Difference between revisions of "Scenario 05: State investigates and responds to cyber operations against private actors in its territory"

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==== Sovereignty of State B: extraterritorial jurisdiction by State A in State B ====
 
==== Sovereignty of State B: extraterritorial jurisdiction by State A in State B ====
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{{#lst:Sovereignty|Definition|#default=collapsed}}
''(See above for the discussion of sovereignty. This analysis is based on the presumption that sovereignty is a primary rule of international law.)''
 
   
As State A decides to remotely access several computers in State B’s territory in search of evidence (incident 3), it is exercising its enforcement jurisdiction in State B’s territory. Absent State B’s consent or other justification, State A’s action is in violation of State B’s sovereignty.<ref>Tallinn Manual 2.0, commentary to rule 4, para. 18, and to rule 11, para. 7.</ref>
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As State A decides to remotely access several computers in State B’s territory in search of evidence (incident 3), it is exercising its enforcement jurisdiction in State B’s territory. Absent State B’s consent or other justification, State A’s action is in violation of State B’s sovereignty (option 5 - usurpation of inherently governmental functions).<ref>Tallinn Manual 2.0, commentary to rule 4, para. 18, and to rule 11, para. 7.</ref>
   
 
State A might try to justify its actions by invoking countermeasures.
 
State A might try to justify its actions by invoking countermeasures.

Revision as of 12:51, 15 October 2018

This scenario considers a series of malicious cyber operations originating from one State’s territory and targeted against private entities on the territory of another State. In the course of investigation, the victim State opts to penetrate the networks of its adversary without its consent and discovers that the latter’s military personnel was indeed involved in some of the operations. The scenario analyses the degrees of responsibility of the State of origin, the rules it may have breached, and the ability of the victim State to justify its response under the law of countermeasures.

Scenario

Keywords

DDoS, data deletion, attribution, non-State actors, evidence, sovereignty, due diligence, countermeasures

Facts

Important commercial entities and financial institutions in State A fall victim to a massive distributed denial of service (DDoS) type of campaign for several days, resulting in down-time costs that amount to millions of EUR (incident 1).

Later, it is found that some of the computers were infected by malware and that the data, including operating system data, had been damaged or deleted, rendering the computers inoperative (incident 2). Most of the targeted entities have been able to recover the data from back-ups and restore the functionality of the computers, albeit at a substantial cost.

The attack has been claimed by a group called “State B Digital Army” that has been active on the Internet for some time and is openly critical of foreign policy of State A. The group bears a name clearly referring to State B, which has in the past been allegedly involved in State-run cyber espionage operations against State A. State B as such has however never admitted any relation to the group.

The technical aspects of the first incident, or rather its lack of sophistication, seem to suggest that the attackers were just an amateur group. By contrast, the scale of the attack indicates that a State actor could have been involved in some capacity. Also, most of the group’s activities seem to originate from the territory of State B, although the persons involved and their exact location are unknown to State A.

Considering that States A and B have not had mutual diplomatic relations for many years, that State B is uncooperative in mutual legal assistance requests, and that there is a risk of destruction of evidence by State B, State A decides to remotely access several computers in the territory of State B without State B’s consent, in the course of a criminal investigation by State A’s cyber police unit (incident 3).

During the cyber operation against State B, State A discovers that a minority of the attacks indeed originated from the network of State B’s General Staff (incident 4). State A is also able to identify some of the individuals responsible for the attacks and consequently issues arrest warrants for these individuals, two of whom happen to be military personnel of State B working in cyber intelligence (incident 5).

State B denies all allegations, stating that these individuals were acting on their own, outside their working hours, and it decries the “violation of its sovereignty” by State A.

Examples

Legal analysis

For a general overview of the structure of analysis in this section, see Note on the structure of articles.

Attribution to State B

State organs and 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";[1]
  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;[2]
  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."[3]

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).[4]

The fact that the operation against State A was partly launched from the governmental cyber infrastructure of State B, as found out in incident 4, is insufficient for the purposes of attribution of the operation to State B.[5] However, it indicates that State B may have been associated with the operation in question.[6] Nevertheless, as soon as the two officers are identified in incident 5, the situation changes: even though they might have been acting on their own (as State B claimed in the aftermath of the incidents), their conduct would still be attributable to State B. This is because the mere fact that a State organ was acting ultra vires, i.e., in excess of authority or in contravention of instructions, does not remove attribution to the relevant State.[7] It is not necessary to prove that they were getting orders from their superiors, even though such information might be helpful for the purposes of criminal investigation conducted by State A authorities.

The information available to State A after incident 5 supports only an attribution of the conduct of the military personnel of State B to that State. By contrast, there does not seem to be sufficient evidence to link State B to any of the activities of the so-called “State B Digital Army” and its supporters. That being said, there are several options under the law of State responsibility on the basis of which such conduct might in fact be attributable to State B:

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";[8]
  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";[9]
  3. "an insurrectional movement which becomes the new Government of a State";[10] 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".[11]

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".[12]

Options 2–4 are manifestly inapplicable to the facts of the scenario given that there is no indication that the so-called State B Digital Army was exercising any form of governmental authority or attempting to form a State of its own. Option 5 (acknowledgment and adoption) also does not apply to the present facts because State B vehemently denied any association with the cyber operations against State A.

The only remaining mode of attribution is that under option 1, which reflects Article 8 of the ILC’s Draft Articles on State Responsibility (i.e., the existence of instructions, direction, or control). In this regard, the mere fact that State B and the “State B Digital Army” may have shared political goals and aims does not suffice for the purposes of attribution of the latter’s conduct to the former.[13] Similarly, the mere fact that some of the activities were conducted from both government and private cyber infrastructure in State B is not sufficient.[14] What would need to be established is some form of subordination between the non-State actor and the potentially responsible State.[15] As the scenario does not offer any indication of such subordination, it can be concluded that the available facts do not support the attributability of the conduct of State B Digital Army to State B.

