Difference between revisions of "Scenario 03: Cyber operation against the power grid"

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(editing references)
(editing references)
Secondly, although UN GGE reports are based on the consensus of governmental experts selected on the basis of equitable geographical representation,<ref> UNGA Res 68/243 (27 December 2013) UN Doc A/RES/68/243, para 4.</ref> their views cannot be said to automatically reflect customary international law. The mandate of the UN GGE is decidedly not focussed on the identification of customary legal rules; rather, it includes the proposing and promoting of “[v]oluntary, ''non-binding norms'' of responsible State behaviour”.<ref> 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 10. On the distinction between cyber rules and cyber norms, see K Mačák, ‘From Cyber Norms to Cyber Rules: Re-engaging States as Law-makers’ (2017) 30 LJIL 877, 877–99.</ref> As such, the legal valence of any normative statements found in one of the reports must be understood as minimal to none.
 
Finally, even if the GGE did have the mandate and ability to identify relevant rules of custom, it most certainly did not do so with regard to operations against critical national infrastructure. It is manifest from the formulation cited above that the governmental experts did not consider any intentional cyber operation against critical national infrastructure to be internationally unlawful. Rather, they included the phrase “contrary to its obligations under international law”, confirming that on their view, such an operation would only violate international law if there is an ''additional'' obligation that would be breached by the operation in question.<ref>Cf. 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. 13(f).</ref>
 
In sum, the preferred view is that a standalone rule prohibiting cyber operations against critical national infrastructure has not emerged in international law thus far. As such, the incident in the scenario cannot be described as infringing this supposed obligation.