Scenario 02: Cyber espionage against government departments

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A military unit of State B conducts a cyber espionage operation against State A’s Ministry of Foreign Affairs and its subordinate organizations. The data obtained in this operation is later published on the Internet.

The analysis considers whether State B’s operation violated diplomatic and consular law, sovereignty, and the prohibition of intervention.


Scenario

Keywords

Cyber espionage, diplomatic and consular law, State responsibility, sovereignty, prohibited intervention

Facts

State A discovers that a mail server and several other servers belonging to its Ministry of Foreign Affairs (MFA) have been infiltrated. Investigation shows that the intruders gained access to the mail server by obtaining passwords of several consular officers at State A’s missions abroad through spear phishing and fake log-on websites (incident 1).

After gaining access, the intruders escalated their privileges and moved laterally through the network. Within a few days, they gained access to other servers and services. They had access to data of various MFA personnel including senior officials for several months (incident 2).

A vast amount (over 10 GB) of unclassified data was exfiltrated, even though it is not immediately clear what precise data was affected by the incident (incident 3). No data was destroyed or encrypted.

Nobody claims responsibility for the attack immediately after the discovery of the incident. However, a few days later, emails, procurement documents, and internal memos purportedly belonging to the MFA of State A are published on the Internet. (incident 4).

Judging by the nature of the compromised data and by persons that were apparently of particular interest to the attackers, the attackers seem to have been located in or related to State B. Technical investigation suggests that the malware tools used were in the past employed by an entity affiliated with a military unit of State B. Following requests for information addressed to various CERTs around the world, State A’s authorities establish that similar attacks have been executed against central government institutions in several other countries. Earlier on, head of an allied intelligence service in State C had publicly accused State B of a cyber espionage campaign conducted by the above military unit against that State C’s MFA.

Both State A and State B are parties to the Vienna Convention on Diplomatic Relations (VCDR)[1] and the Vienna Convention on Consular Relations (VCCR).[2]

Similar real-world incidents

NB: Links in this section will go to separate pages for each of these incidents within the toolkit (for demonstration purposes only, they now link to Wikipedia pages on those topics).

  • APT-29 attacks on ministries in 2016-2017
  • OPM hack

Legal analysis

The legal analysis focuses on the law of State responsibility, taking into account the sovereignty of State A, prohibition of intervention, and diplomatic and consular law as the applicable lex specialis.

International humanitarian law is not analysed in detail. There is no ongoing armed conflict, nor do the incidents trigger the application of international humanitarian law. They do not amount to a use of force or an armed attack, because they are not severe enough to be comparable to a ‘physical’ use of force.

State responsibility

Definition

State responsibility
State responsibility.svg
Responsibility of States for internationally wrongful acts is a well-established concept in international law, resulting from the fact that each State has a legal personality and can bear legal obligations.[3] The law of State responsibility is largely customary in nature; its codification is provided by the Draft Articles on the Responsibility of States for Internationally Wrongful Acts.[4] While some of the Articles are more controversial, they are generally accepted as reflective of customary law.[5] The law of State responsibility also applies to cyber operations and other cyber activities.[6]

Every internationally wrongful act of a State has two elements: 1) attributability to the State under international law, and 2) breach of an international obligation of the State.[7]Besides these two elements, it is necessary to ascertain whether the act in question involved any 3) circumstances precluding wrongfulness.[8]

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 Estonia (2019) (2019), National position of Estonia (2021) (2021), National position of Finland (2020) (2020), National position of France (2019) (2019), National position of the Italian Republic (2021) (2021), National position of Japan (2021) (2021), National position of New Zealand (2020) (2020), National position of Norway (2021) (2021), National position of Romania (2021) (2021), National position of the Russian Federation (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 (2021) (2021).

National positions

Australia (2020)

"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."[9]

Brazil (2021)

"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."[10]

Canada (2022)

"28. The international law of State responsibility applies across the whole spectrum of substantive areas of international law, including in cyberspace. It governs such issues as the attribution of internationally wrongful acts to States. It also addresses circumstances precluding wrongfulness, including countermeasures, and possible remedies. The law of State responsibility is not concerned with the legality of the use of force, including in self-defence, which is a separate area of international law.

29. In Canada’s view, this well-established body of international law is not only applicable, but highly relevant in relation to contemporary cyber activities. To date, all publicly known malicious cyber activities have been widely interpreted by States as falling below the threshold (or thresholds) of the threat or use of force or armed attacks."[11]

"30. An internationally wrongful act in the cyber context is a cyber-related action or omission that: constitutes a breach of an international legal obligation, whether to another State or the entire international community; and is attributable to a State under international law.

31. International law recognises exceptions to what would otherwise be internationally wrongful acts. Examples include cases of self-defence and countermeasures."[12]

Estonia (2019)

"[...] states are responsible for their activities in cyberspace. Sovereignty entails not only rights, but also obligations. States are responsible for their internationally wrongful cyber operations just as they would be responsible for any other activity based on international treaties or customary international law. This is the case whether or not such acts are carried out by state organs or by non-state actors supported or controlled by the state. States cannot waive their responsibility by carrying out malicious cyber operations via non-state actors. If a cyber operation violates international law, this needs to be called out."[13]

Estonia (2021)

The law of state responsibility is a cornerstone for responsible state behaviour in cyberspace when it comes to assessing the unlawfulness of cyber operations below the threshold of use of force.

"The law of state responsibility includes key principles that govern when and how a state is held responsible for cyber operations that constitute a breach of international obligation, by either an act or an omission. A cyber operation can constitute an internationally wrongful act if it is attributable under international law and it constitutes a breach of international obligation under the law of state responsibility. States must comply with customary international law mirrored in the Articles for Responsibility of States for Internationally Wrongful Acts.

States are responsible for their activities in cyberspace. States are accountable for their internationally wrongful cyber operations just as they would be responsible for any other activity according to international treaties or customary international law. State responsibility applies regardless of whether such acts are carried out by a state or non-state actors instructed, directed or controlled by a state.

States cannot waive their responsibility by carrying out malicious cyber operations via non-state actors and proxies. For example, if a hacker group launches cyber operations which have been tailored according to instructions from a state, or the cyber operations are directed or controlled by that state, state responsibility can be established."[14]

"In order to enforce state responsibility, states maintain all rights to respond to malicious cyber operations in accordance with international law. If a cyber operation is unfriendly or violates international law obligations, injured states have the right to take measures such as retorsions, countermeasures or, in case of an armed attack, the right to self-defence. These measures can be either individual or collective. The main aim of reactive measures in response to a malicious cyber operation is to ensure responsible state behaviour in cyberspace and the peaceful use of ICTs."[15]

Finland (2020)

"The law of State responsibility consists of secondary rules that apply generally in the absence of clear specific rules that modify their effect. As there is no specific regulation concerning State activities in cyberspace that would constitute such lex specialis, it can be concluded that the normal rules of State responsibility apply in cyberspace. When a State’s cyber operation violates its obligations under international law, it constitutes an internationally wrongful act. An internationally wrongful act of a State entails its international responsibility and gives rise to an obligation to make full reparation for the damage that may be caused by the act. This requires that the act is attributable to the State. The rules of attribution reflected in the UN International Law Commission’s Articles on State Responsibility remain fully valid in cyberspace."

"If State organs, or private groups or individuals acting on behalf of the State, can be identified as the authors of a cyber operation that violates the State’s international obligations, its international responsibility is engaged."[16]

France (2019)

"A cyberattack is deemed to have been instigated by a State if it has been perpetrated by a State organ, a person or entity exercising elements of governmental authority, or a person or group of persons acting on the instructions of, or under the direction or control of that State."[17]

Italy (2021)

"Italy concurs with the view that attribution of cyber wrongful acts from one State to another is governed by the general rules of international law on the attribution of State conduct as codified by the International Law Commission (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). Still, Italy acknowledges the difficulties of applying the ARSIWA in a peculiar environment such as cyberspace."[18]

Japan (2021)

"Internationally wrongful acts committed by a State in cyberspace entail State responsibility. An internationally wrongful act occurs when the conduct of a State consisting of an action or omission violates an obligation prescribed by primary rules of international law. In the case of cyber operations as well, there is an internationally wrongful act when a State violates primary rules, including the principles of sovereignty, non-intervention, prohibition of the use of force, as well as various principles of international humanitarian law such as the principle of prohibition of attacks on civilian objects, and respect for basic human rights."[19]

"Regarding cyber operations as well, a State responsible for an internationally wrongful act is under the following obligations. First, the State shall cease the act if it is continuing. In addition, the State shall offer appropriate assurances and guarantees of non-repetition, if circumstances so require. Besides, the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act."[20]

New Zealand (2020)

"Where a state is subject to cyber activity that amounts to an internationally wrongful act, it may also invoke the international legal responsibility of the responsible state. States are responsible for internationally wrongful acts that can be attributed to them, including wrongful cyber activities. An internationally wrongful act can be attributed to a state if it was carried out by organs of the state, persons or entities empowered to exercise elements of governmental authority on behalf of that state, or agents acting on the instructions of, or under the direction or control of the state; or where the state acknowledges and adopts the act as its own. States may also be internationally responsible for aiding or assisting internationally wrongful cyber activity carried out by another state."[21]

Norway (2021)

Key message
In order for a State to be held internationally responsible for a cyber operation, the operation has to be attributable to the State under international law.

A State may also be held responsible under international law if it possesses knowledge of a cyber operation that is being carried out from its territory and causing serious adverse consequences with respect to a right of the target State under international law, and fails to take reasonably available measures to terminate the cyber operation.

"The general rules on State responsibility under international law apply to cyber operations just as they apply to other activities.

In order for a State to be held responsible for a cyber operation under international law, it is a condition that the cyber operation is attributable to the State under international law. Both State and non-State actors conduct cyber operations. Even if a cyber operation is not conducted by someone acting directly or indirectly on behalf of a State, the State may nevertheless be held responsible under international law if it fails to take adequate measures against cyber operations that target third States from or via its territory."[22]

Romania (2021)

"There is an internationally wrongful act of a State when conduct consisting of an action or omission is:

  • attributable to the State under international law; and
  • constitutes a breach of an international obligation of the State

Therefore, from the perspective of state responsibility under international law, attribution is one of the components.[23]

Russia (2021)

"Under customary international law, a State is responsible for activities of its institutions, as well as that of individuals acting under its control. In information space it may be difficult to determine whether an individual is acting under control of a State or with its acquiescence. In this regard, it becomes increasingly relevant to formalize the norm of the 2015 GGE report stating that all accusations of organizing and implementing wrongful acts brought against States should be substantiated, as legally binding. In any case, one should refrain from publicly imposing responsibility for an incident in information space on a particular State without supplying necessary technical evidence."[24]

Sweden (2022)

"An internationally wrongful act by a State entails the responsibility of that State under international law. The articles on State responsibility drafted by the International Law Commission constitute secondary norms of international law, identifying conditions when a State is internationally responsible for wrongful acts and the effects thereof. The general norms on State responsibility apply also in relation to wrongful acts in the cyber context.

Technical difficulties pose new challenges in identifying those responsible for cyber operations, compared with kinetic operations, but the rules on attribution under the law of State responsibility also apply in a cyber context. Cyber operations conducted by State organs are attributed to the State, as are cyber operations conducted by persons empowered to exercise elements of governmental authority if acting in that particular capacity. A State is normally not responsible for the conduct of individuals not empowered to exercise governmental authority. However, in situations where non-state actors act on the instructions or under the direction or control of a State, that conduct is attributed to the State. Conduct not attributed to a State may nevertheless be considered an act of that State if that State acknowledges and adopts the conduct as its own."[25]

Switzerland (2021)

"The customary international rules on state responsibility are largely reflected in the draft articles issued by International Law Commission. They are also applicable to cyber incidents. They provide that any state action in violation of international law shall entail the international responsibility of that state, upon which a claim for full reparation may be made. This only applies if the action can be legally attributed to the state and is deemed to constitute an internationally wrongful act, i.e. in violation of international law."[26]

United Kingdom (2018)

"There are obviously practical difficulties involved in making any attributions of responsibilities when the action concerned is capable of crossing traditional territorial boundaries and sophisticated techniques are used to hide the identity and source of the operation. Those difficulties are compounded by the ready accessibility of cyber technologies and the resultant blurring of lines between the actions of governments and those of individuals.

The international law rules on the attribution of conduct to a state are clear, set out in the International Law Commissions Articles on State Responsibility, and require a state to bear responsibility in international law for its internationally wrongful acts, and also for the acts of individuals acting under its instruction, direction or control.

These principles must be adapted and applied to a densely technical world of electronic signatures, hard to trace networks and the dark web. They must be applied to situations in which the actions of states are masked, often deliberately, by the involvement of non-state actors. And international law is clear - states cannot escape accountability under the law simply by the involvement of such proxy actors acting under their direction and control."[27]

United Kingdom (2021)

"A State is responsible under international law for cyber activities that are attributable to it in accordance with the rules on State responsibility. The responsibility of a State for activities that occur on its territory including in relation to activities in cyberspace is therefore determined in accordance with the rules of international law on State responsibility. As well as bearing responsibility for acts of its organs and agents, a State is also responsible in accordance with international law where, for example, a person or a group of persons acts on its instructions or under its direction or control."[28]

United Kingdom (2022)

"I should also add that the nature of cyberspace means that it may not be evident, at least at first, whether a State is responsible for a particular action. This is also a space in which criminal gangs operate for financial profit. To be clear, State direction or control of non-State actors who undertake cyber operations of the kind I have described today would also represent unlawful conduct by that State, in line with international law on State responsibility. Cyber is no different from other spheres of activity in this sense. Provided that it is exercising the requisite degree of direction or control, a State is no less responsible for internationally unlawful cyber operations conducted by a ransomware gang than it would be for the unlawful actions of an armed group, or a corporation."[29]

United States (2012)

"States are legally responsible for activities undertaken through “proxy actors,” who act on the state’s instructions or under its direction or control. The ability to mask one’s identity and geography in cyberspace and the resulting difficulties of timely, high-confidence attribution can create significant challenges for states in identifying, evaluating, and accurately responding to threats. But putting attribution problems aside for a moment, established international law does address the question of proxy actors. States are legally responsible for activities undertaken through putatively private actors, who act on the state’s instructions or under its direction or control. If a state exercises a sufficient degree of control over an ostensibly private person or group of persons committing an internationally wrongful act, the state assumes responsibility for the act, just as if official agents of the state itself had committed it. These rules are designed to ensure that states cannot hide behind putatively private actors to engage in conduct that is internationally wrongful."[30]

United States (2016)

"From a legal perspective, the customary international law of state responsibility supplies the standards for attributing acts, including cyber acts, to States. For example, cyber operations conducted by organs of a State or by persons or entities empowered by domestic law to exercise governmental authority are attributable to that State, if such organs, persons, or entities are acting in that capacity.

