National position of Kenya (2021)

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Introduction

This is the national position of Kenya on international law applicable to cyberspace. The position [1] has been submitted by Kenya and included within the official UNGGE compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States.[2]. The compendium has been publicly released in August 2021.[3]

Applicability of international law

"For more than half a century, information and communication technology (ICT) has been international in its creation, reach, use and misuse. Therefore, States have recognized the need to create effective and sustainable frameworks to guide the use of ICTs in the context of international security.

The applicability of International Law towards this effort was first formally stated in Article 19 of the 2013 of the United Nations Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (UNGGE) which states that “International law, and in particular the Charter of the United Nations, is applicable and is essential to maintaining peace and stability and promoting an open, secure, peaceful and accessible ICT environment.” The 2015 report of the same group went further in Article 25 and emphasized the role of International law as an essential framework for actions in the use of ICTs. As a member of the UNGGE since 2014, and the United Nations General Assembly (UNGA) that has consistently endorsed the reports presented through the UN Secretary General and recommended that States should implement the recommendations of each report, the Republic of Kenya concurs that international law provides critical guidance for the use of ICTs."[4]

Peaceful settlement of disputes

"Kenya recognizes that International Law has many functions. Among the primary functions is to create an agreed context and standard of action and behaviour among States, to maintain order in international issues, to minimize the occurrence of international conflicts and disputes, and, where they occur, to assist in their resolution, and lastly, to protect the sovereign liberties and rights of States."[5]

"The UN Charter forms a strong foundation for the interpretation of existing international laws underlined by inter alia the principles of State sovereignty, sovereign equality, and settlement of international disputes by peaceful means. It is the Charter’s emphasis on these principles that is fully aligned with Kenya’s peaceful stance in international affairs."[6]

Sovereignty

"The UN Charter forms a strong foundation for the interpretation of existing international laws underlined by inter alia the principles of State sovereignty, sovereign equality, and settlement of international disputes by peaceful means. It is the Charter’s emphasis on these principles that is fully aligned with Kenya’s peaceful stance in international affairs."[7]

International human rights law

"Kenya notes that there is a strong body of International Law which can be applied in the context of ICTs including Human Rights Law based on the Universal Declaration of Human Rights, International Humanitarian Law (recognizing that, unfortunately, not only can ICTs become a source of conflict, but they are increasingly both used and developed during conflicts between States) and Customary International Law. All these laws should be studied and analyzed in a fair, open, peace-loving and balanced manner in order to adopt a utilitarian body of International Law that guides the use of information and communication technology in the context of international security." [8]

International humanitarian law (jus in bello)

"Kenya notes that there is a strong body of International Law which can be applied in the context of ICTs including Human Rights Law based on the Universal Declaration of Human Rights, International Humanitarian Law (recognizing that, unfortunately, not only can ICTs become a source of conflict, but they are increasingly both used and developed during conflicts between States) and Customary International Law. All these laws should be studied and analyzed in a fair, open, peace-loving and balanced manner in order to adopt a utilitarian body of International Law that guides the use of information and communication technology in the context of international security." [9]

Appendixes

See also

Notes and references

  1. 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.
  2. 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.
  3. UNODA, Group of Governmental Experts on Advancing responsible State behaviour in cyberspace in the context of international security
  4. 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, 52-53.
  5. 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, 53.
  6. 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, 54.
  7. 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, 54.
  8. 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, 54.
  9. 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, 54.

Bibliography and further reading