Evidence

Evidentiary standards
Evidentiary standards applicable to the attribution of cyber activities are context-dependent.[16] The law of State responsibility as such does not contain generally applicable burdens, standards, or methods of proof,[17] and these matters are instead ordinarily determined by the relevant forum.[18]

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."[19] 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."[20] Nevertheless, there is no obligation to publicly provide the evidence.[21]

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.[22]

In incidents 1 and 2, State A does not have much information to ascertain who was responsible for the cyberattacks. Its decision to gather more evidence by launching a criminal investigation and accessing State B’s networks without asking for permission (incident 3) might be viewed as reasonable with regard to the circumstances (suspected involvement of State B), if there is no better way to obtain more evidence. This can qualify as a countermeasure of State A against State B (see below). However, State A must be aware that it might be committing an internationally wrongful act if State B is not responsible for incidents 1-2, even if the hack-back seemed reasonable in the circumstances.

There is no obligation to publicly provide evidence upon which State A attributes the cyber operation to State B.[23]

Breach of an international obligation by State B

Sovereignty of State A

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.[24]
Multiple declarations by the UN,[25] NATO,[26] OSCE,[27] the European Union,[28] 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.[29] It has also been adopted by several States including Austria,[30] the Czech Republic,[31] Finland,[32] France,[33] Germany,[34] Iran,[35] and the Netherlands.[36]
  • 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.[37] This view has now been adopted by one State, the United Kingdom,[38] and has been endorsed by the U.S. Department of Defense General Counsel.[39] 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.[40] 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.”[41][42]

As a general rule, each State must respect the sovereignty of other States.[43] 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.[44]

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.[45] 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.[46]
  2. Causation of physical damage or injury by remote means;[47] again, “a few” Experts took the position that this is a relevant but not a determinative factor by itself.[48]
  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);[49] 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.[50]
  4. Interference with data or services that are necessary for the exercise of "inherently governmental functions";[51] although the Experts could not conclusively define the term "inherently governmental functions", they agreed that, for example, the conduct of elections would so qualify.[52]
  5. Usurpation of "inherently governmental functions", such as exercise of law enforcement functions in another State’s territory without justification.[53]

The Tallinn Manual’s view of what constitutes a violation of sovereignty has been expressly endorsed by several States including Germany[54] and the Netherlands.[55] 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”.[56]

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.[57]

Publicly available national positions that address this issue include: National position of Australia (2020) (2020), National position of Brazil (2021) (2021), 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 Switzerland (2021) (2021), National position of the United Kingdom (2018) (2018), National position of the United Kingdom (2021) (2021), 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).

The DDoS attacks (incident 1) probably did not amount to a violation of State A’s sovereignty. There were no physical consequences, even though some individuals and entities in State A could be ‘physically’ affected by being unable to pay for goods and services, and there were significant economic losses as a result of the attacks. The loss of functionality was only temporary.[58]

Inherently governmental functions were probably not affected by incident 1 – the inability to pay invoices might have some effect on the functioning of some government organizations in State A, but the causation is probably not proximate enough given the short timeframe of the incident (several days). The organizations can postpone the payments due to unforeseeable and irresistible circumstances, which likely mitigates any adverse effects on their functions.

However, the deletion of data (incident 2), leading to a loss of functionality, could qualify as a violation of State A’s sovereignty (option 3 above)[59]. This is regardless of the fact that the affected infrastructure was non-governmental.[60]

Prohibited intervention by State B

Prohibition of intervention
The obligation of non-intervention, a norm of customary international law prohibits States from intervening coercively in the internal or external affairs of other States. Prohibited intervention was authoritatively defined by the International Court of Justice in the judgment on the merits in the 1986 case Nicaragua v United States:
A prohibited intervention must … be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones.[61]
In order for an act, including a cyber operation, to qualify as a prohibited intervention, it must fulfil the following conditions:
  1. The act must bear on those matters in which States may decide freely. The spectrum of such issues is particularly broad and it includes both internal affairs (such as the “choice of a political, economic, social, and cultural system”[61] or the conduct of national elections[62]), and external affairs (“formulation of foreign policy”;[61] “recognition of states and membership of international organisations”[63])—the so-called domaine réservé of States.[64] The content of the domaine réservé is determined by the scope and nature of the State's international legal obligations.
  2. The act must be coercive in nature. There is no generally accepted definition of “coercion” in international law. In this respect, two main approaches have emerged in the cyber context:[65]
    1. Under the first approach, an act is coercive if it is specifically designed to compel the victim State to change its behaviour with respect to a matter within its domaine reservé.[66] Under this approach, the “key is that the coercive act must have the potential for compelling the target State to engage in an action that it would otherwise not take (or refrain from taking an action it would otherwise take)”.[67]
    2. Under the second approach giving meaning to “coercion”, it is sufficient for an act to effectively deprive the target State of its ability to control or govern matters within its domaine reservé.[68] This latter approach distinguishes itself from the former by accepting that mere deprivation of the target State’s control over a protected matter, without actually or potentially compelling that State to change its behaviour, may constitute intervention.[69]
    Under both approaches, however, merely influencing the target State by persuasion or propaganda or causing a nuisance without any particular goal is insufficient to qualify as coercion.[70] The element of coercion also entails the requirement of intent.[71]
  3. Finally, there has to be a causal nexus between the coercive act and the effect on the internal or external affairs of the target State.[72]

Publicly available national positions that address this issue include: National position of Australia (2020) (2020), National position of Brazil (2021) (2021), National position of Estonia (2021) (2021), 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 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 Switzerland (2021) (2021), National position of the United Kingdom (2018) (2018), National position of the United Kingdom (2021) (2021), 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).