Additionally, cyber operations conducted by non-State actors are attributable to a State under the law of state responsibility when such actors engage in operations pursuant to the State’s instructions or under the State’s direction or control, or when the State later acknowledges and adopts the operations as its own.

Thus, as a legal matter, States cannot escape responsibility for internationally wrongful cyber acts by perpetrating them through proxies. When there is information — whether obtained through technical means or all-source intelligence — that permits a cyber act engaged in by a non-State actor to be attributed legally to a State under one of the standards set forth in the law of state responsibility, the victim State has all of the rights and remedies against the responsible State allowed under international law.

The law of state responsibility does not set forth explicit burdens or standards of proof for making a determination about legal attribution. In this context, a State acts as its own judge of the facts and may make a unilateral determination with respect to attribution of a cyber operation to another State. Absolute certainty is not—and cannot be—required. Instead, international law generally requires that States act reasonably under the circumstances when they gather information and draw conclusions based on that information.

I also want to note that, despite the suggestion by some States to the contrary, there is no international legal obligation to reveal evidence on which attribution is based prior to taking appropriate action. There may, of course, be political pressure to do so, and States may choose to reveal such evidence to convince other States to join them in condemnation, for example. But that is a policy choice—it is not compelled by international law."[31]

United States (2021)

"Both the 2013 and 2015 GGE reports concluded that States must meet their international obligations regarding internationally wrongful acts attributable to them under international law. In addition, they must not use proxies to commit internationally wrongful acts using ICTs.

Under the law of State responsibility, a State is responsible for an internationally wrongful act when there is an act or omission that is attributable to it under international law that constitutes a breach of an international obligation of the State. Cyber activities may therefore constitute internationally wrongful acts under the law of State responsibility if they are inconsistent with an international obligation of the State and are attributable to it."[32]

Appendixes

See also

Notes and references

  1. Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964), 500 UNTS 95.
  2. Vienna Convention on Consular Relations (adopted 24 April 1963, entered into force 19 March 1967), 596 UNTS 261.
  3. James Crawford, “State Responsibility”, in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2008), para 1.
  4. Draft Articles on the Responsibility of States for Internationally Wrongful Acts, prepared by the International Law Commission and approved by the General Assembly resolution 56/83 of 12 December 2001.
  5. James Crawford, “State Responsibility”, in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2008), para 65.
  6. UN GGE 2015 'Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security report' (22 July 2015) UN Doc A/70/174, para 28(f); Tallinn Manual 2.0, commentary to rule 14, para 1. See also, e.g., 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) (‘Japan recognizes that basic rules on State responsibility including those on countermeasures applies to cyberspace.’); Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019) 1 (‘Any violation of [obligations under international law that apply to states in cyberspace] that is attributable to a state constitutes an internationally wrongful act, unless there is a ground for precluding the wrongfulness of an act recognised in international law’); United Kingdom, ‘Statement on Other Disarmament Measures and International Security to the 72nd UNGA First Committee’ (23 October 2017) (‘We reaffirm that the law of state responsibility applies to cyber operations in peacetime’).
  7. Articles on State Responsibility, Art 2.
  8. Articles on State Responsibility, Arts 20-26.
  9. Australian Government, Australia's position on how international law applies to State conduct in cyberspace
  10. 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.
  11. Government of Canada, International Law applicable in cyberspace, April 2022
  12. Government of Canada, International Law applicable in cyberspace, April 2022
  13. President of Estonia: international law applies also in cyber space, 29 May 2019
  14. 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, 27-28.
  15. 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.
  16. International law and cyberspace - Finland's national position
  17. Ministry of Defense of France, International Law Applied to Operations in Cyberspace, 9 September 2019, 10.
  18. Italian position paper on "International law and cyberspace", Italian Ministry for Foreign Affairs and International Cooperation.,5-6.
  19. Ministry of Foreign Affairs of Japan, Basic Position of the Government of Japan on International Law Applicable to Cyber Operations, 16 June 2021, 3-4
  20. Ministry of Foreign Affairs of Japan, Basic Position of the Government of Japan on International Law Applicable to Cyber Operations, 16 June 2021, 4
  21. The Application of International Law to State Activity in Cyberspace, 1 December 2020, 3.
  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, 70.
  23. 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, 78.
  24. 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, 80.
  25. Government Offices of Sweden, Position Paper on the Application of International Law in Cyberspace, July 2022,5
  26. Federal Department of Foreign Affairs, ‘Switzerland's position paper on the application of international law in cyberspace’ (May 2021) 5.
  27. Attorney General Jeremy Wright:Cyber and International Law in the 21st Century, 23 May 2018
  28. United Kingdom Foreign, Commonwealth & Development Office, Application of international law to states’ conduct in cyberspace: UK statement, 3 June 2021
  29. Attorney General Suella Braverman: International Law in Future Frontiers, 19 May 2022
  30. Harold Hongju Koh, International Law in Cyberspace, 18 September 2012, 6-7
  31. Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016 17-20.
  32. 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, 141.

Bibliography and further reading

Attribution

As a rule, the conduct of State organs is attributable to the State in question;[1] by contrast, the conduct of non-State actors or third States’ organs can only be attributed to the State under specific circumstances.[2]

State organs and persons and entities in exercise of governmental authority

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";[3]
  2. 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]
  3. 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."[5]

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).[6]

Non-State actors

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]
  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";[8]
  3. "an insurrectional movement which becomes the new Government of a State";[9] 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".[10]

Additionally,

  1. 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".[11]

Evidentiary standards

Evidentiary standards
Evidentiary standards applicable to the attribution of cyber activities are context-dependent.[12] The law of State responsibility as such does not contain generally applicable burdens, standards, or methods of proof,[13] and these matters are instead ordinarily determined by the relevant forum.[14]

However, in case a State is considering a response to an internationally wrongful act, the standard of attribution is that of "reasonableness", i.e. "States must act as reasonable States would in the same or similar circumstances when considering responses to them."[15] This depends, among other factors, on the "reliability, quantum, directness, nature (e.g., technical data, human intelligence), and specificity of the relevant available information when considered in light of the attendant circumstances and the importance of the right involved."[16] Nevertheless, there is no obligation to publicly provide the evidence.[17]

Specific rules may apply to some responses, so when State A responds with countermeasures after misattributing an internationally wrongful act to State B, it commits an internationally wrongful act of its own, even though it correctly applied the "reasonableness" standard of attribution.[18]

National positions

Australia (2020)

"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."[19]

Brazil (2021)

"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."[20]

Canada (2022)

"32. Canada applies the customary international law on State responsibility to attribute wrongful conduct in cyberspace. Under the law of State responsibility, an important element is that of attribution, which involves the identification of a State as legally responsible for an internationally wrongful act. A State can be responsible directly, or indirectly where a non-State actor has acted on the instructions of, or under the direction or control of, that State.[21] In this respect, States cannot escape legal responsibility for internationally wrongful cyber acts by perpetrating them through non-state actors who act on a State’s instruction or under its direction or control.[22]

33. Attribution in its legal sense is of course distinct from the technical identification (or technical attribution) of the actor responsible for malicious cyber activity, whether State or non-State, as well as from the public denunciation of the responsible actor (political attribution). Further, Canada believes that the public attribution of internationally wrongful acts engages various political considerations beyond technical and legal attribution. To this end, States bear no obligation to publicly provide the basis upon which an attribution is made."[23]

Estonia (2019)

"[...] states have the right to attribute cyber operations both individually and collectively according to international law. Our ability and readiness to effectively cooperate among allies and partners in exchanging information and attributing malicious cyber activities has improved. The opportunities for malicious actors to walk away from their harmful actions with plausible deniability are clearly shrinking. Last year demonstrated that states are able to attribute harmful cyber operations both individually or in a coordinated manner. It is not something unachievable and endlessly complex. At the end of the day what is required from the attributing state, is not absolute certainty but what is reasonable. When assessing malicious cyber operations we can consider technical information, political context, established behavioural patterns and other relevant indicators."[24]

Estonia (2021)

A cyber operation is deemed an internationally wrongful act when it is attributable to a state under international law and involves a breach of an international obligation of the state.

"Attribution remains a national political decision based on technical and legal considerations regarding a certain cyber incident or operation. Attribution will be conducted on a case-by-case basis, and various sources as well as the wider political, security and economic context can be considered.

According to Article 2(a) of ARSIWA, an internationally wrongful act of a state has taken place when the conduct consisting of an action or omission is attributable to a state and the action or omission is wrongful under international law. Attribution allows establishing if a malicious cyber operation is linked with a state in order to invoke the responsibility of that state.

A state as a subject of international law can exercise its rights and obligations through its organs and in some instances by natural and legal persons. The attribution of an internationally wrongful act, including an internationally wrongful cyber operation, requires careful assessment of whether and how malicious activity conducted by a person, a group of persons or legal persons can be considered as the act of a state. In principle, both acts and omissions are attributable to states.

Attribution is closely related to the availability of information of the malicious cyber operation. Following the various necessary assessments, public statements on attribution can be made, with the aim of increasing accountability in cyberspace and emphasising the importance of adhering to international law obligations and norms of responsible state behaviour."[25]

Finland (2020)

"An internationally wrongful act of a State entails its international responsibility and gives rise to an obligation to make full reparation for the damage that may be caused by the act. This requires that the act is attributable to the State. The rules of attribution reflected in the UN International Law Commission’s Articles on State Responsibility remain fully valid in cyberspace. If State organs, or private groups or individuals acting on behalf of the State, can be identified as the authors of a cyber operation that violates the State’s international obligations, its international responsibility is engaged. It is in this regard useful to distinguish identification as a technical operation from attribution as a legal operation. Identification may be technically challenging given the often covert nature of hostile cyber activities but this is without consequence to the legal rules of attribution."

"Public attribution, as a sovereign choice, is primarily a question of political consideration. Public attribution may nevertheless have legal effects to the extent it includes determinations of conduct that constitutes an internationally wrongful act."[26]

France (2019)

"The attribution of a cyberattack having its origin in another State is a national political decision. When a cyberattack is detected, France takes the necessary steps to categorise it, which may include neutralising its effects.

Identification of the instigator is based mainly, though not solely, on technical information gathered during investigations of the cyberattack, especially identification of the attack and transit infrastructure for the cyberoperation and its location, identification of the adversary methods of operation (AMO), the overall chronology of the perpetrator’s activities, the scale and gravity of the incident and the compromised perimeter, or the effects sought by the attacker. This information can help to determine whether or not a link exists between the instigators and a State.

A cyberattack is deemed to have been instigated by a State if it has been perpetrated by a State organ, a person or entity exercising elements of governmental authority, or a person or group of persons acting on the instructions of, or under the direction or control of that State.

The identification of a State as being responsible for a cyberattack that is an internationally unlawful act does not in any way oblige the victim State to make a public attribution. Such attribution is a discretionary choice made, inter alia, according to the nature and origin of the operation, the specific circumstances and the international context. It is a sovereign decision insofar as France reserves the right to attribute publicly, or not, a cyberattack against it and to bring that information to the attention of its population, other States or the international community. This policy does not rule out close coordination with France’s allies and partner States, including international or regional organisations, in particular the European Union (EU) and the North Atlantic Treaty Organisation (NATO). However, while the decision may go as far as collective attribution of a cyberattack, it lies solely with France. In addition, international law does not require States to provide the evidence on which the public attribution of a cyberattack is based, though such information helps to legitimise the validity of such attribution. In all events, a decision not to publicly attribute a cyberattack is not a final barrier to the application of international law, and in particular to assertion of the right of response available to States.

The capabilities of the Armed Forces Ministry contribute to the process of characterising cyber-attacks against the French State. The public attribution of a cyberattack against France is a national political decision. Although this power may be exercised in coordination with other States or international organisations, it is prima facie a sovereign prerogative."[27]

Germany (2021)

"Attributing a cyber incident is of critical importance as a part of holding States responsible for wrongful behaviour and for documenting norm violations in cyberspace. It is also a prerequisite for certain types of responsive action. As regards the attribution of certain acts to States under international law, Germany applies the relevant customary law rules on State responsibility also to acts in cyberspace, subject to any lex specialis provisions. Inter alia, cyber operations conducted by State organs are attributable to the State in question. The same applies with regard to persons or entities which are empowered by the law of a State to exercise elements of the governmental authority and act in that capacity in the particular instance. Attribution is not excluded because such organ, person or entity acting in an official capacity exceeds its authority or contravenes instructions – cyber operations conducted ultra vires are likewise attributable to the State in question. This applies a maiore ad minus when only parts of an operation are ultra vires.

Generally, the mere (remote) use of cyber infrastructure located in the territory of a State (forum State) by another State (acting State) for the implementation of malicious cyber operations by the latter does not lead to an attribution of the acting State’s conduct to the forum State. However, the forum State may under certain circumstances incur responsibility on separate grounds, for example if its conduct with regard to another State’s use of its cyber infrastructure for malicious purposes qualifies as aid or assistance. This inter alia applies if the forum State actively and knowingly provides the acting State with access to its cyber infrastructure and thereby facilitates malicious cyber operations by the other State.

