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This is the national position of Australia on international law applicable to cyber operations. Australia presented its position on the application of relevant international law to State conduct in cyberspace in its International Cyber Engagement Strategy in 2017.<ref>[https://www.dfat.gov.au/sites/default/files/DFAT%20AICES_AccPDF.pdf, Commonwealth of Australia, Department of Foreign Affairs and Trade, Australia’s International Cyber Engagement Strategy, October 2017]</ref> The position was further elaborated in 2019 through an "International Law Supplement"<ref>[https://www.internationalcybertech.gov.au/sites/default/files/2020-11/2019%20Legal%20Supplment_0.PDF, Australian Government, International Law Supplement, 2019]</ref> to be read in conjunction with the 2017 Strategy. The following position to the 2020 International Cyber and Critical Technology Engagement Strategy combines the two positions providing some updates.<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref>
 
This is the national position of Australia on international law applicable to cyber operations. Australia presented its position on the application of relevant international law to State conduct in cyberspace in its International Cyber Engagement Strategy in 2017.<ref>[https://www.dfat.gov.au/sites/default/files/DFAT%20AICES_AccPDF.pdf, Commonwealth of Australia, Department of Foreign Affairs and Trade, Australia’s International Cyber Engagement Strategy, October 2017]</ref> The position was further elaborated in 2019 through an "International Law Supplement"<ref>[https://www.internationalcybertech.gov.au/sites/default/files/2020-11/2019%20Legal%20Supplment_0.PDF, Australian Government, International Law Supplement, 2019]</ref> to be read in conjunction with the 2017 Strategy. The following position to the 2020 International Cyber and Critical Technology Engagement Strategy combines the two positions providing some updates.<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref>
   
==[[Applicability of international law]]==
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==Applicability of international law==
 
"The United Nations Charter (UN Charter) and associated rules of customary international law apply to activities conducted in cyberspace. Article 2(3) of the UN Charter requires States to seek the peaceful settlement of disputes and Article 2(4) prohibits the threat or use of force by a State against the territorial integrity or political independence of another State, or in any manner inconsistent with the purposes of the UN. These obligations – and the UN Charter in its entirety – apply in cyberspace as they do in the physical realm. They require States to resolve cyber incidents peacefully without escalation or resort to the threat or use of force. The obligation to seek peaceful settlement of disputes does not impinge upon a State's inherent right to act in individual or collective self-defence in response to an armed attack. This right applies equally in the cyber domain as it does in the physical realm."<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref>
<section begin=AU_2020 applicability />
 
"The United Nations Charter (UN Charter) and associated rules of customary international law apply to activities conducted in cyberspace. Article 2(3) of the UN Charter requires States to seek the peaceful settlement of disputes and Article 2(4) prohibits the threat or use of force by a State against the territorial integrity or political independence of another State, or in any manner inconsistent with the purposes of the UN. These obligations – and the UN Charter in its entirety – apply in cyberspace as they do in the physical realm. They require States to resolve cyber incidents peacefully without escalation or resort to the threat or use of force. The obligation to seek peaceful settlement of disputes does not impinge upon a State's inherent right to act in individual or collective self-defence in response to an armed attack. This right applies equally in the cyber domain as it does in the physical realm."<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref><section end=AU_2020 applicability />
 
   
==[[Use of force]]==
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==Use of force==
 
<section begin=AU_2020 use of force />
 
<section begin=AU_2020 use of force />
 
"In determining whether a cyber activity constitutes a use of force, States should consider whether the activity's scale and effects are comparable to traditional kinetic operations that rise to the level of use of force under international law. This involves a consideration of the intended or reasonably expected direct and indirect consequences of the cyber activity, including for example whether the activity could reasonably be expected to cause serious or extensive ('scale') damage or destruction ('effects') to life, or injury or death to persons, or result in damage to the victim State's objects, critical infrastructure and/or functioning.
 
"In determining whether a cyber activity constitutes a use of force, States should consider whether the activity's scale and effects are comparable to traditional kinetic operations that rise to the level of use of force under international law. This involves a consideration of the intended or reasonably expected direct and indirect consequences of the cyber activity, including for example whether the activity could reasonably be expected to cause serious or extensive ('scale') damage or destruction ('effects') to life, or injury or death to persons, or result in damage to the victim State's objects, critical infrastructure and/or functioning.
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A use of force will be lawful when the territorial State consents, when it is authorised by the Security Council under Chapter VII of the UN Charter, or when it is taken pursuant to a State's inherent right of individual or collective self-defence in response to an armed attack, as recognised in Article 51 of the Charter."<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref><section end=AU_2020 use of force />
 
A use of force will be lawful when the territorial State consents, when it is authorised by the Security Council under Chapter VII of the UN Charter, or when it is taken pursuant to a State's inherent right of individual or collective self-defence in response to an armed attack, as recognised in Article 51 of the Charter."<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref><section end=AU_2020 use of force />
   
==[[Self-defence|Self-defence and armed attack]]==
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==Self-defence and armed attack==
 
<section begin=AU_2020 self-defence, armed attack and use of force />
 
<section begin=AU_2020 self-defence, armed attack and use of force />
 
"A use of force will be lawful when the territorial State consents, when it is authorised by the Security Council under Chapter VII of the UN Charter, or when it is taken pursuant to a State's inherent right of individual or collective self-defence in response to an armed attack, as recognised in Article 51 of the Charter.
 