It would be difficult to argue that State B was involved in a prohibited intervention in State A’s internal affairs. To begin with, it is uncertain whether State A’s domaine réservé — in itself an imprecise category under international law — was affected by incidents 1-2. The cyber activities were targeting State A’s financial sector, which is traditionally perceived as private, even if State A had a share in its ownership. Perhaps if the operations had been directed at State A’s central bank or at the integrity of financial data upon which State A’s pension or welfare system relied, this would support the qualification of the operation as an intrusion into the domaine réservé.[73]

Even assuming that the first prong of the test was met by the cyber operations in question, there is no evidence that any of the incidents were coercive in nature as against State A. In other words, the available facts do not support any attempt to compel State A to take any action it would otherwise not take.[74] As such, the cyber operations in the scenario do not seem to qualify as a prohibited intervention under international law.

Due diligence obligation of State B

Due diligence
According to the traditional formulation by the ICJ in the Corfu Channel case, every State is under an “obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States”.[75] In the cyber context, the UN General Assembly urged States already in 2000 to “ensure that their laws and practice eliminate safe havens for those who criminally misuse information technologies”.[76]

It is the matter of some controversy whether the principle of due diligence reflects a binding obligation applicable to cyber operations.[77] It has also been proposed that in the cyber context, it is preferable to construe due diligence as a standard of attribution rather than as a standalone primary rule of international law.[78] Nevertheless, the present analysis proceeds on the basis that as a matter of lex lata, due diligence constitutes a general international obligation for every State not to knowingly allow its territory to be used for internationally wrongful acts using cyber means.[79] This view has also been endorsed by several States, including Australia,[80] Czech Republic,[81] Estonia,[82] Finland,[83] France,[84] and the Netherlands.[85]

Due diligence does not entail a duty of prevention,[86] but rather an obligation of conduct.[87] A State breaches its due diligence obligation in the presence of the following cumulative elements:

  1. The existence of acts (by a non-State actor or a third State) contrary to the rights of a victim State,[88]
  2. which are conducted from or through the territory of the potentially responsible State (or from or through the territory or cyber infrastructure under its control),[89]
  3. which would have been unlawful if conducted by the potentially responsible State,[90]
  4. which have serious adverse consequences for the victim State,[91]
  5. with respect to which the potentially responsible State has actual or constructive knowledge,[92] and
  6. upon which the potentially responsible State can act, but fails to take all feasible measures.[93]

Publicly available national positions that address this issue include: National position of Australia (2020) (2020), National position of the Czech Republic (2020) (2020), National position of Estonia (2019) (2019), National position of Estonia (2021) (2021), National position of France (2019) (2019), National position of Germany (2021) (2021), National position of Israel (2020) (2020), National position of the Italian Republic (2021) (2021), National position of Japan (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 Switzerland (2021) (2021), National position of the United Kingdom (2021) (2021), National position of the United States of America (2021) (2021).

The due diligence analysis is important in the situation when State A does not have enough evidence to attribute incidents 1-2 to State B directly. If State B is in breach of its obligation of due diligence, State A might still have the option of justifying its responsive operation (incident 3) as a countermeasure.

Following from the above analysis of sovereignty, incident 2 (the deletion of data leading to a loss of functionality) is contrary to the rights of State A, and would have been unlawful if conducted by State B. It would be more difficult to similarly qualify incident 1 (the DDoS attack).

The cyber activities leading to incident 2 were conducted from the cyber infrastructure in the territory of State B; however, State B’s due diligence obligation is not breached solely by the fact that these incidents happened, even though they resulted in serious adverse consequences and were contrary to the rights of State A. State A would have to prove that State B had an actual or constructive knowledge of the harmful cyber activities at the time they were launched, and that it neglected its duty to terminate them.

The information that some of the harmful cyber activities were launched from State B’s government infrastructure is available to State A from incident 4 onwards. Even if it cannot be proved that State B actually gave orders to its organs, or instructed or directed the non-State actors (“State B Digital Army”) to conduct the DDoS attacks and data deletion (see the section on attribution above), the constructive knowledge requirement (“should have known”) triggers the breach of its due diligence obligation for the activities originating from its government cyber infrastructure.[94] State B could argue that its government infrastructure was taken over by non-State actors or a third State, or that it did what was to be expected from a reasonable State to terminate the activities, but the burden of proof would then shift to its side.[95]

State B therefore violated its obligation of due diligence with respect to those harmful cyber activities in the scenario that could not be directly attributed to it. With respect to the conduct that is attributable to State B, that State bears direct responsibility, which supersedes any violation of due diligence.

Sovereignty of State B: extraterritorial jurisdiction by State A in State B

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.[96]
Multiple declarations by the UN,[97] NATO,[98] OSCE,[99] the European Union,[100] 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.[101] It has also been adopted by several States including Austria,[102] the Czech Republic,[103] Finland,[104] France,[105] Germany,[106] Iran,[107] and the Netherlands.[108]
  • 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.[109] This view has now been adopted by one State, the United Kingdom,[110] and has been endorsed by the U.S. Department of Defense General Counsel.[111] 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.[112] 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.”[41][113]

As a general rule, each State must respect the sovereignty of other States.[114] 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.[115]

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.[45] 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.[46]
  2. Causation of physical damage or injury by remote means;[116] again, “a few” Experts took the position that this is a relevant but not a determinative factor by itself.[117]
  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);[118] 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.[119]
  4. Interference with data or services that are necessary for the exercise of "inherently governmental functions";[51] although the Experts could not conclusively define the term "inherently governmental functions", they agreed that, for example, the conduct of elections would so qualify.[52]
  5. Usurpation of "inherently governmental functions", such as exercise of law enforcement functions in another State’s territory without justification.[120]

The Tallinn Manual’s view of what constitutes a violation of sovereignty has been expressly endorsed by several States including Germany[121] and the Netherlands.[122] 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”.[123]

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.[124]

Publicly available national positions that address this issue include: National position of Australia (2020) (2020), National position of Brazil (2021) (2021), 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 Switzerland (2021) (2021), National position of the United Kingdom (2018) (2018), National position of the United Kingdom (2021) (2021), 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."[125]