Moreover, cyber operations conducted by non-State actors which act on the instructions of, or under the direction or control of, a State are attributable to that State. The same principles apply as in the physical world: if a State recurs to private actors in order to commit an unlawful deed, the actions by the private actor will regularly be attributable to the State. States should recognize that they are accountable for the actions of proxies acting under their control. The State must have control over a specific cyber operation or set of cyber operations conducted by the non-State actor. While a sufficient degree or intensity of such control is necessary, the State is not required to have detailed insight into or influence over all particulars, especially those of a technical nature, of the cyber operation. A comprehensive assessment of the circumstances of the individual case will be necessary to establish an attributive link.

Beyond the mentioned situations of attribution and aid and assistance, a State may also become liable under international law in connection with another State’s or a non-State actor’s actions if the first State fails to abide by its obligations stemming from the ‘due diligence’ principle.

The application of the international rules on State responsibility and hence the act of formally attributing a malicious cyber operation to a State under international law is first and foremost a national prerogative; however, international cooperation and exchange of information with partners in this regard can be of vital importance. In practice, establishing the facts upon which a decision on attribution may be based is of specific concern in the context of cyber operations since the author of a malicious cyber operation may be more difficult to trace than that of a kinetic operation. At the same time, a sufficient level of confidence for an attribution of wrongful acts needs to be reached. Gathering relevant information about the incident or campaign in question has a technical dimension and may involve processes of data forensics, open sources research, human intelligence and reliance upon other sources – including, where applicable, information and assessments by independent and credible non-state actors. Generating the necessary contextual knowledge, assessing a suspected actor’s motivation for conducting malicious cyber operations and weighing the plausibility of alternative explanations regarding the authorship of a certain malicious cyber act will likewise be part of the process. All relevant information should be considered.

Germany agrees that there is no general obligation under international law as it currently stands to publicize a decision on attribution and to provide or to submit for public scrutiny detailed evidence on which an attribution is based. This generally applies also if response measures are taken. Any such publication in a particular case is generally based on political considerations and does not create legal obligations for the State under international law. Also, it is within the political discretion of a State to decide on the timing of a public act of attribution. Nevertheless, Germany supports the UN Group of Governmental Experts’ position in its 2015 report that accusations of cyber-related misconduct against a State should be substantiated. States should provide information and reasoning and – if circumstances permit – attempt to communicate and cooperate with the State in question to clarify the allegations raised. This may bolster the transparency, legitimacy and general acceptance of decisions on attribution and any response measures taken.

Attribution in the context of State responsibility must be distinguished from politically assigning responsibility for an incident to States or non-State actors: Generally, such statements are made at the discretion of each State and constitute a manifestation of State sovereignty. Acts of politically assigning responsibility may occur in cooperation with partners. As regards attribution in the legal sense, findings of national law-based (court) proceedings involving acts of attribution, for example in the context of criminal liability of certain office holders or non-State actors, may serve as indicators in the process of establishing State responsibility. However, it should be borne in mind that the criteria of attribution under international law do not necessarily correspond to those under domestic law and that additional or specific criteria are generally relevant when establishing State responsibility for individually attributed conduct. Moreover, the adoption of targeted restrictive measures against natural or legal persons, entities or bodies under the EU Cyber Sanctions Regime does not as such imply the attribution of conduct to a State by Germany in a legal sense."[28]

Israel (2020)

"The issue of attribution is also widely debated with respect to cyber operations. Some have suggested that there needs to be more legal certainty with respect to attribution, in order to avoid mistaken attribution, which can lead to conflict escalation. This is increasingly becoming more of a theoretical issue. Over time, the attribution capabilities of States have improved, and even States with lesser capabilities have been able to rely on solid information provided by other States and by the private sector. In any event, this is a technical matter—a factual one—and I would advise against over-regulating the issue.

That being said, there is also the question of public perceptions—because sometimes, when an offensive cyber operation is public, and the attribution is public, the government needs to communicate with its citizens, and with the international community at large, in order for its positions and actions to be understood. But there will be cases when a State will prefer not to disclose the attack, the attribution, or any ensuing actions taken—for diverse reasons such as national security and foreign relations. Either way, as a matter of international law, the choice whether or not to disclose the attribution information remains at the exclusive discretion of the State."[29]

Italy (2021)

"Attributing responsibility of cyber activities is a complex matter which has led to different approaches across the international community.

Italy sees merit in contributing to the international law debate on the matter. Italy deems that attribution is a national sovereign prerogative and so is the decision to make it public or not, on a case-by-case basis.

Italy is aware that attribution entails technical, legal and political considerations. With regard to the attribution of cyber wrongful acts by States, Italy considers that any attribution should be based on a sufficient level of confidence on the source of the cyber activities in question and on the identity of the actor(s) responsible. Although under international law there is no general obligation thereto, Italy stresses the importance of transparency: attribution of cyber wrongful activities should therefore be reasonable and credibly based on factual elements related to relevant circumstances of the case. This would be especially required should attribution become part of international courts and/or arbitration proceedings, with the exception of States’ classified information."[30]

Japan (2021)

"There is an internationally wrongful act of a State when the act is attributable to the State under international law and when the act constitutes a breach of an obligation of the State under international law. There are legal, political and technical aspects in discussing the attribution of conduct to a State with respect to cyber operations.

To invoke State responsibility under international law with respect to any act in cyberspace, it is necessary to consider whether the act is attributable to a specific State. On this topic, Articles 4 to 11 of the ILC’s Articles on State Responsibility provide useful reference. As a general rule, in such cases as a cyber operation conducted by a State organ, the act is considered to be attributable to the State. A cyber operation conducted by a non-State actor is, in principle, not attributable to a State. However, according to Article 8 of the ILC’s Articles on State Responsibility, the conduct of a person or group of persons shall be considered an act of a State if the person or group of persons is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct." [31]

Netherlands (2019)

"For a state to be held responsible under international law for a cyber operation and, by extension, for a target state to be able to take a countermeasure in response,16 it must be possible to attribute the operation to the state in question. Any attribution of cyber operations is always based on a government decision. Special attention is paid to the degree to which the government has information of its own at its disposal or to which it is able to reach an independent conclusion concerning information it has obtained.

In the context of cyberspace, three forms of attribution can be distinguished:

- Technical attribution – a factual and technical investigation into the possible perpetrators of a cyber operation and the degree of certainty with which their identity can be established. - Political attribution – a policy consideration whereby the decision is made to attribute (publicly or otherwise) a specific cyber operation to an actor without necessarily attaching legal consequences to the decision (such as taking countermeasures). The attribution need not necessarily relate to a state; it may also concern a private actor. - Legal attribution – a decision whereby the victim state attributes an act or omission to a specific state with the aim of holding that state legally responsible for the violation of an obligation pursuant to international law.

In the case of legal attribution a distinction must be made between operations carried out by or on behalf of a state and operations carried out by non-state actors. An act by a government body in its official capacity (for example the National Cyber Security Centre) is always attributable to the state. An act by a non-state actor is in principle not attributable to a state. However, the situation changes if a state has effective control over the act or accepts it as its own act after the fact. In such a case, the non-state actor (or ‘proxy’) carries out the operation on the instructions of, or under the direction or control of that state. The threshold for establishing effective control is high. A financial contribution to the activities of a non-state actor, for example, is not sufficient.

In order to attribute a cyber operation it is not required that a state disclose the underlying evidence. Evidence in the legal sense becomes relevant only if legal proceedings are instituted. A state that takes countermeasures or relies on its inherent right of self-defence (see below) in response to a cyber operation may eventually have to render account for its actions, for example if the matter is brought before the International Court of Justice. In such a situation, it must be possible to provide evidence justifying the countermeasure or the exercise of the right of self-defence. This can include both information obtained through regular channels and intelligence.

Under international law there is no fixed standard concerning the burden of proof a state must meet for (legal) attribution, and thus far the International Court of Justice has accepted different standards of proof. The CAVV and the AIV rightly observe as follows in this regard: ‘International law does not have hard rules on the level of proof required but practice and case law require sufficient certainty on the origin of the attack and the identity of the author of the attack before action can be taken.’ In the government’s view, the burden of proof will indeed vary in accordance with the situation, depending on the seriousness of the act considered to be in breach of international law and the intended countermeasures."[32]

New Zealand (2020)

"States should act in good faith and take care when attributing legal responsibility to another state for malicious cyber activity. While international law prescribes no clear evidential standard for attributing legal responsibility for internationally wrongful acts, a victim state must be sufficiently confident of the identity of the state responsible. What constitutes sufficient confidence in any case will depend on the facts and nature of the activity. While any legal attribution should be underpinned by a sound evidential basis, there is no general obligation on the attributing state to disclose that basis. However, a state may choose as a matter of policy to disclose specific information that it considered in making its attribution decision, and may be required to defend any such decision as part of international legal proceedings.[33]

Norway (2021)

"A State may be held responsible under international law for cyber operations conducted by an organ of the State or by actors exercising governmental authority on behalf of the State.

A State may be held responsible under international law for cyber operations conducted by non-State actors if these are conducted on the direct instructions of the State or under its direction or effective control. It may be technically challenging to establish that a relationship between a State and a non-State actor amounts to direct instructions, direction or effective control. However, this is a question of evidence, and not of lack of clarity of international law." [34]

Romania (2021)

"In cyber context, attribution (especially from the technical point of view) of the conduct to a State is difficult to determine given the fact that most of the times the actions are undertaken via proxies.

Therefore, if the conduct is not evident as being of a State organ, then, in order to be attributed to a State, it must be proven that it is:

  • of a person or entity exercising elements of the governmental authority of that State
  • of organs placed at the disposal of that State by another State
  • of a person or entities acting under the instructions of, or under the direction or control of that State

In order to determine the degree of control reference should be made to the jurisprudence of the ICJ and of the various international courts and tribunals that have dealt with matters of State attribution.

Once attributed to a State and determined that the conduct constitutes a breach of an international obligation (the 2nd component), the international responsibility of that State is entailed and can be invoked by the injured State either individually (if the obligation breached is owed to that State or if that State was otherwise affected by the conduct) or collectively with other States if the obligation breached was owed to a group of States (including that State) or to the international community as a whole; the invocation of the responsibility of a State is a matter of political choice; however, the responsibility of a State for an international wrongful act is an objective circumstance from the legal standpoint, which exists independent of its invocation by the injured State(s); nevertheless, under draft articles of State responsibility there is a certain procedure to be followed by the injured State invoking the responsibility of another State (therefore a pubic invocation may not suffice).

At the same time, once the international responsibility of a State is entailed, the injured State(s) may recourse to countermeasures in order to induce that State to comply with its international obligations."[35]

Russia (2021)

"The possibility of attributing responsibility for particular actions in information space to States demands further study on the basis of the existing international law. The international responsibility of a State is conditioned to the commission of an internationally wrongful act by this State. According to the Articles on Responsibility of States for Internationally Wrongful Acts (elaborated by the UN International Law Commission in 2001, taken note in the UNGA resolution A/RES/56/83), there is an internationally wrongful act of a State when conduct consisting of an action or omission: 1) is attributable to the State under international law; 2) constitutes a breach of an international legal obligation of the State. The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law (article 3)."[36]

Sweden (2022)

Legal attribution must be distinguished from public attribution. Legal attribution is an integral part in the process to establish and characterise an act in legal terms, and there is no legal requirement to disclose any evidence in relation to the assessment of attribution of conduct. Publicizing a decision on attribution is the prerogative of sovereign States and is not a requirement under international law.[37]

Switzerland (2021)

"Attribution of a cybersecurity incident refers to the identification of the perpetrator and describes a holistic, interdisciplinary process. This includes analysing the technical and legal aspects of the incident, factoring in the geopolitical context, and using the entire intelligence spectrum for the purpose of gathering information. Using this approach, a state can attribute a cyber incident to another state or a private actor, either publicly or not, and it can decide to take further political measures.

The process described above includes legal attribution, which ascertains whether a cyber incident can be legally attributed to a state and if that state can be held responsible under international law in accordance with the rules on state responsibility; it also concerns how the injured state may respond (known as countermeasures, see section 6.2). The conduct of any state organ or person exercising an inherently governmental function is always legally attributable to the state concerned.18 If a cyber incident is carried out by a non-state actor, it can only be attributed to a state under certain conditions. In such cases, state responsibility only arises if the non-state actor acts on the instructions of a state, or under the direction or control of state organs. If this requirement is met, the conduct constitutes an act by the state and is attributable to that state. The injured state is also permitted to take countermeasures (see section 6.2). If the required interstate dimension is lacking however, international law does not in principle permit countermeasures against another state.

The decision to attribute conduct is at the discretion of the injured state and there is no obligation under international law to disclose the information leading to such a decision. Allegations of the organisation or implementation of an unlawful act against another state should however be substantiated."[38]

United Kingdom (2018)

"As with other forms of hostile activity, there are technical, political and diplomatic considerations in publicly attributing hostile cyber activity to a state, in addition to whether the legal test is met.

There is no legal obligation requiring a state to publicly disclose the underlying information on which its decision to attribute hostile activity is based, or to publicly attribute hostile cyber activity that it has suffered in all circumstances.

However, the UK can and does attribute malicious cyber activity where we believe it is in our best interests to do so, and in furtherance of our commitment to clarity and stability in cyberspace. Sometimes we do this publicly, and sometimes we do so only to the country concerned. We consider each case on its merits.

For example, the WannaCry ransomware attack affected 150 countries, including 48 National Health Service Trusts in the United Kingdom. It was one of the most significant attacks to hit the UK in terms of scale and disruption. In December 2017, together with partners from the US, Australia, Canada, New Zealand, Denmark and Japan, we attributed the attack to North Korean actors. Additionally, our attribution, together with eleven other countries, of the destructive NotPetya cyber-attack against Ukraine to the Russian government, specifically the Russian Military in February this year illustrated that we can do this successfully. If more states become involved in the work of attribution then we can be more certain of the assessment. We will continue to work closely with allies to deter, mitigate and attribute malicious cyber activity. It is important that our adversaries know their actions will be held up for scrutiny as an additional incentive to become more responsible members of the international community."[39]

United Kingdom (2021)

"The term ‘attribution’ is used in relation to cyberspace in both a legal and non-legal sense. It is used in a legal sense to refer to identifying those who are responsible for an internationally wrongful act. It is also used in a non-legal sense to describe the identification of actors (including non-state actors) who have carried out cyber conduct which may be regarded as hostile or malicious but does not necessarily involve an internationally wrongful act.

