Editing National position of Brazil (2021)

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sovereignty, including by means of ICTs.
 
sovereignty, including by means of ICTs.
   
Violations of State sovereignty by another State, including by means of ICTs, constitute an internationally wrongful act and entail the international responsibility of the State in violation. Interceptions of telecommunications, for instance, whether or not they are considered to have crossed the threshold of an intervention in the internal affairs of another State, would nevertheless be considered an internationally wrongful act because they violate state sovereignty. Similarly, cyber operations against information systems located in another State’s territory or causing extraterritorial effects might also constitute a breach of sovereignty."<ref>[https://front.un-arm.org/wp-content/uploads/2021/08/A-76-136-EN.pdf 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.</ref><section end=BR_2021 sovereignty />
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Violations of State sovereignty by another State, including by means of ICTs, constitute an internationally wrongful act and entail the international responsibility of the State in violation. Interceptions of telecommunications, for instance, whether or not they are considered to have crossed the threshold of an intervention in the internal affairs of another State, would nevertheless be considered an internationally wrongful act because they violate state sovereignty. Similarly, cyber operations against information systems located in another State’s territory or causing extraterritorial effects might also constitute a breach of sovereignty."<ref>[https://front.un-arm.org/wp-content/uploads/2021/08/A-76-136-EN.pdf 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.</ref>
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<section end=BR_2021 sovereignty />
   
 
==[[Prohibition of intervention]]==
 
==[[Prohibition of intervention]]==
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To violate the principle of non-intervention, the malicious use of ICTs against another State must involve an element of coercion affecting the right of the victim State to freely choose its political, economic, social and cultural system, and to formulate its foreign policy. If attributable to a State, this breach entails this State’s international responsibility.
 
To violate the principle of non-intervention, the malicious use of ICTs against another State must involve an element of coercion affecting the right of the victim State to freely choose its political, economic, social and cultural system, and to formulate its foreign policy. If attributable to a State, this breach entails this State’s international responsibility.
   
There has been a growing discussion on whether cyberoperations aimed at interfering in the electoral processes of another State could amount to violations of the principle of non-intervention. Considering that elections are at the core of a State’s internal affairs, should the malicious use of ICTs against a State involve some level of coercion, then it must be prohibited by the principle of non-intervention."<ref>[https://front.un-arm.org/wp-content/uploads/2021/08/A-76-136-EN.pdf 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], 18-19.</ref><section end=BR_2021 prohibition of intervention />
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There has been a growing discussion on whether cyberoperations aimed at interfering in the electoral processes of another State could amount to violations of the principle of non-intervention. Considering that elections are at the core of a State’s internal affairs, should the malicious use of ICTs against a State involve some level of coercion, then it must be prohibited by the principle of non-intervention."<ref>[https://front.un-arm.org/wp-content/uploads/2021/08/A-76-136-EN.pdf 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], 18-19.</ref>
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<section end=BR_2021 prohibition of intervention />
   
 
==[[Use of force]]==
 
==[[Use of force]]==
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The United Nations Charter does not refer to specific weapons or other means of use of force, and therefore the legal prohibition applies to all of them. Cyber operations may amount to an illegal use of force if they are attributable to a State and if their impact is similar to the impact of a kinetic attack. It is generally understood that, to date, no state has claimed that the rule prohibiting the use of force was violated due to the conduction of a cyberattack. The lack of such a precedent only reinforces the need for caution when making analogies between cyber and kinetic actions in assessments related to jus ad bellum.
 
The United Nations Charter does not refer to specific weapons or other means of use of force, and therefore the legal prohibition applies to all of them. Cyber operations may amount to an illegal use of force if they are attributable to a State and if their impact is similar to the impact of a kinetic attack. It is generally understood that, to date, no state has claimed that the rule prohibiting the use of force was violated due to the conduction of a cyberattack. The lack of such a precedent only reinforces the need for caution when making analogies between cyber and kinetic actions in assessments related to jus ad bellum.
   