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."[126]

China (2021)

National position of the People’s Republic of China (2021)

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;"[127]

Estonia (2019)

"Sovereignty entails not only rights, but also obligations."[128]

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."[129]

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."[130]

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".[131]

"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."[132]

"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".[133]

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."[134]

"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."[135]

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."[136]

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."[137]

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."[138]

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."[139]

"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."[140]

"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."[141]

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."[142]

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."[143]

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."[144]

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."[145]

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."[146]

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.[147]

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."[148]

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.[149]

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."[150]

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."[151]

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."[152]

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."[153]

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."[154]

"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."[155]

Appendixes

See also

Notes and references

  1. ILC Articles on State Responsibility, Art 4(1).
  2. ILC Articles on State Responsibility, Art 6.
  3. ILC Articles on State Responsibility, Art 5.
  4. ILC Articles on State Responsibility, Art 7; Tallinn Manual 2.0, commentary to rule 15, paras. 6-7 and 12.
  5. Tallinn Manual 2.0, commentary to rule 15, para. 13.
  6. Tallinn Manual 2.0, commentary to rule 15, para. 13.
  7. ILC, Articles on State Responsibility, Art. 7.
  8. 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.
  9. ILC Articles on State Responsibility, Art 9.
  10. ILC Articles on State Responsibility, Art 10(1).
  11. ILC Articles on State Responsibility, Art 10(2).
  12. ILC Articles on State Responsibility, Art 11.
  13. K Mačák, ‘Decoding Article 8 of the International Law Commission’s Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors’ (2016) 21 JCSL 405, 415 (“the fact of a goal shared by the State and the private actor is insufficient without further evidence establishing the subordination between the two”).
  14. Tallinn Manual 2.0, commentary to rule 15, para. 13-14.
  15. K Mačák, ‘Decoding Article 8 of the International Law Commission’s Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors’ (2016) 21 JCSL 405, 426–27 (noting that all three standards under Article 8 share the need for “a subordinate relationship between the State and the private actor”) (emphasis removed).
  16. 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.
  17. 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.").
  18. Tallinn Manual 2.0, Chapter 4 Section 1, para 8.
  19. 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.’).
  20. Tallinn Manual 2.0, Chapter 4 Section 1, para 10.
  21. 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.
  22. 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.”)
  23. Tallinn Manual 2.0, Chapter 4 Section 1 chapeau, paragraph 13.
  24. Island of Palmas (Neth. v. U.S.), 2 RIAA 829, 838 (Perm. Ct. Arb. 1928).
  25. UNGA Res 71/237 (30 December 2015) UN Doc A/RES/20/237.
  26. 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.
  27. 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.
  28. 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).
  29. 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’).
  30. 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’.
  31. 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.’
  32. 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.’
  33. 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’.
  34. 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’.
  35. 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.’).
  36. 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’.
  37. 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’).
  38. 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.
  39. 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’.
  40. Cf. James Crawford, Brownlie's Principles of Public International Law (OUP 2012) 448.
  41. 41.0 41.1 Tallinn Manual 2.0, rule 2.
  42. 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.')
  43. 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.
  44. Tallinn Manual 2.0, commentary to rule 4, para 5 and 12.
  45. 45.0 45.1 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.
  46. 46.0 46.1 Tallinn Manual 2.0, commentary to rule 4, para 7; commentary to rule 32, para 9.
  47. Tallinn Manual 2.0, commentary to rule 4, para 11.
  48. Tallinn Manual 2.0, commentary to rule 4, para 12.
  49. Tallinn Manual 2.0, commentary to rule 4, para 13.
  50. Tallinn Manual 2.0, commentary to rule 4, para 14.
  51. 51.0 51.1 Tallinn Manual 2.0, commentary to rule 4, para 15.
  52. 52.0 52.1 Tallinn Manual 2.0, commentary to rule 4, para 16.
  53. Tallinn Manual 2.0, commentary to rule 4, para 18.
  54. Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), p. 4.
  55. Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019), p. 3.
  56. French Ministry of the Armies, International Law Applied to Operations in Cyberspace, p. 6.
  57. 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.
  58. But see Tallinn Manual 2.0, commentary to rule 4, para. 14 (noting that some of the experts considered that “a temporary, but significant, loss of functionality, as in the case of a major DDoS operation” would qualify as a violation of the victim State’s sovereignty).
  59. Tallinn Manual 2.0, commentary to rule 4, para. 13.
  60. Tallinn Manual 2.0, commentary to rule 2, para. 3.
  61. 61.0 61.1 61.2 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14, para 205.
  62. Dutch Minister of Foreign Affairs, ‘Letter to the President of the House of Representatives on the International Legal Order in Cyberspace – Appendix: International Law in Cyberspace’ (5 July 2019), 3; Finland, ‘International law and cyberspace: Finland’s national positions’ (15 October 2020), 3; Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), 5.