For the UK, there are technical and diplomatic considerations in determining whether to attribute publicly such activities in cyberspace. The decision whether to make a public attribution statement is a matter of policy. Each case is considered on its merits. The UK will publicly attribute conduct in furtherance of its commitment to clarity and stability in cyberspace or where it is otherwise in its interests to do so.

Whatever the nature of the attribution, there is no general legal obligation requiring a State to publicly disclose any underlying information on which its decision to attribute conduct is based."[40]

United Kingdom (2022)

"I should also add that the nature of cyberspace means that it may not be evident, at least at first, whether a State is responsible for a particular action. This is also a space in which criminal gangs operate for financial profit. To be clear, State direction or control of non-State actors who undertake cyber operations of the kind I have described today would also represent unlawful conduct by that State, in line with international law on State responsibility. Cyber is no different from other spheres of activity in this sense. Provided that it is exercising the requisite degree of direction or control, a State is no less responsible for internationally unlawful cyber operations conducted by a ransomware gang than it would be for the unlawful actions of an armed group, or a corporation."[41]

"Coordination between States, in a more general sense, is also crucial in responding to hostile State activity in cyberspace and imposing a cost on those who seek to abuse the freedom and opportunity that technological progress has provided them. States are developing more sophisticated and coordinated diplomatic and economic responses. This can be seen in the response to the recent operation targeting Microsoft Exchange servers, where 39 partners including NATO, the EU and Japan coordinated in attributing hostile cyber activity to China. It can also be seen in the response to the Russian SolarWinds hack which saw coordinated US, UK and allied sanctions and other measures."[42]

United States (2012)

"[...]cyberspace significantly increases an actor’s ability to engage in attacks with “plausible deniability,” by acting through proxies. I noted that legal tools exist to ensure that states are held accountable for those acts. What I want to highlight here is that many of these challenges — in particular, those concerning attribution — are as much questions of a technical and policy nature rather than exclusively or even predominantly questions of law. Cyberspace remains a new and dynamic operating environment, and we cannot expect that all answers to the new and confounding questions we face will be legal ones."[43]

United States (2016)

"From a legal perspective, the customary international law of state responsibility supplies the standards for attributing acts, including cyber acts, to States. For example, cyber operations conducted by organs of a State or by persons or entities empowered by domestic law to exercise governmental authority are attributable to that State, if such organs, persons, or entities are acting in that capacity.

Additionally, cyber operations conducted by non-State actors are attributable to a State under the law of state responsibility when such actors engage in operations pursuant to the State’s instructions or under the State’s direction or control, or when the State later acknowledges and adopts the operations as its own.

Thus, as a legal matter, States cannot escape responsibility for internationally wrongful cyber acts by perpetrating them through proxies. When there is information — whether obtained through technical means or all-source intelligence — that permits a cyber act engaged in by a non-State actor to be attributed legally to a State under one of the standards set forth in the law of state responsibility, the victim State has all of the rights and remedies against the responsible State allowed under international law.

The law of state responsibility does not set forth explicit burdens or standards of proof for making a determination about legal attribution. In this context, a State acts as its own judge of the facts and may make a unilateral determination with respect to attribution of a cyber operation to another State. Absolute certainty is not—and cannot be—required. Instead, international law generally requires that States act reasonably under the circumstances when they gather information and draw conclusions based on that information.

I also want to note that, despite the suggestion by some States to the contrary, there is no international legal obligation to reveal evidence on which attribution is based prior to taking appropriate action. There may, of course, be political pressure to do so, and States may choose to reveal such evidence to convince other States to join them in condemnation, for example. But that is a policy choice—it is not compelled by international law."[44]

United States (2021)

"The law of State responsibility supplies the standards for attributing acts, including cyber acts, to States. For example, cyber operations conducted by organs of a State or by persons or entities empowered by domestic law to exercise elements of governmental authority are attributable to that State. As important, as a legal matter, States cannot escape responsibility for internationally wrongful cyber acts by perpetrating them through proxies; cyber operations conducted by non-State actors are attributable to a State under the law of State responsibility when such operations are engaged in pursuant to the State’s instructions or under the State’s direction or control, or when the State later acknowledges and adopts the operations as its own. Thus, when there is information – whether obtained through technical means or all-source intelligence – that permits attribution of a cyber act of an ostensibly non-State actor to a State under the international law of State responsibility, the victim State has all of the rights and remedies against the responsible State permitted to it under international law.

The law of State responsibility does not set forth burdens or standards of proof for attribution. Such questions may be relevant for judicial or other types of proceedings, but they do not apply as an international legal matter to a State’s determination about attribution of internationally wrongful cyber acts for purposes of its response to such acts, including by taking unilateral, self-help measures permissible under international law, such as countermeasures. In that context, a State acts as its own judge of the facts and may make a unilateral determination with respect to attribution of a cyber operation to another State. Absolute certainty is not required. Instead, international law generally requires that States act reasonably under the circumstances. Similarly, there is no international legal obligation to reveal evidence on which attribution is based. But to facilitate global understanding of emerging state practice in this rapidly developing area, public attributions should, wherever feasible, include sufficient evidence to allow corroboration or cross-checking of allegations.

Attribution plays an important role in States’ responses to malicious cyber activities as a matter of international law. It is crucial, however, to distinguish legal attribution from attribution in the technical and political senses. States and commentators often express concerns about the challenge of attribution in a technical sense – that is, the challenge in light of certain characteristics of cyberspace of obtaining facts, whether through technical indicators or all-source intelligence, that would inform a State’s policy and legal determinations about a particular cyber incident. Others have raised issues related to political decisions about attribution – that is, considerations that might be relevant to a State’s decision to go public and identify another State as the actor responsible for a particular cyber incident and to condemn a particular cyber act as unacceptable. As norms emerge to clarify how international law addresses the issue of attribution, it would be useful, wherever possible, for law-abiding states to share information regarding both technical knowhow and state practice."[45]

Appendixes

See also

Notes and references

  1. ILC Articles on State Responsibility, Art 4.
  2. ILC Articles on State Responsibility, Art 8.
  3. ILC Articles on State Responsibility, Art 4(1).
  4. ILC Articles on State Responsibility, Art 6.
  5. ILC Articles on State Responsibility, Art 5.
  6. ILC Articles on State Responsibility, Art 7; Tallinn Manual 2.0, commentary to rule 15, paras. 6-7 and 12.
  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. ILC Articles on State Responsibility, Art 9.
  9. ILC Articles on State Responsibility, Art 10(1).
  10. ILC Articles on State Responsibility, Art 10(2).
  11. ILC Articles on State Responsibility, Art 11.
  12. See further Marco Roscini, ‘Evidentiary Issues in International Disputes Related to State Responsibility for Cyber Operations’ (2015) 50 Texas International Law Journal 233; Isabella Brunner, Marija Dobrić and Verena Pirker, ‘Proving a State’s Involvement in a Cyber-Attack: Evidentiary Standards Before the ICJ’ (2015) 25 Finnish Yearbook of International Law 75; Tomohiro Mikanagi and Kubo Mačák, ‘Attribution of Cyber Operations: An International Law Perspective on the Park Jin Hyok case’ (2020) 9 Cambridge International Law Journal 51, 64-68.
  13. ILC Articles on State Responsibility, commentary to chapter III, para 4 ("Questions of evidence and proof of such a breach fall entirely outside the scope of the articles."); ibid, commentary to Art 19, para 8 ("Just as the articles do not deal with questions of the jurisdiction of courts or tribunals, so they do not deal with issues of evidence or the burden of proof.").
  14. Tallinn Manual 2.0, Chapter 4 Section 1, para 8.
  15. Tallinn Manual 2.0, Chapter 4 Section 1, para 10; Cf. Yeager v Islamic Republic of Iran (1987) 17 Iran-US CTR 92, 101–02 (‘[I]n order to attribute an act to the State, it is necessary to identify with reasonable certainty the actors and their association with the State.’).
  16. Tallinn Manual 2.0, Chapter 4 Section 1, para 10.
  17. According to the UK Attorney General, "[t]here is no legal obligation requiring a state to publicly disclose the underlying information on which its decision to attribute hostile activity is based, or to publicly attribute hostile cyber activity that it has suffered in all circumstances." (UK Attorney General, Jeremy Wright QC MP, 'Cyber and International Law in the 21st Century'; see also Tallinn Manual 2.0, Chapter 4 Section 1 chapeau, para 13.
  18. Tallinn Manual 2.0, Chapter 4 Section 1, para 12; see also ILC Articles on State Responsibility, Art 49 para 3 (“A State taking countermeasures acts at its peril, if its view of the question of wrongfulness turns out not to be well founded.”)
  19. Australian Government, Australia's position on how international law applies to State conduct in cyberspace
  20. 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.
  21. Government of Canada, International Law applicable in cyberspace, April 2022, See Footnote [21], A State may also engage international responsibility if it coerces another state or directs and controls it in the commission of an internationally wrongful act: International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts (Articles on State Responsibility), with commentaries, (2001) Arts. 17, 18, online: https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf.
  22. Government of Canada, International Law applicable in cyberspace, April 2022, See Footnote [22], Articles on State Responsibility, supra note 21,Art. 8.
  23. Government of Canada, International Law applicable in cyberspace, April 2022
  24. President of Estonia: international law applies also in cyber space, 29 May 2019
  25. 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.
  26. International law and cyberspace - Finland's national position
  27. Ministry of Defense of France, International Law Applied to Operations in Cyberspace, 9 September 2019, 10-11.
  28. Federal Government of Germany, ‘On the Application of International Law in Cyberspace’, Position Paper (March 2021) 10-12.
  29. Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.
  30. Italian position paper on "International law and cyberspace", Italian Ministry for Foreign Affairs and International Cooperation.,5.
  31. Ministry of Foreign Affairs of Japan, Basic Position of the Government of Japan on International Law Applicable to Cyber Operations, 16 June 2021, 4
  32. Government of the Kingdom of the Netherlands, Appendix: International law in cyberspace, 26 September 2019 , 6-7.
  33. The Application of International Law to State Activity in Cyberspace, 1 December 2020, 3.
  34. 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.
  35. 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, 78-79.
  36. 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, 80.
  37. Government Offices of Sweden, Position Paper on the Application of International Law in Cyberspace, July 2022,5
  38. Federal Department of Foreign Affairs, ‘Switzerland's position paper on the application of international law in cyberspace’ (May 2021) 5-6.
  39. Attorney General Jeremy Wright:Cyber and International Law in the 21st Century, 23 May 2018
  40. United Kingdom Foreign, Commonwealth & Development Office, Application of international law to states’ conduct in cyberspace: UK statement, 3 June 2021
  41. Attorney General Suella Braverman: International Law in Future Frontiers, 19 May 2022
  42. Attorney General Suella Braverman: International Law in Future Frontiers, 19 May 2022
  43. Harold Hongju Koh, International Law in Cyberspace, 18 September 2012, 8
  44. Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016 17-20.
  45. 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, 141-142.

Bibliography and further reading

The military unit of State B qualifies as an organ of that State.[1] As such, its relevant conduct is directly attributable to State B.[2] The following analysis proceeds on the assumption that all incidents described in the scenario (incidents 1–4) were conducted by the said State B’s military unit.

Breach of international obligation

Definition

Breach of an international obligation
Breach of an international obligation.svg
The second element of an internationally wrongful act is conduct amounting to a breach of an international obligation owed by the relevant entity.[3] In this regard, it is undisputed that a cyber-related action or omission by a State may constitute a breach of its international obligations.[4] International obligations arise from primary rules of international law:[5] international treaties, customary international law, and general principles of law.[6] Fault, such as intent or negligence on part of the wrongdoing State, is not a necessary element of a breach of an international obligation, unless there exists such a requirement in the relevant primary rule.[7] Similarly, there is no general requirement for the injured party to have suffered any damage—again, unless such a requirement forms part of the primary obligation in question.[8]

It is impossible to provide a list of all international obligations that may be violated by resort to cyber means. However, certain rules appear with higher frequency than others. These include the prohibition on the use of force; the prohibition of intervention; the obligation to respect the sovereignty of other States; the obligation to respect the right to privacy; the obligation of due diligence; and a few others (such as, for instance, the rule of distinction in the context of the law of armed conflict).

Appendixes

See also

Notes and references

  1. See, for example, 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.”).
  2. Articles on State Responsibility, Art. 4(1); Tallinn Manual 2.0, commentary to rule 15, para. 1.
  3. Cf. ILC Articles on State Responsibility, Art. 2(b).
  4. For a detailed discussion of a breach of an international obligation by a cyber-related act, see rule 14 of Tallinn Manual 2.0 and commentary 2–11 thereto.
  5. ILC Articles on State Responsibility, General commentary, para 1.
  6. Statute of the International Court of Justice, of 26 June 1945, annexed to the UN Charter, Art 38(1)(a)–(c).
  7. ILC Articles on State Responsibility, Art. 2, para 10.
  8. ILC Articles on State Responsibility, Art. 2, para 9.

Bibliography and further reading

The following obligations based on treaty law and customary international law are considered:

Diplomatic and consular law

The Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations are considered to be broadly reflective of customary international law.[1] Therefore, even if State A or State B had not ratified these Conventions, the rules analysed below would still apply to their diplomatic and consular relations.