"A use of force will be lawful when the territorial State consents, when it is authorised by the Security Council under Chapter VII of the UN Charter, or when it is taken pursuant to a State's inherent right of individual or collective self-defence in response to an armed attack, as recognised in Article 51 of the Charter.
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'[A] state may act in anticipatory self-defence against an armed attack when the attacker is clearly committed to launching an armed attack, in circumstances where the victim will lose its last opportunity to effectively defend itself unless it acts. This standard reflects the nature of contemporary threats, as well as the means of attack that hostile parties might deploy. Consider, for example, a threatened armed attack in the form of an offensive cyber operation, ...which could cause large-scale loss of human life and damage to critical infrastructure. Such an attack might be launched in a split-second. Is it seriously to be suggested that a state has no right to take action before that split-second?'"<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref><section end=AU_2020 self-defence, armed attack and use of force />
 
'[A] state may act in anticipatory self-defence against an armed attack when the attacker is clearly committed to launching an armed attack, in circumstances where the victim will lose its last opportunity to effectively defend itself unless it acts. This standard reflects the nature of contemporary threats, as well as the means of attack that hostile parties might deploy. Consider, for example, a threatened armed attack in the form of an offensive cyber operation, ...which could cause large-scale loss of human life and damage to critical infrastructure. Such an attack might be launched in a split-second. Is it seriously to be suggested that a state has no right to take action before that split-second?'"<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref><section end=AU_2020 self-defence, armed attack and use of force />
   
==[[Prohibition of intervention]]==
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==Prohibition of intervention==
 
<section begin=AU_2020 prohibition of intervention />
 
<section begin=AU_2020 prohibition of intervention />
 
"Harmful conduct in cyberspace that does not constitute a use of force may still constitute a breach of the duty not to intervene in the internal or external affairs of another State. This obligation is encapsulated in Article 2(7) of the Charter and in customary international law.
 
"Harmful conduct in cyberspace that does not constitute a use of force may still constitute a breach of the duty not to intervene in the internal or external affairs of another State. This obligation is encapsulated in Article 2(7) of the Charter and in customary international law.
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A prohibited intervention is one that interferes by coercive means, either directly or indirectly, in matters that a State is permitted by the principle of State sovereignty to decide freely. Such matters include a State's economic, political, social systems and foreign policy. Coercive means are those that effectively deprive the State of the ability to control, decide upon or govern matters of an inherently sovereign nature. Accordingly, the use by a hostile State of cyber activities to manipulate the electoral system to alter the results of an election in another State, intervention in the fundamental operation of Parliament, or in the stability of States' financial systems would constitute a violation of the principle of non-intervention."<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref><section end=AU_2020 prohibition of intervention />
 
A prohibited intervention is one that interferes by coercive means, either directly or indirectly, in matters that a State is permitted by the principle of State sovereignty to decide freely. Such matters include a State's economic, political, social systems and foreign policy. Coercive means are those that effectively deprive the State of the ability to control, decide upon or govern matters of an inherently sovereign nature. Accordingly, the use by a hostile State of cyber activities to manipulate the electoral system to alter the results of an election in another State, intervention in the fundamental operation of Parliament, or in the stability of States' financial systems would constitute a violation of the principle of non-intervention."<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref><section end=AU_2020 prohibition of intervention />
   
==[[International humanitarian law (jus in bello)|International humanitarian law (''jus in bello'')]]==
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==International humanitarian law ''(jus in bello)''==
 
<section begin=AU_2020 IHL />
 
<section begin=AU_2020 IHL />
 
"International humanitarian law (IHL) (including the principles of humanity, necessity, proportionality and distinction) applies to cyber activities within an armed conflict.
 
"International humanitarian law (IHL) (including the principles of humanity, necessity, proportionality and distinction) applies to cyber activities within an armed conflict.
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All Australian military capabilities are employed in line with approved targeting procedures. Cyber activities are no different. Australian targeting procedures comply with the requirements of IHL and trained legal officers provide decision-makers with advice to ensure that Australia satisfies its obligations under international law and its domestic legal requirements."<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref><section end=AU_2020 IHL />
 
All Australian military capabilities are employed in line with approved targeting procedures. Cyber activities are no different. Australian targeting procedures comply with the requirements of IHL and trained legal officers provide decision-makers with advice to ensure that Australia satisfies its obligations under international law and its domestic legal requirements."<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref><section end=AU_2020 IHL />
   
==[[International human rights law]]==
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==International human rights law==
 
<section begin=AU_2020 international human rights law />
 
<section begin=AU_2020 international human rights law />
 
"International human rights law (IHRL) also applies to State conduct in cyberspace. Under IHRL, States have obligations to protect relevant human rights of individuals under their jurisdiction, including the right to privacy, where those rights are exercised or realised through or in cyberspace. Subject to lawful derogations and limitations, States must ensure without distinction individuals' rights to privacy, freedom of expression and freedom of association online."<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref><section end=AU_2020 international human rights law />
 