  63. Dutch Minister of Foreign Affairs, ‘Letter to the President of the House of Representatives on the International Legal Order in Cyberspace – Appendix: International Law in Cyberspace’ (5 July 2019), 3.
  64. See, for example, Katja Ziegler, “Domaine Réservé”, in Rudiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2008) (updated April 2013) (defining the domaine réservé as those “areas where States are free from international obligations and regulation”).
  65. See also Harriet Moynihan, ‘The Vital Role of International Law in the Framework for Responsible State Behaviour in Cyberspace’ (2020) 5 Journal of Cyber Policy __, ___ [10–12 in pre-print].
  66. See, eg, Dutch Minister of Foreign Affairs, ‘Letter to the President of the House of Representatives on the International Legal Order in Cyberspace – Appendix: International Law in Cyberspace’ (5 July 2019) 3, defining coercion as ‘compelling a state to take a course of action (whether an act or an omission) that it would not otherwise voluntarily pursue’ and noting that ‘[t]he goal of the intervention must be to effect change in the behaviour of the target state’; Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), 5, defining coercion as a situation in which a State’s ‘will is manifestly bent by the foreign State’s conduct’ and noting that ‘the acting State must intend to intervene in the internal affairs of the target State’; see also Tallinn Manual 2.0, commentary to rule 66, para 19 (‘The majority of Experts was of the view that the coercive effort must be designed to influence outcomes in, or conduct with respect to, a matter reserved to a target State.’).
  67. Tallinn Manual 2.0, commentary to rule 66, para 21. See also Dutch Minister of Foreign Affairs, ‘Letter to the President of the House of Representatives on the International Legal Order in Cyberspace – Appendix: International Law in Cyberspace’ (5 July 2019), 3.
  68. See, eg, Australia, ‘Supplement to Australia’s Position on the Application of International Law to State Conduct in Cyberspace’ (2019) 4 (‘A prohibited intervention is one that interferes by coercive means (in the sense that they effectively deprive another state of the ability to control, decide upon or govern matters of an inherently sovereign nature), either directly or indirectly, in matters that a state is permitted by the principle of state sovereignty to decide freely.’); New Zealand, ‘The Application of International Law to State Activity in Cyberspace’ (1 December 2020), para 9(b) (stating that a State cyber activity is coercive if ‘there is an intention to deprive the target state of control over matters falling within the scope of its inherently sovereign functions’); see also Tallinn Manual 2.0, commentary to rule 66, para 19 (‘A few Experts took the position that to be coercive it is enough that an act has the effect of depriving the State of control over the matter in question.’).
  69. Harriet Moynihan, ‘The Vital Role of International Law in the Framework for Responsible State Behaviour in Cyberspace’ (2020) 5 Journal of Cyber Policy __, ___ [11 in pre-print].
  70. Tallinn Manual 2.0, commentary to rule 66, para 21.
  71. Tallinn Manual 2.0, commentary to rule 66, paras 19 and 27.
  72. Tallinn Manual 2.0, commentary to rule 66, para 24 (the exact nature of the causal nexus was not agreed on).
  73. Cf. Maurer and Schmitt, ‘Protecting Financial Data in Cyberspace: Precedent for Further Progress on Cyber Norms?’ (2017) (“In the context of financial data, an operation targeting the integrity of financial data upon which the State pension or welfare system relied in order to compel the target State to adopt a particular domestic policy would exemplify prohibited cyber intervention.”).
  74. Cf. Tallinn Manual 2.0, commentary to rule 66, para. 21 (“The key is that the coercive act must have the potential for compelling the target State to engage in an action that it would otherwise not take (or refrain from taking an action it would otherwise take).”).
  75. Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4, 22.
  76. UN GA Res 55/63 (4 December 2000), Doc A/RES/55/63, para 1(a).
  77. Cf. UN GGE 2015 report, paras 13(c) and 28(e) (using non-mandatory language to express the due diligence principle in the cyber context: “States should not knowingly allow their territory to be used for internationally wrongful acts using [cyber means]” and “States ... should seek to ensure that their territory is not used by non-State actors to commit such acts”, respectively) (emphases added).
  78. See Luke Chircop, ‘A Due Diligence Standard of Attribution in Cyberspace’ (2018) 67 ICLQ 643.
  79. See also Tallinn Manual 2.0, commentary to rule 6, para 4 (unanimously endorsing this view).
  80. Australia, ‘Australia’s International Cyber Engagement Strategy - Annex A: Australia’s Position on How International Law Applies to State Conduct in Cyberspace’ (October 2017) 91, stating that “if a state is aware of an internationally wrongful act originating from or routed through its territory, and it has the ability to put an end to the harmful activity, that state should take reasonable steps to do so consistent with international law”.
  81. Czech Republic, Comments submitted by the Czech Republic in reaction to the initial “pre-draft” report of the Open-Ended Working Group on developments in the field of information and telecommunications in the context of international security (undated), stating that “ICT-specific norms reflect a general principle of international law obliging States to ensure that territory and objects over which they enjoy sovereignty are not used to harm other States’ rights.”
  82. Estonia, ‘President of the Republic at the opening of CyCon 2019’ (29 May 2019), stating that “states have to make reasonable efforts to ensure that their territory is not used to adversely affect the rights of other states.”
  83. Finland, ‘Statement by Ambassador Janne Taalas at the second session of the open-ended Working Group (OEWG) on developments in the field of information and telecommunications in the context of international security’ (11 February 2020), stating that “States have an obligation not to knowingly allow their territory to be used for activities that cause serious harm to other States, whether using ICTs or otherwise.”
  84. French Ministry of the Armies, ‘International Law Applied to Operations in Cyberspace’ (9 September 2019) 6, stating that “In compliance with the due diligence requirement, [France] ensures that its territory is not used for internationally wrongful acts using ICTs. This is a customary obligation for States, which must (i) use cyberspace in compliance with international law, and in particular not use proxies to commit acts which, using ICTs, infringe the rights of other States, and (ii) ensure that their territory is not used for such purposes, including by non-state actors.”