International law protects the inviolability of documents and archives of diplomatic missions and consular posts.[2] This includes any official correspondence, whether in electronic or paper form.[3] The international legal obligation to respect inviolability is unaffected by the frequent practice of States to conduct cyber espionage operations that violate this duty. This is because any such practice is regularly condemned by the victim States, whereas the offending States refrain from putting forward any corresponding legal justification of such operations.[4]

In incident 1, by gaining access to an official email account of a consular officer, State B ran afoul of the inviolability of official correspondence. The lateral movement (incident 2) and exfiltration of data (incident 3) are just further steps in the illegal activity of State B, at least to the extent that the hacked accounts and servers contained data pertaining to State A’s diplomatic missions and consular posts, irrespective of their location.[5]

Incident 4, wherein the data was published on the Internet, raises the question whether the published materials are still protected by international law. This issue is unsettled in the present state of the law. One view, endorsed by a majority of the experts drafting the Tallinn Manual, is that inviolability no longer applies to data that has been made public, as it is “not confidential as a matter of fact”.[6] By contrast, others believe that the duty to respect the inviolability of the materials in question continues to apply in such cases.[7] The primary reason for this view is that the duty of inviolability covers the protected materials “wherever they may be”,[8] which therefore includes even the public domain.[9]

Sovereignty

Definition

  1. See, for example, J Wouters, S Duquet, and K Meuwissen, “The Vienna Conventions on Diplomatic and Consular Relations” in AF Cooper, J Heine, and R Thakur (eds), The Oxford Handbook of Modern Diplomacy (OUP 2013) 510 (noting that VCDR’s and VCCR’s main provisions have acquired customary status); ICJ, United States Diplomatic and Consular Staff in Tehran [1980] ICJ Rep 3, 31–32 [62] (noting that the relevant obligations under the two treaties are “also obligations under general international law”).
  2. Art. 24 VCDR; Art. 33 VCCR.
  3. Tallinn Manual 2.0, commentary to rule 41, para. 3.
  4. Tallinn Manual 2.0, commentary to rule 41, para. 11.
  5. See Tallinn Manual 2.0, commentary to rule 41, para. 6 (noting that archives and documents of a diplomatic mission or a consular post remain inviolable even if they are stored outside of the receiving State, including on a server belonging to the sending State’s ministry of foreign affairs).
  6. Tallinn Manual 2.0, commentary to rule 41, para. 14.
  7. Tallinn Manual 2.0, commentary to rule 41, para. 15.
  8. Art. 24 VCDR and Art. 33 VCCR.
  9. Tallinn Manual 2.0, commentary to rule 41, para. 15.
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.[1]
Multiple declarations by the UN,[2] NATO,[3] OSCE,[4] the European Union,[5] and individual States have confirmed that international law applies in cyberspace. Accordingly, so too does the principle of sovereignty. 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.[6] It has also been adopted by several States including Austria,[7] the Czech Republic,[8] Finland,[9] France,[10] Germany,[11] Iran,[12] and the Netherlands.[13]
  • 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.[14] This view has now been adopted by one State, the United Kingdom,[15] and has been endorsed by the U.S. Department of Defense General Counsel.[16] 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).

It is understood that sovereignty has both an internal and an external component.[17] 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.”[18][19]

As a general rule, each State must respect the sovereignty of other States.[20] 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.[21]

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.[22] 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.[23]
  2. Causation of physical damage or injury by remote means;[24] again, “a few” Experts took the position that this is a relevant but not a determinative factor by itself.[25]
  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 operating system or other software was proposed but not universally accepted);[26] 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.[27]
  4. Interference with data or services that are necessary for the exercise of "inherently governmental functions";[28] although the Experts could not conclusively define the term "inherently governmental functions", they agreed that, for example, the conduct of elections would so qualify.[29]
  5. Usurpation of "inherently governmental functions", such as exercise of law enforcement functions in another State’s territory without justification.[30]

The Tallinn Manual’s view of what constitutes a violation of sovereignty has been expressly endorsed by several States including Germany[31] and the Netherlands.[32] 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”.[33]

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.[34]

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 the People's Republic of China (2021) (2021), National position of the Czech Republic (2020) (2020), 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 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 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).

National positions

Australia (2020)

"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."[35]

Brazil (2021)

"State sovereignty is one of the founding principles of international law. As the ICJ has stated in the Corfu Channel Case, “between independent States, the respect for territorial sovereignty is an essential foundation for ‘international relations’”. It is applicable as a standalone rule, including to the use of ICTs by States, and entails an independent obligation of “every State to respect the territorial sovereignty of others”. Currently, there is neither broad state practice nor sufficient opinio juris to generate new customary international norm allowing for the violation of State 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."[36]

Canada (2022)

"10. Sovereignty is a fundamental element of international law and international relations. It is axiomatic that the principle of sovereignty applies in cyberspace, just as it does elsewhere. It animates a number of obligations for all States."[37]

"13. Territorial sovereignty is a rule under international law.[38] Every State must respect the territorial sovereignty of every other State. States enjoy sovereignty over their territory, including in particular infrastructure located within their territory and activities associated with that infrastructure. An infringement upon the affected State’s territorial integrity, or an interference with or usurpation of inherently governmental functions of the affected State, would be a violation of territorial sovereignty.[39]"[40]

"14. In assessing the possible infringement of a State’s territorial sovereignty, several key factors must be considered. The scope, scale, impact or severity of disruption caused, including the disruption of economic and societal activities, essential services, inherently governmental functions, public order or public safety must be assessed to determine whether a violation of the territorial sovereignty of the affected State has taken place.

15. In general, the impact or severity of cyber effects will be evaluated in the same manner and according to the same criteria as for physical activities. Cyber activities that rise above a level of negligible or de minimis effects, causing significant harmful effects within the territory of another State without that State’s consent, could amount to a violation of the rule of territorial sovereignty with respect to the affected State. It is also important to note that cyber activities with effects in another State do not constitute physical presence in the territory of that State. As such, territorial sovereignty is not violated by virtue merely of remote activities having been carried out on or through the cyber infrastructure located within the territory of another State. Furthermore, cyber activities carried out remotely from within Canada with negligible effects in a foreign State do not involve an extraterritorial exercise of enforcement jurisdiction by Canada.

16. Cyber activities that cause a loss of functionality with respect to cyber infrastructure located within the territory of the affected State may also constitute a violation of territorial sovereignty if the resulting loss of functionality causes significant harmful effects similar to those caused by physical damage to persons or property. For example, a violation of the territorial sovereignty will occur when the cyber activity creates a significant harmful effect that necessitates the repair or replacement of physical components of cyber infrastructure in the affected State. The loss of functionality of physical equipment that relies on the affected infrastructure in order to operate could also form part of the violation. The assessment of the effects includes both intended and unintended consequences that reach the threshold required to trigger a violation.

17. The rule of territorial sovereignty does not require consent for every cyber activity that has effects, including some loss of functionality, in another State. Activities causing negligible or de minimis effects would not constitute a violation of territorial sovereignty regardless of whether they are conducted in the cyber or non-cyber context. Nor are States precluded by the rule of territorial sovereignty from taking measures that have negligible or de minimis effects to defend against the harmful activity of malicious cyber actors or to protect their national security interests. For example, Canada considers that a cyber activity that requires rebooting or the reinstallation of an operating system is likely not a violation of territorial sovereignty.

18. The other key basis for assessing a violation of territorial sovereignty is whether a cyber activity interferes with or usurps the inherently governmental functions of another State. Cyber activities that have significant harmful effects on the exercise of inherently governmental functions would constitute an internationally wrongful act. For Canada, this would include government activities in areas such as health care services, law enforcement, administration of elections, tax collection, national defence and the conduct of international relations, and the services on which these depend. There can be a violation of territorial sovereignty by way of effects on governmental functions regardless of whether there is physical damage, injury, or loss of functionality. An example would be a cyber activity that interrupts health care delivery by blocking access to patient health records or emergency room services, resulting in risk to the health or life of patients.

19. Importantly, some cyber activities, such as cyber espionage, do not amount to a breach of territorial sovereignty, and hence to a violation of international law.[41] They may however be prohibited under the national laws of a State.[42]

20. It is possible that a series of cyber activities could lead to significant harmful effects that violate the rule of territorial sovereignty. This is the case even if the individual cyber activity on its own would not reach this threshold.

21. Canada will assess whether a violation of territorial sovereignty has occurred on a case-by-case basis. As noted below, Canada believes further State practice and opinio juris will help clarify the scope of customary law in this area over time. In any event, Canada considers that the existence of varied approaches to assessing the legality of cyber activities should not prevent States from agreeing that particular malicious cyber activities are internationally wrongful acts."[43]

China (2021)

"The principle of sovereignty applies in cyberspace. States should exercise jurisdiction over the ICT infrastructure, resources, data as well as ICT-related activities within their territories, and have the rights to protect their information systems and important data against damage resulting from threats, interference, attack and sabotage. States have the right to make ICT-related public policies, laws and regulations to protect legitimate interests of their citizens, enterprises and social organizations. States should refrain from using ICTs to interfere in intermal affairs of other States and undermine their political, economic and social stability, or to conduct activities that undermine other States' national security and public interests. States should participate in the management and distribution of international Internet resources on equal footings, and build a global Internet governance system of multilateralism, democracy and transparency."[44]

Czech Republic (2020)

"[...]the Czech Republic recalls that the principles of sovereignty and sovereign equality of States are cornerstones of the UN Charter and thus concurs with the conclusion contained in the report of the UN GGE that in their use of ICT´s States are obliged to observe principles of international law, including the principle of sovereignty. The Czech Republic concurs with those considering the principle of sovereignty as an independent right and the respect to sovereignty as an independent obligation.

The Czech Republic firmly believes that under this principle States may freely exercise without interference in any form by another State both aspects of sovereignty in cyberspace, be it an internal one, with the exclusive jurisdiction over the ICTs located on its territory, or the external one, including the determination of its foreign policy, subject only to obligations under international law. The Czech Republic considers the following cyber operations in a State’s territory as violation of its sovereignty, if attributable to another State:

A. a cyber operation causing death or injury to persons or significant physical damage;

B.a cyber operation causing damage to or disruption of cyber or other infrastructure with a significant impact on national security, economy, public health or environment;

C.a cyber operation interfering with any data or services which are essential for the exercise of inherently governmental functions, and thereby significantly disrupting the exercise of those functions; for example, distributing ransomware which encrypts the computers used by a government and thus significantly delaying the payment of retirement pensions;

D. cyber operation against a State or entities or persons located therein, including international organisations, conducted by a physically present organ of another State;"[45]

Estonia (2019)

"Sovereignty entails not only rights, but also obligations."[46]

Estonia (2021)

Sovereignty as a fundamental principle of international law applies in cyberspace.

"The 2013 and 2015 GGE consensus reports underscore that sovereignty and the international norms and principles that flow from it apply to state conduct of ICT-related activities. In addition, the 2013 GGE emphasised the importance of international law, the Charter of the UN and the principle of sovereignty as the basis for the use of ICTs by states.

States have territorial sovereignty over the ICT infrastructure and persons engaged in cyber activities on their territory. However, states’ right to exercise sovereignty on their territory is not unlimited; states must respect international law, including human rights obligations. States also bear the responsibility to comply with legal obligations flowing from sovereignty – for example, the responsibility not to breach the sovereignty of other states and to take reasonable efforts to ensure that their territory is not used to adversely affect the rights of other states. The principle of sovereignty is also closely linked with the principle of non-intervention and the principles of the prohibition of the threat or use of force.

The violation of sovereignty through cyber means can breach international law, and therefore may give the victim state the right to take measures, including countermeasures. Views on what constitutes a breach of sovereignty in cyberspace differ. Malicious cyber operations can be complex, cross several jurisdictions and may not always produce physical effects on targeted infrastructure."[47]

Finland (2020)

"It is undisputed that the principle of State sovereignty applies in cyberspace. While cyberspace as a whole cannot be subject to appropriation by any State, each State has jurisdiction over the cyber infrastructure and the persons engaged in cyber activities within its territory."

"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. Whether an unauthorized cyber intrusion violates the target State’s sovereignty depends on its nature and consequences and is subject to a case-by-case assessment."[48]

France (2019)

"Cyberattacks may constitute a violation of sovereignty. The international norms and principles that flow from State sovereignty apply to the use of ICT by States and to their territorial jurisdiction over ICT infrastructure. France exercises its sovereignty over the information systems located on its territory".[49]

"Any cyberattack against French digital systems or any effects produced on French territory by digital means by a State organ, a person or an entity exercising elements of governmental authority or by a person or persons acting on the instructions of or under the direction or control of a State constitutes a breach of sovereignty."[50]

"The principle of sovereignty applies to cyberspace. France exercises its sovereignty over the information systems located on its territory. The gravity of a breach of sovereignty will be assessed on a case-by-case basis in accordance with French cyberdefence governance arrangements in order to determine possible responses in compliance with international law".[51]

Germany (2021)

"The legal principle of State sovereignty applies to States’ activities with regard to cyberspace. State sovereignty implies, inter alia, that a State retains a right of regulation, enforcement and adjudication (jurisdiction) with regard to both persons engaging in cyber activities and cyber infrastructure on its territory. It is limited only by relevant rules of international law, including international humanitarian law and international human rights law. Germany recognizes that due to the high degree of cross-border interconnectedness of cyber infrastructures, a State’s exercise of its jurisdiction may have unavoidable and immediate repercussions for the cyber infrastructure of other States. While this does not limit a State’s right to exercise its jurisdiction, due regard has to be given to potential adverse effects on third States.

By virtue of sovereignty, a State’s political independence is protected and it retains the right to freely choose its political, social, economic and cultural system. Inter alia, a State may generally decide freely which role information and communication technologies should play in its governmental, administrative and adjudicative proceedings. Foreign interference in the conduct of elections of a State may under certain circumstances constitute a breach of sovereignty or, if pursued by means of coercion, of the prohibition of wrongful intervention. Moreover, by virtue of its sovereignty, a State may decide freely over its foreign policy also in the field of information and communication technologies.