General Assembly Resolution 3314(XXIX), which contains the definition of aggression, enumerates a series of acts that qualify as such: invasion of territory by armed forces, military occupation, bombardments or the use of any weapons against the territory of another state, blockade of the ports or coasts by the armed forces, among others. Although it is not binding, GA Res 3314(XXIX) has been considered highly authoritative and has guided the ICJ in its caselaw. In many instances, it might prove difficult to establish a direct analogy between the acts listed in GA Res 3314 (XXIX) and cyber operations, due to their unique characteristics. Therefore, it is advisable to update the multilateral understanding of which acts amount to the use of force and aggression, so as to include instances of cyberattacks. While it might be challenging to find consensus on grey areas, such as the characterization of digital attacks with no direct physical effects, there are points of convergence that should be consolidated multilaterally to provide more clarity and legal certainty."<ref>[https://front.un-arm.org/wp-content/uploads/2021/08/A-76-136-EN.pdf 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], 19.</ref><section end=BR_2021 use of force />
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General Assembly Resolution 3314(XXIX), which contains the definition of aggression, enumerates a series of acts that qualify as such: invasion of territory by armed forces, military occupation, bombardments or the use of any weapons against the territory of another state, blockade of the ports or coasts by the armed forces, among others. Although it is not binding, GA Res 3314(XXIX) has been considered highly authoritative and has guided the ICJ in its caselaw. In many instances, it might prove difficult to establish a direct analogy between the acts listed in GA Res 3314 (XXIX) and cyber operations, due to their unique characteristics. Therefore, it is advisable to update the multilateral understanding of which acts amount to the use of force and aggression, so as to include instances of cyberattacks. While it might be challenging to find consensus on grey areas, such as the characterization of digital attacks with no direct physical effects, there are points of convergence that should be consolidated multilaterally to provide more clarity and legal certainty."<ref>[https://front.un-arm.org/wp-content/uploads/2021/08/A-76-136-EN.pdf 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], 19.</ref>
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<section end=BR_2021 use of force />
   
 
==[[Self-defence|Self-defence, armed attack and use of force]]==
 
==[[Self-defence|Self-defence, armed attack and use of force]]==
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Moreover, self-defense should be a temporary remedy. Member states that exercise their right to self-defense must immediately report it to the Security Council, in line with article 51 of the Charter. Given the novelty of cyberattacks and the uncertainties related to it, reporting to the Security Council is even more important. As the ICJ highlighted, “the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self defense”. Once the incident is reported to the Security Council, it is expected that the temporary act of self-help is replaced by collective action, adopted and pursued in line with the UN Charter.
 
Moreover, self-defense should be a temporary remedy. Member states that exercise their right to self-defense must immediately report it to the Security Council, in line with article 51 of the Charter. Given the novelty of cyberattacks and the uncertainties related to it, reporting to the Security Council is even more important. As the ICJ highlighted, “the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self defense”. Once the incident is reported to the Security Council, it is expected that the temporary act of self-help is replaced by collective action, adopted and pursued in line with the UN Charter.
   
For Brazil, the right to self-defense exists once there is an actual or imminent armed attack. Under international law, there is no right to “preventive self-defense” - a notion that does not find legal grounds neither in art. 51 of the Charter nor in customary international law. Finally, as with responses to armed activities using conventional weapons, self-defense against armed attacks caused by digital means must be necessary and proportionate."<ref>[https://front.un-arm.org/wp-content/uploads/2021/08/A-76-136-EN.pdf 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], 20.</ref><section end=BR_2021 self-defence, armed attack and use of force />
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For Brazil, the right to self-defense exists once there is an actual or imminent armed attack. Under international law, there is no right to “preventive self-defense” - a notion that does not find legal grounds neither in art. 51 of the Charter nor in customary international law. Finally, as with responses to armed activities using conventional weapons, self-defense against armed attacks caused by digital means must be necessary and proportionate."<ref>[https://front.un-arm.org/wp-content/uploads/2021/08/A-76-136-EN.pdf 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], 20.</ref>
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<section end=BR_2021 self-defence, armed attack and use of force />
   
 
==[[State responsibility]]==
 
==[[State responsibility]]==
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"Brazil agrees with the basic principle according to which “every internationally wrongful act of a State entails the international responsibility of that State”. This is a customary norm that has been confirmed by international tribunals on several occasions and that has been codified by the International Law Commission (ILC). According to customary international law, as codified by the ILC, an internationally wrongful act is an action or omission that is attributable to a state and constitutes a breach of its international obligations. By analogy, if a cyber operation attributable to a state breaches its international obligations, the state is responsible for this internationally wrongful act.
 