  85. Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019), stating that ‘The Netherlands ... does regard the principle [of due diligence] as an obligation in its own right, the violation of which may constitute an internationally wrongful act.’
  86. Tallinn Manual 2.0, commentary to rule 6, para 5.
  87. Cf. Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgement) [2007] ICJ Rep 43, para 430; see further James Crawford, State Responsibility: The General Part (CUP 2013) 226–32 (on the distinction between due diligence and obligations of prevention); Rudiger Wolfrum, ‘Obligation of Result Versus Obligation of Conduct: Some Thoughts About the Implementation of International Obligations’ in Mahnoush H Arsanjani et al, Looking to the Future: Essays on International Law in Honor of Michael Reisman (Brill 2010).
  88. Corfu Channel judgment, para 22; Tallinn Manual 2.0, commentary to rule 6, para 2 and 15.
  89. Tallinn Manual 2.0, rule 6.
  90. Tallinn Manual 2.0, commentary to rule 6, para 18-24.
  91. Tallinn Manual 2.0, rule 6.
  92. Tallinn Manual 2.0, commentary to rule 6, para 37-42.
  93. Tallinn Manual 2.0, commentary to rule 6, para 43; commentary to rule 7, para 2 and 18.
  94. Tallinn Manual 2.0, commentary to rule 6, para. 40.
  95. Cf. J Kulesza, Due Diligence in International Law (Brill Nijhoff 2016) 53.
  96. Island of Palmas (Neth. v. U.S.), 2 RIAA 829, 838 (Perm. Ct. Arb. 1928).
  97. UNGA Res 71/237 (30 December 2015) UN Doc A/RES/20/237.
  98. 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.
  99. 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.
  100. 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).
  101. 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’).
  102. 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’.
  103. 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.’
  104. 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.’
  105. 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’.
  106. 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’.
  107. 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.’).
  108. 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’.
  109. 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’).
  110. 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.
  111. 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’.
  112. Cf. James Crawford, Brownlie's Principles of Public International Law (OUP 2012) 448.
  113. 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.')
  114. 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.
  115. Tallinn Manual 2.0, commentary to rule 4, para 5 and 12.
  116. Tallinn Manual 2.0, commentary to rule 4, para 11.
  117. Tallinn Manual 2.0, commentary to rule 4, para 12.
  118. Tallinn Manual 2.0, commentary to rule 4, para 13.
  119. Tallinn Manual 2.0, commentary to rule 4, para 14.
  120. Tallinn Manual 2.0, commentary to rule 4, para 18.
  121. Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), p. 4.
  122. Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019), p. 3.
  123. French Ministry of the Armies, International Law Applied to Operations in Cyberspace, p. 6.
  124. 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.
  125. Australian Government, Australia's position on how international law applies to State conduct in cyberspace
  126. 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.
  127. Richard Kadlčák, Statement of the Special Envoy for Cyberspace and Director of Cybersecurity Department of the Czech Republic, 11 February 2020, 3
  128. President of Estonia: international law applies also in cyber space, 29 May 2019
  129. 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.
  130. International law and cyberspace - Finland's national position
  131. Ministry of Defense of France, International Law Applied to Operations in Cyberspace, 9 September 2019, 6.
  132. Ministry of Defense of France, International Law Applied to Operations in Cyberspace, 9 September 2019, 7.
  133. Ministry of Defense of France, International Law Applied to Operations in Cyberspace, 9 September 2019, 7.
  134. Federal Government of Germany, On the Application of International Law in Cyberspace, March 2021, 2-3.
  135. Federal Government of Germany, On the Application of International Law in Cyberspace, March 2021, 3-4.
  136. Declaration of General Staff of the Armed Forces of the Islamic Republic of Iran Regarding International Law Applicable to the Cyberspace, August 2020
  137. Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations, 8 December 2020.
  138. Italian position paper on "International law and cyberspace", Italian Ministry for Foreign Affairs and International Cooperation.,4.
  139. "Ministry of Foreign Affairs of Japan, Basic Position of the Government of Japan on International Law Applicable to Cyber Operations, 16 June 2021, 2
  140. 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
  141. Ministry of Foreign Affairs of Japan, Basic Position of the Government of Japan on International Law Applicable to Cyber Operations, 16 June 2021, 3
  142. 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.
  143. Government of the Kingdom of the Netherlands, Appendix: International law in cyberspace, 26 September 2019 , 1-3.
  144. The Application of International Law to State Activity in Cyberspace, 1 December 2020, 2-3.
  145. 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.
  146. 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.
  147. 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.
  148. Federal Department of Foreign Affairs, Switzerland's position paper on the application of international law in cyberspace, May 2021, 2-3
  149. Attorney General Jeremy Wright:Cyber and International Law in the 21st Century, 23 May 2018
  150. United Kingdom Foreign, Commonwealth & Development Office, Application of international law to states’ conduct in cyberspace: UK statement, 3 June 2021
  151. Harold Hongju Koh, International Law in Cyberspace, 18 September 2012, 6
  152. Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016 11-13.
  153. Hon. Paul C. Ney, Jr., DOD General Counsel Remarks at U.S. Cyber Command Legal Conference, 2 March, 2020
  154. 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.
  155. 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 State A decides to remotely access several computers in State B’s territory in search of evidence (incident 3), it is exercising its enforcement jurisdiction in State B’s territory. Absent State B’s consent or other justification, State A’s action is in violation of State B’s sovereignty (option 5 - usurpation of inherently governmental functions).[1]