Furthermore, a State’s territorial sovereignty is protected. Due to the rootedness of all cyber activities in the actions of human beings using physical infrastructure, cyberspace is not a deterritorialized forum. In this regard, Germany underlines that there are no independent ‘cyber borders’ incongruent with a State’s physical borders which would limit or disregard the territorial scope of its sovereignty. Within its borders, a State has the exclusive right – within the framework of international law – to fully exercise its authority, which includes the protection of cyber activities, persons engaging therein as well as cyber infrastructures in the territory of a State against cyber and non-cyber-related interferences attributable to foreign States."[52]

"Germany agrees with the view that cyber operations attributable to States which violate the sovereignty of another State are contrary to international law. In this regard, State sovereignty constitutes a legal norm in its own right and may apply directly as a general norm also in cases in which more specific rules applicable to State behaviour, such as the prohibition of intervention or the use of force, are not applicable. Violations of State sovereignty may inter alia involve its territorial dimension; in this regard, the following categories of cases may be relevant (without excluding the possibility of other cases):

Germany essentially concurs with the view proffered, inter alia, in the Tallinn Manual 2.0 that cyber operations attributable to a State which lead to physical effects and harm in the territory of another State constitute a violation of that State’s territorial sovereignty. This encompasses physical damage to cyber infrastructure components per se and physical effects of such damage on persons or on other infrastructure, i.e. cyber or analogue infrastructure components connected to the damaged cyber component or infrastructure located in the vicinity of the damaged cyber infrastructure (provided a sufficient causal link can be established).

Germany generally also concurs with the view expressed and discussed in the Tallinn Manual 2.0 that certain effects in form of functional impairments with regard to cyber infrastructures located in a State’s territory may constitute a violation of a State’s territorial sovereignty. In Germany’s view, this may also apply to certain substantial non-physical (i.e. software-related) functional impairments. In such situations, an evaluation of all relevant circumstances of the individual case will be necessary. If functional impairments result in substantive secondary or indirect physical effects in the territory of the target State (and a sufficient causal link to the cyber operation can be established), a violation of territorial sovereignty will appear highly probable.

In any case, negligible physical effects and functional impairments below a certain impact threshold cannot – taken by themselves – be deemed to constitute a violation of territorial sovereignty.

Generally, the fact that a piece of critical infrastructure (i.e. infrastructure which plays an indispensable role in ensuring the functioning of the State and its society) or a company of special public interest in the territory of a State has been affected may indicate that a State’s territorial sovereignty has been violated. However, this cannot in and of itself constitute a violation, inter alia because uniform international definitions of the terms do not yet exist. Also, cyber operations in which infrastructures and/or companies which do not qualify as ‘critical’ or ‘of particular public interest’ are affected may likewise violate the territorial sovereignty of a State."[53]

Iran (2020)

"Article II: Sovereignty Policies of Armed forces of the Islamic Republic of Iran

1. The Islamic Republic of Iran has developed its sovereignty fields consistent with necessary capabilities for protection of its strategic military, economic, social, cultural, and political authority. In doing so, the development of expertise and advanced cyber tools for active and deterrent cyber-defense is, among others, one of the significant priorities for the protection of the strategic authority of the state.

2. Rules of modern international law imply the existence of limited territory in geographical borders of states exercising sovereignty or at least jurisdiction within those borders. According to the armed forces of the Islamic Republic of Iran, the territorial sovereignty and jurisdiction of the states are also extended to all elements of the cyberspace.

3. Any intentional use of cyber-force with tangible or non-tangible implications which is or can be a threat to the national security or may, due to political, economic, social, and cultural destabilization, result in destabilization of national security constitutes a violation of the sovereignty of the state.

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.

5. The sovereignty of states is not an extra-legal matter. It shall be interpreted under the other fundamental legal principles such as non-intervention, good faith, self-determination, and other basic principles. It must be kept in mind that the sovereignty of states is subject to the principle of equality and the sovereignty of any state is not above the sovereignty of the other states. Therefore, any limiting and freezing measure, including sanctions, constitutes the violation of the sovereignty of independent states because of not respecting the sovereignty of target states."[54]

Israel (2020)

"To begin with, there are diverging views regarding whether sovereignty is merely a principle, from which legal rules are derived, or a binding rule of international law in itself, the violation of which could be considered an internationally wrongful act. This issue has many facets, and while I will not offer any definitive position for the time being, I would like to stress a number of important points.

A second, and related, point is that States undoubtedly have sovereign interests in protecting cyber infrastructure and data located in their territory. However, States may also have legitimate sovereign interests with respect to data outside their territory. For example, as governments store more and more of their data by using cloud services provided by third parties, whose servers are located abroad, how do we describe the interest that they have in relation to that data? Would the interest in protecting the data not be a sovereign interest in this case as well? Or, alternatively, when a State conducts a criminal investigation and needs to access data located abroad from its own territory, under what circumstances does it need to request the consent of the territorial State? Of course, there are no easy answers to these questions, and some of them are currently being discussed, such as in the context of the protocol to the Budapest Cybercrime Convention currently being negotiated to address this very topic.

These questions reflect an inherent tension between States’ legitimate interest and the concept of territorial sovereignty, as we understand it in the physical world. In practice, States occasionally do conduct cyber activities that transit through, and target, networks and computers located in other States, for example for national defense, cybersecurity, or law enforcement purposes. Under existing international law, it is not clear whether these types of actions are violations of the rule of territorial sovereignty, or perhaps that our understanding of territorial sovereignty in cyberspace is substantively different from its meaning in the physical world."[55]

Italy (2021)

"Italy attaches fundamental importance to the application of the principle of sovereignty to cyberspace, including its ancillary rules, such as the right to internal self-determination. Italy considers that both the internal and external aspects of sovereignty apply in cyberspace.

The principle of sovereignty is a primary rule of international law, the violation of which amounts to an internationally wrongful act. Italy considers that the principle in question prohibits a State from conducting cyber operations, which produce harmful effects on the territory of another State, irrespective of the physical location of the perpetrator. Italy finds that, according to the same principle, a State may not conduct cyber operations from the territory of another State without its express authorization. This is without prejudice to situations of distress where the state of necessity entails the applicability of a different discipline.

Each State’s exclusive jurisdiction over the physical, social and logical layers of cyberspace located on its territory may be exercised within the limits imposed by international law, including international obligations deriving from diplomatic privileges and immunities and those arising from human rights obligations. Responses to violations of sovereignty should be assessed on a case-by-case basis taking into account the nature and consequences of each violation."[56]

Japan (2021)

"A State must not violate the sovereignty of another State by cyber operations. Moreover, a State must not intervene in matters within domestic jurisdiction of another State by cyber operations."[57]

"On the other hand, regarding a violation of sovereignty that does not necessarily constitute an intervention, in the Lotus case, the Permanent Court of International Justice held that a State may not exercise its power in the territory of another State, while, in the Island of Palmas case, the Arbitral Tribunal stated as follows: "Sovereignty 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." Taking these and other judgments into account, the Government of Japan considers that there exist certain forms of violation of sovereignty which may not necessarily constitute unlawful intervention prohibited under the principle of non-intervention.

With respect to violation of sovereignty, the International Court of Justice (ICJ), in the Nicaragua case (1986), held that the United States had acted in breach of its obligation under customary international law not to intervene in the affairs of another State, and, in addition, that the United States, by directing or authorizing overflights of Nicaraguan territory, had acted in breach of its obligation under customary international law not to violate the sovereignty of another State. In addition, in the Costa Rica v. Nicaragua case (2015), the ICJ cited the absence of evidence that Costa Rica exercised authority on Nicaragua ’s territory as the reason for dismissing Nicaragua's claim concerning the violation of its territorial integrity and sovereignty. Considering these cases, it can be presumed that, in some cases, a violation of sovereignty constitutes a violation of international law even when it does not fall within the scope of unlawful intervention."[58]

"An act of causing physical damage or loss of functionality by means of cyber operations against critical infrastructure, including medical institutions, may constitute an unlawful intervention, depending on the circumstances, and at any rate, it may constitute a violation of sovereignty. As various opinions were expressed on the relationship between violation of sovereignty and unlawful intervention at the sixth GGE and the OEWG, it is desirable that a common understanding be forged through State practices and future discussions."[59]

Kenya (2021)

"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."[60]

Netherlands (2019)

"The principle of sovereignty, i.e. that states are equal and independent and hold the highest authority within their own borders, is one of the fundamental principles of international law. More specific rules of international law, such as the prohibition of the use of force, the principle of non-intervention and the right of self-defence stem from this principle. These rules will be discussed in more detail below.

According to some countries and legal scholars, the sovereignty principle does not constitute an independently binding rule of international law that is separate from the other rules derived from it. The Netherlands does not share this view. It believes that respect for the sovereignty of other countries is an obligation in its own right, the violation of which may in turn constitute an internationally wrongful act. This view is supported, for example, by the case law of the International Court of Justice, which ruled in Nicaragua v. United States of America that the United States had acted in breach of its obligation under customary international law not to violate the sovereignty of another state. Below the government will discuss the significance of this obligation in more detail.

Firstly, sovereignty implies that states have exclusive jurisdiction over all persons, property and events within their territory, within the limits of their obligations under international law, such as those relating to diplomatic privileges and immunity, and those arising from human rights conventions. This is the internal aspect of sovereignty. Secondly, sovereignty implies that states may freely and independently determine their own foreign policy, enter into international obligations and relations, and carry out activities beyond their own borders, provided they respect the rules of international law. This is the external aspect of sovereignty.

Both aspects apply equally in cyberspace. States have exclusive authority over the physical, human and immaterial (logical or software-related) aspects of cyberspace within their territory. Within their territory they may, for example, set rules concerning the technical specifications of mobile networks, cybersecurity and resilience against cyberattacks, take measures to combat cybercrime, and enforce the law with a view to protecting the confidentiality of personal data. In addition, they may independently pursue foreign ‘cyber’ policy and enter into treaty obligations in the area of cybersecurity. The Netherlands’ decision to accede to the Convention on Cybercrime of the Council of Europe is an example of the exercise of Dutch sovereignty.

States have an obligation to respect the sovereignty of other states and to refrain from activities that constitute a violation of other countries’ sovereignty. Equally, countries may not conduct cyber operations that violate the sovereignty of another country. It should be noted in this regard that the precise boundaries of what is and is not permissible have yet to fully crystallise. This is due to the firmly territorial and physical connotations of the traditional concept of sovereignty. The principle has traditionally been aimed at protecting a state's authority over property and persons within its own national borders. In cyberspace, the concepts of territoriality and physical tangibility are often less clear. It is possible, for example, for a single cyber operation to be made up of numerous components or activities initiated from or deployed via different countries in a way that cannot always be traced. In addition, there are various ways of masking the geographic origin of activities performed in cyberspace. What is more, data stored using a cloud-based system is often moved from one location to another, and those locations are not always traceable. So it is by no means always possible to establish whether a cyber operation involves a cross-border component and thus violates a country's sovereignty. Even if the origin or route of a cyber operation can be established, these kinds of operations do not always have a direct physical or tangible impact.

From the perspective of law enforcement (which is part of a state’s internal sovereignty), the manner in which the principle of sovereignty should be applied has not fully crystallised at international level either. Shared investigative practices do seem to be developing in Europe and around the world, however. Data relevant to criminal investigations is increasingly stored beyond national borders, for example in the cloud, in mainly private data centres. And when it comes to criminal offences committed on, or by means of, the internet, the location of data – including malicious software or code – and physical infrastructure is often largely irrelevant. It is easy to hide one’s identity and location on the internet, moreover, and more and more communications are now encrypted. Even in purely domestic criminal cases – including cybercrime – where the suspect and victim are both in the Netherlands, cyber investigations often encounter data stored beyond our borders, particularly when investigators require access to data held by online service providers or hosting services, or need to search networks or (covertly) gain remote entry to an automated system. The act of exercising investigative powers in a cross-border context is traditionally deemed a violation of a country’s sovereignty unless the country in question has explicitly granted permission (by means of a treaty or other instrument). Opinion is divided as to what qualifies as exercising investigative powers in a cross-border context and when it is permissible without a legal basis founded in a treaty. In cyberspace too, countries’ practices differ in their practical approaches to the principle of sovereignty in relation to criminal investigations. The Netherlands actively participates in international consultations on the scope for making investigations more effective, paying specific attention to ensuring the right safeguards are in place.

In general the government endorses Rule 4, proposed by the drafters of the Tallinn Manual 2.0, on establishing the boundaries of sovereignty in cyberspace.5 Under this rule, a violation of sovereignty is deemed to occur if there is 1) infringement upon the target State’s territorial integrity; and 2) there has been an interference with or usurpation of inherently governmental functions of another state. The precise interpretation of these factors is a matter of debate."[61]

New Zealand (2020)

"The principle of sovereignty prohibits the interference by one state in the inherently governmental functions of another and prohibits the exercise of state power or authority on the territory of another state. In the physical realm, the principle has legal effect through the prohibition on the use of force, through the rule of non-intervention and also through a standalone rule of territorial sovereignty. Subject to limited exceptions (e.g. authorisation by the United Nations Security Council, self-defence, consent), that standalone rule prohibits a state from sending its troops or police forces into or through, or its aircraft over, foreign territory, and prohibits a state from carrying out official investigations or otherwise exercising jurisdiction on foreign territory.

In the cyber realm, the principle of sovereignty is given effect through the prohibition on the use of force and the rule of non-intervention. New Zealand considers that the standalone rule of territorial sovereignty also applies in the cyber context but acknowledges that further state practice is required for the precise boundaries of its application to crystallise.

In New Zealand’s view, the application of the rule of territorial sovereignty in cyberspace must take into account some critical features that distinguish cyberspace from the physical realm. In particular: i) cyberspace contains a virtual element which has no clear territorial link; ii) cyber activity may involve cyber infrastructure operating simultaneously in multiple territories and diffuse jurisdictions; and iii) the lack of physical distance in cyberspace means malicious actors can apply instantaneous effects on targets without warning. These features present unique opportunities for malicious actors and significant defensive challenges for states. They also make it difficult for states to prevent malicious cyber activity being conducted from or routed through their territory.

Bearing those factors in mind, and having regard to developing state practice, New Zealand considers that territorial sovereignty prohibits states from using cyber means to cause significant harmful effects manifesting on the territory of another state. However, New Zealand does not consider that territorial sovereignty prohibits every unauthorised intrusion into a foreign ICT system or prohibits all cyber activity which has effects on the territory of another state. There is a range of circumstances – in addition to pure espionage activity – in which an unauthorised cyber intrusion, including one causing effects on the territory of another state, would not be internationally wrongful. For example, New Zealand considers that the rule of territorial sovereignty as applied in the cyber context does not prohibit states from taking necessary measures, with minimally destructive effects, to defend against the harmful activity of malicious cyber actors.

