Forcible Countermeasures and Collective Threat-Prevention’ in Katharina Ziolkowski (ed), Peacetime Regime for State Activities in Cyberspace (NATO CCD COE 2013) 624 (noting that in cases where State responsibility is involved, the required threshold tends to shift towards ‘clear and convincing’”).
  159. ↑ James Green, ‘Fluctuating Evidentiary Standards for Self-Defence in the International Court of Justice’ (2009) 58 ICLQ 163, 167 (emphasis original).
  160. ↑ ILC Articles on State Responsibility, Commentary in Part 3, Chapter 2 on Art 49 para 3.
  161. ↑ ILC Articles on State Responsibility, Article 14(2).
  162. ↑ ILC Articles on State Responsibility, Art 50(2)(b).

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