"Brazil agrees with the basic principle according to which “every internationally wrongful act of a State entails the international responsibility of that State”. This is a customary norm that has been confirmed by international tribunals on several occasions and that has been codified by the International Law Commission (ILC). According to customary international law, as codified by the ILC, an internationally wrongful act is an action or omission that is attributable to a state and constitutes a breach of its international obligations. By analogy, if a cyber operation attributable to a state breaches its international obligations, the state is responsible for this internationally wrongful act.
   
While many norms on state responsibility are generally considered customary international law, as reflected in the articles emanated from the ILC, there are other rules whose legal status is still unclear. The General Assembly took note of the ILC articles on state responsibility for internationally wrongful acts in its Resolution 56/83 of 2001. It has also commended the articles to the attention of governments without prejudice to the question of their future adoption. The ILC articles on state responsibility have been under consideration of the General Assembly for 18 years, and the debates on this issue at its Sixth Committee demonstrate that states have divergent views on their legal status."<ref>[https://front.un-arm.org/wp-content/uploads/2021/08/A-76-136-EN.pdf 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], 20-21.</ref><section end=BR_2021 state responsibility />
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While many norms on state responsibility are generally considered customary international law, as reflected in the articles emanated from the ILC, there are other rules whose legal status is still unclear. The General Assembly took note of the ILC articles on state responsibility for internationally wrongful acts in its Resolution 56/83 of 2001. It has also commended the articles to the attention of governments without prejudice to the question of their future adoption. The ILC articles on state responsibility have been under consideration of the General Assembly for 18 years, and the debates on this issue at its Sixth Committee demonstrate that states have divergent views on their legal status."<ref>[https://front.un-arm.org/wp-content/uploads/2021/08/A-76-136-EN.pdf 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], 20-21.</ref>
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<section end=BR_2021 state responsibility />
   
 
==[[Attribution]]==
 
==[[Attribution]]==
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"States and international courts have consistently recognized some of the ILC articles on state responsibility as customary international law, such as the rules for attribution. In the absence of any lex specialis for cyberspace, the customary norms concerning the attribution of conduct to a State are also applicable to the State’s use of ICTs. Hence, cyber operations are attributable to a State if they are conducted by a State organ, by persons or entities exercising elements of governmental authority, or by persons or groups “acting on the instructions of, or under the direction or control of,” the State. Regarding the latter criteria, for a private person or entity’s conduct be attributable to a State, it has to be proved that the state had “effective control” over the operations. It is clear, therefore, that a connection “must exist between the conduct of a [state] and its international responsibility.”
 
"States and international courts have consistently recognized some of the ILC articles on state responsibility as customary international law, such as the rules for attribution. In the absence of any lex specialis for cyberspace, the customary norms concerning the attribution of conduct to a State are also applicable to the State’s use of ICTs. Hence, cyber operations are attributable to a State if they are conducted by a State organ, by persons or entities exercising elements of governmental authority, or by persons or groups “acting on the instructions of, or under the direction or control of,” the State. Regarding the latter criteria, for a private person or entity’s conduct be attributable to a State, it has to be proved that the state had “effective control” over the operations. It is clear, therefore, that a connection “must exist between the conduct of a [state] and its international responsibility.”
   
The technical difficulties in tracing cyber operations and in determining its authorship may lead to additional challenges in attributing an internationally wrongful act to a State. However, these added difficulties must not serve as a justification to lower the bar for determinations on attribution, which must be substantiated."<ref>[https://front.un-arm.org/wp-content/uploads/2021/08/A-76-136-EN.pdf 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.</ref><section end=BR_2021 attribution />
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The technical difficulties in tracing cyber operations and in determining its authorship may lead to additional challenges in attributing an internationally wrongful act to a State. However, these added difficulties must not serve as a justification to lower the bar for determinations on attribution, which must be substantiated."<ref>[https://front.un-arm.org/wp-content/uploads/2021/08/A-76-136-EN.pdf 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.</ref>
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<section end=BR_2021 attribution />
   
 
==[[Countermeasures]]==
 
==[[Countermeasures]]==
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Particularly on ICTs, there are many factors advising a cautious approach on countermeasures. First, there is an added difficulty to attribute cyber activities to a particular State, which is aggravated by the fact that States have different technical resources and capabilities to both identify the origins of a cyber activity and to verify claims of breaches of international obligations through cyber means. Second, cyber operations can be designed to mask or spoof the perpetrator, which in turns increase the risks of miscalculated responses against innocent actors. Finally, the speed with which the precipitating wrongful cyber operations may unfold poses a high risk of escalation, with potential rippling effects to the kinetic domain.
 