A detailed factual enquiry is required in each case to determine whether state cyber activity that has effects manifesting on the territory of another state, but which does not amount to a use of force or a prohibited intervention, nonetheless involves a violation of the standalone rule of territorial sovereignty. That factual enquiry should take into account the scale and significance of the effects, the objective of the activity, and the nature of the target."[62]

Norway (2021)

Key message
Sovereignty is not just a principle, but also a primary rule of international law.

A State must not conduct cyber operations that violate another State’s sovereignty.

Whether a cyber operation violates the target State’s sovereignty depends on the nature of the operation, the scale of the intrusion and its consequences, and must be assessed on a case-by-case basis.

"The principle of sovereignty is one of the fundamental principles of international law and applies in cyberspace. It refers to the supreme authority of every State within its territory to the exclusion of other States, and also in its relations with other States.

The internal dimension of a State’s sovereignty includes the exclusive right to exercise jurisdiction within its territory, including over the information systems located on its territory, and to exercise independent State powers. The external dimension includes the right of the State to decide its foreign policy and to enter into international agreements. Both dimensions of sovereignty apply in cyberspace, subject only to obligations under international law.

Norway is of the view that sovereignty constitutes both an international law principle from which various rules derive, such as the prohibition of intervention and the prohibition of the use of force, and a primary rule in its own right capable of being violated. Thus, cyber operations that do not amount to a prohibited intervention or a prohibited use of force may nevertheless amount to a violation of a State’s sovereignty under international law.

The International Court of Justice (ICJ) has consistently held that States have an obligation to respect the territorial integrity and political independence of other States as a matter of international law. In a cyber context this means that a State must not conduct cyber operations that violate another State’s sovereignty.

A cyber operation that manifests itself on another State’s territory may, depending on its nature, the scale of the intrusion and its consequences, constitute a violation of sovereignty.

Causing physical damage by cyber means on another State’s territory may easily qualify as a violation of territorial sovereignty. For example, a cyber operation against an industrial control system at a petrochemical plant that led to a malfunction and a subsequent fire would constitute a violation of the State’s territorial sovereignty. In addition to physical damage, causing cyber infrastructure to lose functionality may also be taken into consideration and may amount to a violation. This includes the use of crypto viruses to encrypt data and thus render them unusable for a substantial period of time.

The principle of sovereignty encompasses cyber infrastructure located in a State’s territory irrespective of whether it is governmental or private.

Similarly, a cyber operation that interferes with or usurps the inherently governmental functions of another State may constitute a violation of sovereignty.

This is based on the premise that a State enjoys the exclusive right to exercise within its territory, ‘to the exclusion of any other State, the functions of a State’. Accordingly, what matters is not whether physical damage, injury, or loss of functionality has resulted, but whether the cyber operation has interfered with data or services that are necessary for the exercise of inherently governmental functions. Cases in point would include altering or deleting data or blocking digital communication between public bodies and citizens so as to interfere with the delivery of social services, the conduct of elections, the collection of taxes, or the performance of key national defence activities. Another example could be the manipulation of police communications so that patrol cars are unable to communicate with police dispatch/operation centres. In this context it is irrelevant whether the inherently governmental function is performed by central, regional or local governments and authorities, or by non-governmental bodies in the exercise of powers delegated by such governments or authorities. Conducting elections is a clear example of an inherently governmental function. In contrast to the case of a cyber operation in breach of the prohibition of intervention, there is no requirement for the interference to reach to the level of coercion.

The precise threshold of what constitute a cyber operation in violation of sovereignty is not settled in international law, and will depend on a case-by-case assessment."[63]

Romania (2021)

"Romania considers that respect for the state sovereignty is an international obligation per se, the breach of which constitutes an internationally wrongful act; States have an obligation to respect the sovereignty of other States and refrain from activities that constitute a violation of their sovereignty; this holds true both in what concerns the internal as well as the external facet of the principle of sovereignty.

At the same time, we acknowledge that the difficulty in relation to this principle lies in the absence in cyberspace context of the territoriality and physical dimensions, which are the specific elements of the analysis when dealing with the sovereignty in the traditional sense.

In relation to these aspects, RO is of the view that cyber operations (conducted by a State organ or by a person or entity exercising elements of governmental authority or by a person acting under the instructions of or under the direction or control of a State) that interferes with or prevents in any way a State from exercising its (internal and/ or external) sovereign prerogatives (i.e. authority over its territory, over the property and persons situated therein) constitute a violation of the principle of State sovereignty and, thus, a breach of international law.

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."[64]

Singapore (2021)

"Singapore affirms that the following key principles enshrined in the UN Charter apply in cyberspace as they do in the physical world, and are of fundamental importance to small States, such as Singapore:

  • First, the principles of State sovereignty and sovereign equality of all States. Singapore’s position is that a cyber operation could, in certain circumstances, amount to a violation of sovereignty.[65]

Sweden (2022)

"The principle of sovereign equality of States is also applicable to cyberspace. Within their territories, States have jurisdiction and the right to exercise authority within the framework of international law. At international level, States are independent and enjoy sovereign equality in relation to other States. State sovereignty provides a basic foundation for other principles and rules such as those governing the prohibition of intervention and the prohibition of the use of force. However, States also have an obligation to respect the sovereignty of other States, and a breach of this obligation would amount to a wrongful act and give rise to State responsibility.

A State’s jurisdiction and authority apply to persons and objects within its territorial borders, including cyber-related activities. A State has a right to protect persons and objects within its territory, or otherwise under its jurisdiction, against interference by cyber means. A State’s authority and jurisdiction include a responsibility not to allow knowingly its territory to be used for acts contrary to the rights of other States.

In general, Sweden is of the view that violations of sovereignty may arise from cyber operations that result in damage or loss of functionality. Altering and interfering with data without causing physical harm may also violate sovereignty. Such acts include those directed against cyber infrastructure belonging to private individuals or entities. Interference with a State’s inherently governmental functions may also constitute a violation of State sovereignty, including when undertaken with cyber means.

Whether an intrusion has in fact resulted in a violation of sovereignty needs to be assessed on a case-by-case basis taking into consideration the nature and character of the intrusion."[66]

Switzerland (2021)

"State sovereignty is also applicable to cyberspace. Owing to the special characteristics of cyberspace, which has no clear territorial boundaries, putting the principle of sovereignty into practice is a particular challenge. One major issue is who has jurisdiction over or access to digital data. In the cyber context, the key question is which states have legitimate control over digital data and are authorised to access that data – which may, depending on the circumstances, be stored on a different territory or may not be localised geographically. Conversely, in terms of interstate relations at cybersecurity level, the principle of sovereignty provides wide scope for protection against cyber operations.For example, state sovereignty protects information and communication technologies (ICT) infrastructure on a state's territory against unauthorised intrusion or material damage. This includes the computer networks, systems and software supported by the ICT infrastructure, regardless of whether the infrastructure is private or public.

Switzerland recognises that defining what constitutes a violation of the principle of sovereignty in cyberspace is particularly challenging and has yet to be clarified conclusively. It supports considering the following two criteria in such assessments: first, does the incident violate the state's territorial integrity and second, does it constitute interference with or usurpation of an inherently governmental function. A precise definition of these criteria is a question of interpretation and subject to debate. The current debate includes among other aspects i) incidents whereby the functionality of infrastructure or related equipment has been damaged or limited, ii) cases where data has been altered or deleted, interfering with the fulfilment of inherently governmental functions such as providing social services, conducting elections and referendums, or collecting taxes, and iii) situations in which a state has sought to influence, disrupt or delay democratic decision-making processes in another state through the coordinated use of legal and illegal methods in cyberspace e.g. propaganda, disinformation and covert actions by intelligence services. The assessment of an individual case depends on the nature of the cyber incident and its repercussions."[67]

United Kingdom (2018)

"[..]a further contested area amongst those engaged in the application of international law to cyber space is the regulation of activities that fall below the threshold of a prohibited intervention, but nonetheless may be perceived as affecting the territorial sovereignty of another state without that state’s prior consent. Some have sought to argue for the existence of a cyber specific rule of a “violation of territorial sovereignty” in relation to interference in the computer networks of another state without its consent. Sovereignty is of course fundamental to the international rules-based system. But I am 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.[68]

United Kingdom (2021)

"Sovereignty, as a general principle, is a fundamental concept in international law. The United Kingdom recalls that any prohibition on the activities of States whether in relation to cyberspace or other matters, must be clearly established either in customary international law or in a treaty binding upon the States concerned. The United Kingdom does not consider that the general concept of sovereignty by itself provides a sufficient or clear basis for extrapolating a specific rule or additional prohibition for cyber conduct going beyond that of non-intervention referred to above. At the same time, the United Kingdom notes that differing viewpoints on such issues should not prevent States from assessing whether particular situations amount to internationally wrongful acts and arriving at common conclusions on such matters."[69]

United Kingdom (2022)

"States have expressed different views on the precise significance of sovereignty in cyberspace. The UK reiterated its own position on this point as recently as June 2021. Namely, that any prohibition on the activities of States, whether in relation to cyberspace or other matters, must be clearly established in international law. The general concept of sovereignty by itself does not provide a sufficient or clear basis for extrapolating a specific rule of sovereignty or additional prohibition for cyber conduct going beyond that of non-intervention."[70]

United States (2012)

"States conducting activities in cyberspace must take into account the sovereignty of other states, including outside the context of armed conflict. The physical infrastructure that supports the Internet and cyber activities is generally located in sovereign territory and subject to the jurisdiction of the territorial state. Because of the interconnected, interoperable nature of cyberspace, operations targeting networked information infrastructures in one country may create effects in another country. Whenever a state contemplates conducting activities in cyberspace, the sovereignty of other states needs to be considered."[71]

United States (2016)

"[..] remote cyber operations involving computers or other networked devices located on another State’s territory do not constitute a per se violation of international law. In other words, there is no absolute prohibition on such operations as a matter of international law. This is perhaps most clear where such activities in another State’s territory have no effects or de minimis effects.

Most States, including the United States, engage in intelligence collection abroad. As President Obama said, the collection of intelligence overseas is “not unique to America.” As the President has also affirmed, the United States, like other nations, has gathered intelligence throughout its history to ensure that national security and foreign policy decisionmakers have access to timely, accurate, and insightful information. Indeed, the President issued a directive in 2014 to clarify the principles that would be followed by the United States in undertaking the collection of signals intelligence abroad.

Such widespread and perhaps nearly universal practice by States of intelligence collection abroad indicates that there is no per se prohibition on such activities under customary international law. I would caution, however, that because “intelligence collection” is not a defined term, the absence of a per se prohibition on these activities does not settle the question of whether a specific intelligence collection activity might nonetheless violate a provision of international law.

Although certain activities—including cyber operations — may violate another State’s domestic law, that is a separate question from whether such activities violate international law. The United States is deeply respectful of other States’ sovereign authority to prescribe laws governing activities in their territory. Disrespecting another State’s domestic laws can have serious legal and foreign policy consequences. As a legal matter, such an action could result in the criminal prosecution and punishment of a State’s agents in the United States or abroad, for example, for offenses such as espionage or for violations of foreign analogs to provisions such as the U.S. Computer Fraud and Abuse Act. From a foreign policy perspective, one can look to the consequences that flow from disclosures related to such programs. But such domestic law and foreign policy issues do not resolve the independent question of whether the activity violates international law."[72]

United States (2020)

"As a threshold matter, in analyzing proposed cyber operations, DoD lawyers take into account the principle of State sovereignty. States have sovereignty over the information and communications technology infrastructure within their territory. The implications of sovereignty for cyberspace are complex, and we continue to study this issue and how State practice evolves in this area, even if it does not appear that there exists a rule that all infringements on sovereignty in cyberspace necessarily involve violations of international law."[73]

United States (2021)

"As recognized in the 2013 and 2015 GGE reports, State sovereignty and the international principles that flow from sovereignty apply to States’ ICT-related activities and to their jurisdiction over ICT infrastructure within their territory.

The United States believes that State sovereignty, among other long-standing international legal principles, must be taken into account in the conduct of activities in cyberspace. Whenever a State contemplates conducting activities in cyberspace, the equal sovereignty of other States needs to be considered.