State A might try to justify its actions by invoking countermeasures.

Countermeasures by State A

Countermeasures
Countermeasures are “measures that would otherwise be contrary to the international obligations of an injured State vis-à-vis the responsible State, if they were not taken by the former in response to an internationally wrongful act by the latter in order to procure cessation and reparation”.[2] Several States, including Austria,[3] Estonia,[4] France,[5] Germany,[6] Japan,[7] the Netherlands,[8] the United Kingdom,[9] and the United States,[10] have expressly confirmed the applicability of the law of countermeasures to cyber operations. Others, including Brazil,[11] China,[12] and Cuba,[13] have expressed caution in this regard. Countermeasures should be distinguished from retorsions, which are unfriendly but lawful acts by the aggrieved party against the wrongdoer.

As a matter of general international law, an injured State may only take countermeasures against the responsible State if the following conditions are met:

  1. The existence of a prior internationally wrongful act of the responsible State against the injured State;[14]
  2. The internationally wrongful act has not ceased and “the dispute is [not] pending before a court or tribunal which has the authority to make decisions binding on the parties”, unless the “responsible State fails to implement the dispute settlement procedures in good faith”;[15]
  3. The injured State has called upon[16] the responsible State to fulfil its obligations arising from its internationally wrongful act;[17] and
  4. The injured State has notified the responsible State of its decision to take countermeasures, and offered to negotiate with that State, unless it is taking “urgent countermeasures as are necessary to preserve its rights.”[18]

Additionally, the countermeasures must fulfil the following requirements:

  1. Their aim must be to induce the responsible State to comply with the legal consequences of its internationally wrongful act;[19] in other words, the aim of countermeasures is restoration, not retribution; and the countermeasures can only target the responsible State;
  2. They “shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question;”[20]
  3. They shall not affect “obligations under peremptory norms of general international law”[21], obligations under any dispute settlement procedure between the injured and responsible State, and obligations arising from the inviolability of diplomatic or consular agents, premises, archives and documents;[22] and
  4. They must be “commensurate with the injury suffered, taking into account the gravity” of the prior unlawful act and of the rights in question (i.e. the requirement of “proportionality”).[23]

Taken countermeasures must be suspended if the internationally wrongful act has ceased and if “the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties”, and they must be terminated as soon as the responsible State has complied with its (secondary) obligations.

There is a debate as to whether States that have not themselves been directly injured by an unlawful cyber operation may engage in countermeasures in support of the injured State (sometimes referred to as collective countermeasures).[24] In particular, one State has recently put forward the view that non-injured States “may apply countermeasures to support the state directly affected by the malicious cyber operation”.[25] This would apply where diplomatic action is insufficient, but no lawful recourse to use of force exists. This interpretation would allow States to offer active assistance to States, which may not possess sufficient cyber capabilities themselves to counter an ongoing unlawful cyber operation. This view has found some support in scholarship,[26] but was since rejected by at least one other State,[27] with other parts of scholarship reluctant to endorse it.[28] Therefore, it has to be regarded as a call for progressive development of international law, rather than a statement of the current state of international law.

Whether a particular measure fulfils these conditions is an objective question,[29] while the burden of proof that the relevant conditions have been fulfilled falls on the injured State.[30] The exact standard of proof required is unsettled in international law and it will depend on the relevant forum. However, relevant international jurisprudence tends to rely in this regard on the standard of “clear and convincing evidence”.[31] This standard translates in practice into a duty to “convince the arbiter in question that it is substantially more likely than not that the factual claims that have been made are true.”[32] Importantly, if a State does resort to countermeasures on the basis of an unfounded assessment that a breach has occurred, it may incur responsibility for its own wrongful conduct.[33]

Publicly available national positions that address this issue include: National position of Australia (2020) (2020), National position of Brazil (2021) (2021), 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 Israel (2020) (2020), National position of the Italian Republic (2021) (2021), National position of Japan (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 the Russian Federation (2021) (2021), National position of Singapore (2021) (2021), 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 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).

An interesting question arises at this point: is State A engaging in countermeasures against State B by exercising its enforcement jurisdiction in State B’s territory? (Let us suppose that it would be a violation of State A’s obligation to respect State B’s sovereignty, unless it is State A’s lawful countermeasure.[34])

We know that State B’s activities in incident 2 and attributed in incidents 4-5 may amount to a violation of State A’s sovereignty, and hence an internationally wrongful act by State B; accordingly, State A would be entitled to respond with countermeasures (supposing that the effects of State B’s activities were still ongoing – for instance, if some of the deleted data could not be restored). Also, let us suppose that State A did not have the obligation to call upon State B for cessation, non-repetition, and reparation, and that it did not have the obligation to notify State B of the impending countermeasure, because that would likely defeat its purpose. The envisaged countermeasure is likely commensurate with the injury suffered. As for the purpose of the countermeasure, it serves to induce State B to comply with its obligations, because it aims to establish a firm attribution of its internationally wrongful act.

However, State A does not have the information about the attribution yet. Is State A engaging in countermeasures, if State B’s internationally wrongful act has not been established?

Ex post facto, it seems that the countermeasures were lawful, because State B had committed an internationally wrongful act; ex ante, however, State A could not have known that. Intuitively, it may seem that State A paradoxically committed an internationally wrongful act in response to an internationally wrongful act of State B.

However, the standard for the taking of countermeasures is an objective one.[35] The law of State responsibility does not require a subjective element to establish the wrongfulness of an act, nor does it deal with factually impossible attempts of internationally wrongful acts.

According to the commentary to the Articles on State Responsibility, “[a] State which resorts to countermeasures based on its unilateral assessment of the situation does so at its own risk and may incur responsibility for its own wrongful conduct in the event of an incorrect assessment.”[35] Therefore, State A’s countermeasures were lawful: they were done in reaction to an objectively internationally wrongful act of State B.