"International human rights law (IHRL) also applies to State conduct in cyberspace. Under IHRL, States have obligations to protect relevant human rights of individuals under their jurisdiction, including the right to privacy, where those rights are exercised or realised through or in cyberspace. Subject to lawful derogations and limitations, States must ensure without distinction individuals' rights to privacy, freedom of expression and freedom of association online."<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref><section end=AU_2020 international human rights law />
   
==[[State responsibility]]==
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==State responsibility==
 
<section begin=AU_2020 state responsibility />
 
<section begin=AU_2020 state responsibility />
 
"The customary international law on State responsibility, much of which is reflected in the International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts, applies to State behaviour in cyberspace. Under the law on State responsibility, there will be an internationally wrongful act of a State when its conduct in cyberspace – whether by act or omission – is attributable to it and constitutes a breach of one of its international obligations."<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref><section end=AU_2020 state responsibility />
 
"The customary international law on State responsibility, much of which is reflected in the International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts, applies to State behaviour in cyberspace. Under the law on State responsibility, there will be an internationally wrongful act of a State when its conduct in cyberspace – whether by act or omission – is attributable to it and constitutes a breach of one of its international obligations."<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref><section end=AU_2020 state responsibility />
   
==[[Sovereignty]]==
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==Sovereignty==
 
<section begin=AU_2020 sovereignty />
 
<section begin=AU_2020 sovereignty />
 
"To the extent that a State enjoys the right to exercise sovereignty over objects and activities within its territory, it necessarily shoulders corresponding responsibilities to ensure those objects and activities are not used to harm other States."<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref><section end=AU_2020 sovereignty />
 
"To the extent that a State enjoys the right to exercise sovereignty over objects and activities within its territory, it necessarily shoulders corresponding responsibilities to ensure those objects and activities are not used to harm other States."<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref><section end=AU_2020 sovereignty />
   
==[[Due diligence]]==
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==Due diligence==
 
<section begin=AU_2020 due diligence />
 
<section begin=AU_2020 due diligence />
 
"To the extent that a State enjoys the right to exercise sovereignty over objects and activities within its territory, it necessarily shoulders corresponding responsibilities to ensure those objects and activities are not used to harm other States. In this context, we note it may not be reasonable to expect (or even possible for) a State to prevent all malicious use of ICT infrastructure located within its territory. However, in Australia's view, if a State is aware of an internationally wrongful act originating from or routed through its territory, and it has the ability to put an end to the harmful activity, that State should take reasonable steps to do so consistent with international law."<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref><section end=AU_2020 due diligence />
 
"To the extent that a State enjoys the right to exercise sovereignty over objects and activities within its territory, it necessarily shoulders corresponding responsibilities to ensure those objects and activities are not used to harm other States. In this context, we note it may not be reasonable to expect (or even possible for) a State to prevent all malicious use of ICT infrastructure located within its territory. However, in Australia's view, if a State is aware of an internationally wrongful act originating from or routed through its territory, and it has the ability to put an end to the harmful activity, that State should take reasonable steps to do so consistent with international law."<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref><section end=AU_2020 due diligence />
   
==[[Attribution]]==
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==Attribution==
 
<section begin=AU_2020 attribution />
 
<section begin=AU_2020 attribution />
 
"Australia will, in its sole discretion, and based on its own judgement, attribute unlawful cyber activities to another State. In making such decisions, Australia relies on the assessments of its law enforcement and intelligence agencies, and consultations with its international partners. A cyber activity will be attributable to a State under international law where, for example, the activity was conducted by an organ of the State; by persons or entities exercising elements of governmental authority; or by non-State actors operating under the direction or control of the State."<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref><section end=AU_2020 attribution />
 
"Australia will, in its sole discretion, and based on its own judgement, attribute unlawful cyber activities to another State. In making such decisions, Australia relies on the assessments of its law enforcement and intelligence agencies, and consultations with its international partners. A cyber activity will be attributable to a State under international law where, for example, the activity was conducted by an organ of the State; by persons or entities exercising elements of governmental authority; or by non-State actors operating under the direction or control of the State."<ref>[https://www.internationalcybertech.gov.au/our-work/annexes/annex-b Australian Government, Australia's position on how international law applies to State conduct in cyberspace]</ref><section end=AU_2020 attribution />
   
==[[Countermeasures]]==
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==Countermeasures==
 
<section begin=AU_2020 countermeasures />
 
<section begin=AU_2020 countermeasures />
 
"If a State is a victim of malicious cyber activity, which is attributable to a perpetrator State, the victim-State may be able to take countermeasures (whether in cyberspace or through another means) under certain circumstances. Countermeasures are measures, which would otherwise be unlawful, taken to secure cessation of, or reparation for, the other State's unlawful conduct.
 
"If a State is a victim of malicious cyber activity, which is attributable to a perpetrator State, the victim-State may be able to take countermeasures (whether in cyberspace or through another means) under certain circumstances. Countermeasures are measures, which would otherwise be unlawful, taken to secure cessation of, or reparation for, the other State's unlawful conduct.

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