The implications of sovereignty for cyber activities are complex, but we can start by noting two important implications of sovereignty for ICT-related activities. First, we acknowledge the continuing relevance of territorial jurisdiction, even to cyber activities, and second, we acknowledge the exercise of jurisdiction by the territorial State is not unlimited; it must also be consistent with applicable international law, including international human rights obligations."[74]

"In certain circumstances, one State’s non-consensual cyber operation in another State’s territory, even if it falls below the threshold of a use of force or non-intervention, could also violate international law. However, a State’s remote cyber operations involving computers or other networked devices located on another State’s territory do not constitute a per see violation of international law. In other words, there is no absolute prohibition on such operations as a matter of international law. This is perhaps most clear where such activities in another State’s territory have no effects or de minimise effects. The very design of the Internet may lead to some encroachment on other sovereign jurisdictions."[75]

Appendixes

See also

Notes and references

  1. Island of Palmas (Neth. v. U.S.), 2 RIAA 829, 838 (Perm. Ct. Arb. 1928).
  2. UNGA Res 71/237 (30 December 2015) UN Doc A/RES/20/237.
  3. 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.
  4. 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.
  5. 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).
  6. Michael N Schmitt, 'Virtual Disenfranchisement: Cyber Election Meddling in the Grey Zones of International Law' (2018) 19 ChiJIntlL 30,40; Tallinn Manual 2.0, commentary to rule 4, para 2 (‘States shoulder an obligation to respect the sovereignty of other States as a matter of international law’).
  7. 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’.
  8. 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.’
  9. 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.’
  10. 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’.
  11. 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’.
  12. 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.’).
  13. 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’.
  14. 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’).
  15. 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’); see also Memorandum from JM O’Connor, General Counsel of the Department of Defense, ‘International Law Framework for Employing Cyber Capabilities in Military Operations’ (19 January 2017) (considering that sovereignty is not ‘a binding legal norm, proscribing cyber actions by one State that result in effects occurring on the infrastructure located in another State, or that are manifest in another State’), as cited by Sean Watts & Theodore Richard, 'Baseline Territorial Sovereignty and Cyberspace' (2018) 22 Lewis & Clark L. Rev. 771, 829.
  16. 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’.
  17. Cf. James Crawford, Brownlie's Principles of Public International Law (OUP 2012) 448.
  18. Tallinn Manual 2.0, rule 2.
  19. 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.')
  20. 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.
  21. Tallinn Manual 2.0, commentary to rule 4, para 5 and 12.
  22. 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.
  23. Tallinn Manual 2.0, commentary to rule 4, para 7; commentary to rule 32, para 9.
  24. Tallinn Manual 2.0, commentary to rule 4, para 11.
  25. Tallinn Manual 2.0, commentary to rule 4, para 12.
  26. Tallinn Manual 2.0, commentary to rule 4, para 13.
  27. Tallinn Manual 2.0, commentary to rule 4, para 14.
  28. Tallinn Manual 2.0, commentary to rule 4, para 15.
  29. Tallinn Manual 2.0, commentary to rule 4, para 16.
  30. Tallinn Manual 2.0, commentary to rule 4, para 18.
  31. Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), p. 4.
  32. Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019), p. 3.
  33. French Ministry of the Armies, International Law Applied to Operations in Cyberspace, p. 6.
  34. In favour: see, eg, 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.
  35. Australian Government, Australia's position on how international law applies to State conduct in cyberspace
  36. 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.
  37. Government of Canada, International Law applicable in cyberspace, April 2022
  38. Government of Canada, International Law applicable in cyberspace, April 2022, See Footnote [14], International law provides for exceptions to the rule on territorial sovereignty such as those actions (i) authorised by the United Nations Security Council; (ii) taken in self-defence in relation to an armed attack; (iii) consented to by the affected State; or (iv) that constitute countermeasures. These exceptions apply in cyberspace.
  39. Government of Canada, International Law applicable in cyberspace, April 2022, See Footnote [15], Schmitt, Michael N., Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, 2d ed (Cambridge: Cambridge University Press, 2017) at 20 para. 10 [hereinafter Tallinn Manual 2.0].
  40. Government of Canada, International Law applicable in cyberspace, April 2022
  41. Government of Canada, International Law applicable in cyberspace, April 2022, See Footnote [16], Of note, espionage, while not per se wrongful under international law, could be carried out in a way that might violate international law. See generally Tallinn Manual 2.0, supra note 15, Rule 4 and its discussion of cyber espionage at 19 paras 7-9.
  42. Government of Canada, International Law applicable in cyberspace, April 2022, See Footnote [17], For example, in Canada economic espionage is a violation of section 19 of the Security of Information Act (R.S.C. 1985, c.O-5), and every person who commits an offence under subsection 19(1) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years.
  43. Government of Canada, International Law applicable in cyberspace, April 2022
  44. China's Positions on International Rules-making in Cyberspace, Ministry of Foreign Affairs of the People's Republic of China.
  45. Richard Kadlčák, Statement of the Special Envoy for Cyberspace and Director of Cybersecurity Department of the Czech Republic, 11 February 2020, 3
  46. President of Estonia: international law applies also in cyber space, 29 May 2019
  47. 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, 24-25.
  48. International law and cyberspace - Finland's national position
  49. Ministry of Defense of France, International Law Applied to Operations in Cyberspace, 9 September 2019, 6.
  50. Ministry of Defense of France, International Law Applied to Operations in Cyberspace, 9 September 2019, 7.
  51. Ministry of Defense of France, International Law Applied to Operations in Cyberspace, 9 September 2019, 7.
  52. Federal Government of Germany, ‘On the Application of International Law in Cyberspace’, Position Paper (March 2021) 2-3.
  53. Federal Government of Germany, ‘On the Application of International Law in Cyberspace’, Position Paper (March 2021) 3-4.
  54. Declaration of General Staff of the Armed Forces of the Islamic Republic of Iran Regarding International Law Applicable to the Cyberspace, August 2020
  55. Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.
  56. Italian position paper on "International law and cyberspace", Italian Ministry for Foreign Affairs and International Cooperation.,4.
  57. "Ministry of Foreign Affairs of Japan, Basic Position of the Government of Japan on International Law Applicable to Cyber Operations, 16 June 2021, 2
  58. Ministry of Foreign Affairs of Japan, Basic Position of the Government of Japan on International Law Applicable to Cyber Operations, 16 June 2021, 2-3
  59. Ministry of Foreign Affairs of Japan, Basic Position of the Government of Japan on International Law Applicable to Cyber Operations, 16 June 2021, 3
  60. 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.
  61. Government of the Kingdom of the Netherlands, Appendix: International law in cyberspace, 26 September 2019 , 1-3.
  62. The Application of International Law to State Activity in Cyberspace, 1 December 2020, 2-3.
  63. 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, 67-68.
  64. 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.
  65. 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, 83.
  66. Government Offices of Sweden, Position Paper on the Application of International Law in Cyberspace, July 2022,2
  67. Federal Department of Foreign Affairs, ‘Switzerland's position paper on the application of international law in cyberspace’ (May 2021) 2-3.
  68. Attorney General Jeremy Wright:Cyber and International Law in the 21st Century, 23 May 2018
  69. United Kingdom Foreign, Commonwealth & Development Office, Application of international law to states’ conduct in cyberspace: UK statement, 3 June 2021
  70. Attorney General Suella Braverman: International Law in Future Frontiers, 19 May 2022
  71. Harold Hongju Koh, International Law in Cyberspace, 18 September 2012, 6
  72. Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016 11-13.
  73. Hon. Paul C. Ney, Jr., DOD General Counsel Remarks at U.S. Cyber Command Legal Conference, 2 March, 2020
  74. 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, 139.
  75. 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, 140.

Bibliography and further reading

With regard to incidents 1–3, the answer depends on whether the espionage operation was fully conducted from outside of State A’s territory, or whether a part of it was conducted by operators physically located in State A’s territory. In the latter case, the operation could be considered a violation of sovereignty, and hence State B’s breach of its corresponding international obligation (option 1 above).[1]

Taken separately, the publication of the acquired data (incident 4) would not violate the sovereignty of State A. Had the published information been classified in State A, then the publication is likely illegal according to State A’s domestic law; State A can also be party to international agreements which regulate the transfer of its classified information to third parties, which may create obligations for third States with regard to this information.[2]

Prohibited intervention

In the present scenario, prohibited intervention could also be a relevant qualification. The incidents encroach on State A’s external affairs which are the sole prerogative of State A. However, incidents 1–3 do not contain the element of coercion, because they are conducted merely with the aim to gather information, which does not compel State A to adapt the conduct of its external affairs.[3]

As for incident 4, if it can be attributed to State B, it is coercive in the sense that it has the potential to cause State A to adapt its external affairs based on the published information and to contain the relevant political damage. It may be harder for State A to ascertain the intent of State B, which might have had no particular outcome in mind, apart from causing mischief. This might also pose an issue for establishing the causal nexus between State B’s activity and the resulting reaction by State A: the causality might not be deemed direct enough.

Espionage

In general

Peacetime cyber espionage
Peacetime espionage has been traditionally considered as unregulated by international law. This is also reflected in the Tallinn Manual 2.0, which posits that ‘[a]lthough peacetime cyber espionage by States does not per se violate international law, the method by which it is carried out might do so.’[4]

However, the methods of peacetime cyber espionage are varied and the legal consensus is almost non-existent with regard to cyber operations below the threshold of use of force or armed attack.

It must be noted that although cyber espionage operations are generally not illegal from the perspective of international law, they are usually prohibited according to the domestic law of the target State. Moreover, the acting State’s authorities will also typically be subject to specific domestic law prescriptions pertaining to the conduct of foreign intelligence operations.

Conversely, the mere fact that an operation is a cyber espionage operation does not make it legal in international law, according to a majority of the experts drafting Tallinn Manual 2.0.[5] According to a minority of the experts, espionage creates an exception for certain otherwise illegal cyber operations.[6]

Publicly available national positions that address this issue include: National position of the United States of America (2020) (2020), National position of the United States of America (2021) (2021).

Economic cyber espionage

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.”[7] 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.”[8] In September 2015, the US and China agreed on a similar commitment on a bilateral basis.[9]

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.[10] Several authors,[11] including experts of the Tallinn Manual 2.0,[12] consider that there is no distinction between economic cyber espionage and other forms of cyber espionage in general international law.[13] Additionally, no international consensus exists that agreements such as the WTO TRIPS[14] 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.[15]

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

National positions

United States (2020)

"For cyber operations that would not constitute a prohibited intervention or use-of-force, 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. This proposition is recognized in the Department’s adoption of the “defend forward” strategy: “We will defend forward to disrupt or halt malicious cyber activity at its source, including activity that falls below the level of armed conflict.” The Department’s commitment to defend forward including to counter foreign cyber activity targeting the United States—comports with our obligations under international law and our commitment to the rules-based international order.

The DoD OGC view, which we have applied in legal reviews of military cyber operations to date, shares similarities with the view expressed by the U.K. Government in 2018. We recognize that there are differences of opinion among States, which suggests that State practice and opinio juris are presently not settled on this issue. Indeed, many States’ public silence in the face of countless publicly known cyber intrusions into foreign networks precludes a conclusion that States have coalesced around a common view that there is an international prohibition against all such operations (regardless of whatever penalties may be imposed under domestic law).

Traditional espionage may also be a useful analogue to consider. Many of the techniques and even the objectives of intelligence and counterintelligence operations are similar to those used in cyber operations. Of course, most countries, including the United States, have domestic laws against espionage, but international law, in our view, does not prohibit espionage per se even when it involves some degree of physical or virtual intrusion into foreign territory. There is no anti-espionage treaty, and there are many concrete examples of States practicing it, indicating the absence of a customary international law norm against it. In examining a proposed military cyber operation, we may therefore consider the extent to which the operation resembles or amounts to the type of intelligence or counterintelligence activity for which there is no per se international legal prohibition.

Of course, as with domestic law considerations, establishing that a proposed cyber operation does not violate the prohibitions on the use of force and coercive intervention does not end the inquiry. These cyber operations are subject to a number of other legal and normative considerations."[16]

United States (2021)

"In certain circumstances, one State’s non-consensual cyber operation in another State’s territory, even if it falls below the threshold of a use of force or non-intervention, could also violate international law. However, a State’s remote cyber operations involving computers or other networked devices located on another State’s territory do not constitute a per see violation of international law. In other words, there is no absolute prohibition on such operations as a matter of international law. This is perhaps most clear where such activities in another State’s territory have no effects or de minimise effects. The very design of the Internet may lead to some encroachment on other sovereign jurisdictions."[17]

Appendixes

See also

Notes and references

  1. Tallinn Manual 2.0, commentary to rule 4, para. 6-7; commentary to rule 32, para. 9.
  2. See, for example, Agreement between the government of the United Kingdom of Great Britain and Northern Ireland and the government of the French Republic concerning the mutual protection of classified information (signed on 27 March 2008 in London, entered into force 1 December 2008, France No. 1 (2008), Cm. 7425, available at [1].
  3. Tallinn Manual 2.0, commentary to rule 66, para. 33.
  4. Tallinn Manual 2.0, rule 32.
  5. Tallinn Manual 2.0, rule 32 and commentary to rule 32, para 6.
  6. Id.; Ashley Deeks, 'An International Legal Framework for Surveillance' (2015) 55 VA.J.INT’LL. 291, 302-3.
  7. President of the United States, ‘International Strategy for Cyberspace: Prosperity, Security, and Openness in a Networked World’ (2011).
  8. 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).
  9. See US, ‘FACT SHEET: President Xi Jinping’s State Visit to the United States’ (25 September 2015).
  10. 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.
  11. 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).
  12. Tallinn Manual 2.0, rule 32, commentary 3.
  13. 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.
  14. 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.
  15. 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.“
  16. Hon. Paul C. Ney, Jr., DOD General Counsel Remarks at U.S. Cyber Command Legal Conference, 2 March, 2020
  17. 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, 140.

Bibliography and further reading

As this overview demonstrates, the mere characterization of a cyber operation as amounting to cyber espionage is not conclusive as to the question of its lawfulness under international law.[1] Reference must be had to specific rules of international law, which may be breached by the operation in question in its specific circumstances (see especially Sovereignty and Prohibited intervention above). It may be noted that there is a view that acts of espionage represent a customary exception to the relevant prohibitions.[2] However, this interpretation would amount to the establishment of a novel circumstance precluding wrongfulness, for which there is no evidence in international law. Accordingly, the lawfulness of incidents 1–4 therefore must be assessed with reference to other applicable international legal rules.

Due diligence

The due diligence obligation of State B for the abovementioned incidents is superseded by its direct responsibility for the activities of its governmental organs. On State B’s part, there is no omission, but rather a commission of an internationally wrongful act.[3]

Checklist

  • Do the affected materials come under the duty of inviolability?
  • Does the exfiltration and publication of data violate the sovereignty of the victim State?
  • Does the exfiltration and publication of data amount to a prohibited intervention?
  • Is the fact that part of the operation is cyber espionage an important circumstance for the il/legality of the operation?

Appendixes

See also

Notes and references

  1. See also Tallinn Manual 2.0, commentary to rule 32, para. 6 (“By styling a cyber operation as a ‘cyber espionage operation’, a State cannot ... claim that it is by definition lawful under international law; its lawfulness depends on whether the way in which the operation is carried out violates any international law obligations that bind the State.”).
  2. See, for example, Tallinn Manual 2.0, commentary to rule 32, para. 9; A Deeks, “An International Legal Framework for Surveillance”, (2015) 55 Va J Int’l L 291, 302.
  3. Tallinn Manual 2.0, commentary to rule 6, para. 43.

Bibliography and further reading

  • MN Schmitt (ed), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (CUP 2017)
  • Etc.

External links

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Original text by: Tomáš Minárik

Reviewed by: [TBC]