Particularly on ICTs, there are many factors advising a cautious approach on countermeasures. First, there is an added difficulty to attribute cyber activities to a particular State, which is aggravated by the fact that States have different technical resources and capabilities to both identify the origins of a cyber activity and to verify claims of breaches of international obligations through cyber means. Second, cyber operations can be designed to mask or spoof the perpetrator, which in turns increase the risks of miscalculated responses against innocent actors. Finally, the speed with which the precipitating wrongful cyber operations may unfold poses a high risk of escalation, with potential rippling effects to the kinetic domain.
   
With this in mind, Brazil considers that there needs to be further discussions on the legality of countermeasures as a response to internationally wrongful acts, including in the cyber context. The discussions must fully take into account the UN Charter in its entirety, thus excluding from the outset any possibility of using force as a countermeasure – a view that has already been confirmed by the ILC. The priority of peaceful settlement of disputes, in line with articles 2(3) and 33 of the UN Charter, must also be reaffirmed."<ref>[https://front.un-arm.org/wp-content/uploads/2021/08/A-76-136-EN.pdf 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.</ref><section end=BR_2021 countermeasures />
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With this in mind, Brazil considers that there needs to be further discussions on the legality of countermeasures as a response to internationally wrongful acts, including in the cyber context. The discussions must fully take into account the UN Charter in its entirety, thus excluding from the outset any possibility of using force as a countermeasure – a view that has already been confirmed by the ILC. The priority of peaceful settlement of disputes, in line with articles 2(3) and 33 of the UN Charter, must also be reaffirmed."<ref>[https://front.un-arm.org/wp-content/uploads/2021/08/A-76-136-EN.pdf 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.</ref>
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<section end=BR_2021 countermeasures />
   
 
==[[International humanitarian law (jus in bello)|International humanitarian law (''jus in bello'')]]==
 
==[[International humanitarian law (jus in bello)|International humanitarian law (''jus in bello'')]]==
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[...]
 
[...]
   
In any event, where IHL is silent or ambiguous, the “Martens clause” remains applicable, ensuring that, in cases not covered by existing rules, “civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience”."<ref>[https://front.un-arm.org/wp-content/uploads/2021/08/A-76-136-EN.pdf 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], 23.</ref><section end=BR_2021 IHL />
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In any event, where IHL is silent or ambiguous, the “Martens clause” remains applicable, ensuring that, in cases not covered by existing rules, “civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience”."<ref>[https://front.un-arm.org/wp-content/uploads/2021/08/A-76-136-EN.pdf 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], 23.</ref>
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<section end=BR_2021 IHL />
   
 
==[[Attack (international humanitarian law)|Attack (international humanitarian law)]]==
 
==[[Attack (international humanitarian law)|Attack (international humanitarian law)]]==
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==[[Legal review of cyber weapons]]==
 
==[[Legal review of cyber weapons]]==
 
<section begin=BR_2021 legal review of cyber weapons />
 
<section begin=BR_2021 legal review of cyber weapons />
"[..] according to AP I, States have an obligation, “in the study, development, acquisition or adoption of a new weapon, means or method of warfare,” to “determine whether its employment would, in some or all circumstances,” be prohibited. This norm, although being less strict than some States wished during the negotiations of AP I, already encompasses some precautionary elements. It must guide the development, acquisition and adoption of cyber capabilities."<ref>[https://front.un-arm.org/wp-content/uploads/2021/08/A-76-136-EN.pdf 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], 23.</ref><section end=BR_2021 legal review of cyber weapons />
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"[..] according to AP I, States have an obligation, “in the study, development, acquisition or adoption of a new weapon, means or method of warfare,” to “determine whether its employment would, in some or all circumstances,” be prohibited. This norm, although being less strict than some States wished during the negotiations of AP I, already encompasses some precautionary elements. It must guide the development, acquisition and adoption of cyber capabilities."<ref>[https://front.un-arm.org/wp-content/uploads/2021/08/A-76-136-EN.pdf 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], 23.</ref>
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<section end=BR_2021 legal review of cyber weapons />
   
 
== Appendixes ==
 
== Appendixes ==

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