Checklist

Appendixes

See also

Notes and references

  1. Tallinn Manual 2.0, commentary to rule 4, para. 18, and to rule 11, para. 7.
  2. ILC Articles on State Responsibility, Commentary, part 3 ch 2 at para 1.
  3. 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. A target State may also react through proportionate countermeasures.’ (emphasis added).
  4. Estonia, ‘President of the Republic at the opening of CyCon 2019’ (29 May 2019), stating that “states have the right to react to malicious cyber operations, including using diplomatic response but also countermeasures”
  5. French Ministry of the Armies, ‘International Law Applied to Operations in Cyberspace’ (9 September 2019) 6, stating that ‘In response to a cyberattack, France may consider diplomatic responses to certain incidents, countermeasures, or even coercive action by the armed forces if an attack constitutes armed aggression.’
  6. Germany, ‘Statement by Ambassador Dr Thomas Fitschen, Director for the United Nations, Cyber Foreign Policy and Counter-Terrorism, Federal Foreign Office of Germany’ (November 2018) 3, stating that ‘in case of a cyber operation that is in breach of an international legal obligation below the level of the use or threat of force prohibited by Art. 2 (IV) [of the UN Charter] States are also entitled to take countermeasures as allowed by international law.’
  7. 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), stating that ‘Japan recognizes that basic rules on State responsibility including those on countermeasures applies to cyberspace.’
  8. Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019) 7.
  9. United Kingdom, ‘Statement on Other Disarmament Measures and International Security to the 72nd UNGA First Committee’ (23 October 2017), stating that ‘We reaffirm that the law of state responsibility applies to cyber operations in peacetime, including the availability of the doctrine of countermeasures in response to internationally wrongful acts.’
  10. Brian J. Egan, ‘Remarks on International Law and Stability in Cyberspace’ (10 November 2016), stating that countermeasures are available ‘to address malicious cyber activity’ if that activity amounts to a prior internationally wrongful act attributable to another State.
  11. Brazil, ‘Open-ended Working Group on developments in the field of information and telecommunications in the context of international security: Second Substantive Session - New York, 11 February 2020: Statement by the Delegation of Brazil’ (11 February 2020), stating that ‘In the case of malicious acts in cyberspace, it is often difficult to attribute responsibility to a particular State or actor with unqualified certainty. A decision to resort to countermeasures in response to such acts carries a high risk of targeting innocent actors, and of triggering escalation.’
  12. China, ‘Statement by the Chinese Delegation at the Thematic Debate of the First Committee of the 72th UNGA’ (October 2017), stating that ‘Countries should discuss application of international law in the manner conducive to maintain peace, avoid introducing force, deterrence and countermeasures into cyberspace, so as to prevent arms race in cyberspace and reduce risks of confrontation and conflicts.’
  13. Cuba, ‘Declaration by Miguel Rodríguez, Representative of Cuba, at the Final Session of Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security’ (23 June 2017), registering ‘serious concern over the pretension of some, reflected in para 34 of the draft final report, to convert cyberspace into a theater of military operations and to legitimize, in that context, unilateral punitive force actions, including the application of sanctions and even military action by States claiming to be victims of illicit uses of ICTs.’ (emphasis added).
  14. ILC Articles on State Responsibility, Art 49 para 1; Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) 1997 ICJ Rep 7, para 83.
  15. ILC Articles on State Responsibility, Art 52 paras 3 - 4.
  16. ILC Articles on State Responsibility, Art 52 para 1 subpara a). According to the UK Attorney General, the UK does not feel legally obliged, when taking countermeasures in response to a covert cyber intrusion, to “give prior notification to the hostile state”. UK Attorney General, Jeremy Wright QC MP, ‘Cyber and International Law in the 21st Century’.
  17. ILC Articles on State Responsibility, Art 28-41; the list of consequences includes (i) continued duty of performance, (ii) cessation and non-repetition, (iii) reparation, and (iv) particular consequences of a serious breach of obligations under peremptory norms of general international law.
  18. ILC Articles on State Responsibility, Art 52 para 1 subpara b) – Art 52 para 2.
  19. ILC Articles on State Responsibility, Art 49(1); Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) 1997 ICJ Rep 7, para 87. The list of consequences in Art 28-41 includes (i) continued duty of performance, (ii) cessation and non-repetition, (iii) reparation, and (iv) particular consequences of a serious breach of obligations under peremptory norms of general international law.
  20. ILC Articles on State Responsibility, Art 49(3).
  21. Such as the obligation to refrain from the threat or use of force as embodied in the UN Charter, obligations for the protection of fundamental human rights, and obligations of a humanitarian character prohibiting reprisals. ILC Articles on State Responsibility, Art 50(1).
  22. ILC Articles on State Responsibility, Art 50(2).
  23. Articles on State Responsibility, Art 51; Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) 1997 ICJ Rep 7, para 85.
  24. ILC Articles on State Responsibility, Art 54.
  25. President of Estonia, Kersti Kaljulaid, ‘President of the Republic at the opening of CyCon 2019’ (29.05.2019).
  26. Michael N Schmitt, ‘Estonia Speaks Out on Key Rules for Cyberspace’ Just Security (10.06.2019), considering the Estonian interpretation to be “an advantageous development in the catalogue of response options that international law provides to deal with unlawful acts”.
  27. French Ministry of the Armies, International Law Applied to Operations in Cyberspace, p. 10, arguing that collective countermeasures are not authorised under international law.
  28. Jeff Kosseff, ‘Collective Countermeasures in Cyberspace,’ (2020) Notre Dame Journal of International & Comparative Law Vol. 10, Iss. 1, 34; François Delerue, Cyber Operations and International Law (CUP 2020), 457.
  29. ILC Articles on State Responsibility, Commentary in Part 3, Chapter 2 on Art 49, para 3.
  30. ILC Articles on State Responsibility, Commentary to Part One, Chapter 5, para 8 (noting that “[i]n a bilateral dispute over State responsibility, the onus of establishing responsibility lies in principle on the claimant State”).
  31. See, eg, Trail Smelter case (United States v Canada) (Award) 1941 3 RIAA 1905, 1965; see also Robin Geiss and Henning Lahmann, ‘Freedom and Security in Cyberspace: Shifting the Focus Away from Military Responses Towards Non-Forcible Countermeasures and Collective Threat-Prevention’ in Katharina Ziolkowski (ed), Peacetime Regime for State Activities in Cyberspace (NATO CCD COE 2013) 624 (noting that in cases where State responsibility is involved, the required threshold tends to shift towards ‘clear and convincing’”).
  32. James Green, ‘Fluctuating Evidentiary Standards for Self-Defence in the International Court of Justice’ (2009) 58 ICLQ 163, 167 (emphasis original).
  33. ILC Articles on State Responsibility, Commentary in Part 3, Chapter 2 on Art 49 para 3.
  34. Tallinn Manual 2.0, commentary to rule 4, para. 18, and to rule 11, para. 7.
  35. 35.0 35.1 Articles on State Responsibility, paragraph 3 of the commentary to Art. 49.

Bibliography and further reading

  • [TBC]

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