Scenario 07: Leak of State-developed hacking tools

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This scenario concerns the leak of State-developed hacking tools, the failure of a State to inform software companies of vulnerabilities in their products, and the repurposing of the hacking tools for criminal purposes. The legal analysis of this scenario examines the obligation of due diligence, the obligation to respect sovereignty, and the prohibition of intervention.

Scenario[edit | edit source]

Keywords[edit | edit source]

Malware, sovereignty, prohibition of intervention, due diligence

Facts[edit | edit source]

[F1] A website appears on the Internet, offering the sale of various hacking tools, including zero-day vulnerabilities, spyware, and ready-made exploits. The sellers allege that all of the tools on offer had been developed by State A’s intelligence services (incident 1). Independent security researchers confirm that the advertised tools indeed resemble a number of different tools previously used in cyber operations in which State A had been implicated. After initial hesitation, State A officials confirm the leak of the hacking tools caused by unknown attackers.

[F2] Website hosting the tools is immediately noticed by the authorities and the content is taken down. However, once exposed on the Internet, the tools are considered as leaked and almost certainly spreading further.

[F3] Software companies whose products are said to contain the vulnerabilities launch a formal protest with State A for not having informed them of the existence of those vulnerabilities, before and especially after the leak (incident 2).

[F4] The tools are later repurposed by State B’s military unit and used in a ransomware (or mock ransomware) campaign, causing substantial losses globally, including paradoxically in State A. In particular, the spread of the ransomware results in the encryption of data in several of State A’s governmental information systems (incident 3). The facts as stated above have been verified by independent security researchers.

Examples[edit | edit source]

Legal analysis[edit | edit source]

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

[L1] The legal analysis of the present scenario is divided into four parts: the first two parts discuss the potential responsibility of State A due to a breach of the obligation of due diligence and the following two parts deal with the potential responsibility of State B for a violation of sovereignty and prohibited intervention based on the ransomware campaign.

Attribution to State A[edit | edit source]

[L2] Internationally wrongful acts of States may consist of actions as well as of omissions.[1] However, whether there is an omission relevant for the purposes of attribution is intertwined with the existence of a concomitant international obligation and, therefore, with the identification of a subject by which this obligation is owed.[2] It is in this sense that the failure of State A to prevent the theft of its tools (incident 1) and to report the existence of specific vulnerabilities to software manufacturers (incident 2) must be assessed.

[L3] Attribution of incident 3 to State A is not realistic. State A would only be responsible for the conduct of State B’s military unit if the unit was placed at the disposal of State A and acting in the exercise of elements of the governmental authority of State A (see attribution).[3]

Breach of an international obligation by State A[edit | edit source]

Due diligence[edit | edit source]

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”.[4] 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”.[5]

It is the matter of some controversy whether the principle of due diligence reflects a binding obligation applicable to cyber operations.[6] Some States have framed it within their national positions as one of the "voluntary, non-binding norms of responsible State behaviour"[7] in cyberspace, including Israel,[8] New Zealand,[9] the United Kingdom[10] and Canada.[11]

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.[12] 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.[13] This view has also been endorsed by a growing number of States, including Australia,[14] Czech Republic,[15] Estonia,[16] Finland,[17] France,[18] Germany,[19] Italy,[20] Japan,[21] the Netherlands,[22] Norway,[23] Switzerland,[24] and Sweden.[25]

Due diligence does not entail a duty of prevention,[26] but rather an obligation of conduct.[27] 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[28]) contrary to the rights of a victim State,[29]
  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),[30]
  3. which would have been unlawful if conducted by the potentially responsible State,[31]
  4. which have serious adverse consequences for the victim State,[32]
  5. with respect to which the potentially responsible State has actual or constructive knowledge,[33] and
  6. upon which the potentially responsible State can act, but fails to take all feasible measures.[34]

Publicly available national positions that address this issue include: National position of Australia (2020) (2020), National position of Canada (2022) (2022), 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 the Republic of Poland (2022) (2022), National position of Romania (2021) (2021), National position of Singapore (2021) (2021), National position of the Kingdom of Sweden (2022) (2022), National position of Switzerland (2021) (2021), National position of the United Kingdom (2021) (2021), National position of the United States of America (2021) (2021).

[L4] In the present scenario, all the required elements would likely not be met. First, the leak of the hacking tools and failure to inform the software manufacturers from State A (incidents 1-2) could be contrary to the rights of third States, because it makes their cyber infrastructure more vulnerable to malicious activities. However, the leak is a fairly remote cause of the malicious activities, because an intervening act of a malicious actor is required; it is, therefore, questionable whether the consequence can still be attributed to State A (condition 1).

[L5] The leak utilised the computer systems (cyber infrastructure) of State A. However, it is questionable if the leak itself is the harmful activity: rather, the abuse of the hacking tools is. Nevertheless, even if cyber infrastructure is interpreted broadly to include software[35] such as some of the hacking tools originally developed by State A, these tools were nonetheless no longer under the sole control of State A when they were repurposed and used to cause harm to third parties (condition 2).

[L6] If State A had purposefully sold or transferred their hacking tools to a third party, be it a State or a non-State actor, it would be responsible for further operations utilizing the hacking tools only if these were attributable to State A – for instance, if State A also exercised direction and control over the non-State actor - and those operations amounted to a breach of an international legal obligation (condition 3).

[L7] The leak led to substantial losses, which might qualify as “serious adverse consequences” if they cause, for instance, serious disruptions of societal functions, but again, the leak is causally remote from these consequences (condition 4).

[L8] State A knew about the leak. The scenario does not say since when exactly, but it is assumed that State A knew at the latest when the origin of the hacking tools was confirmed by independent researchers (condition 5).

[L9] State A did not inform the software manufacturers, which could have mitigated the consequences. This was an omission on its part to take all feasible measures in response to acts harmful to third parties (condition 6).

[L10] In sum, it would be difficult to determine a breach of the due diligence obligation by State A. The major stumbling blocks are the absence of an unqualified international obligation not to transfer State hacking tools to third parties (condition 3), remoteness of the causality (conditions 1 and 4), and the uncertainty about the seriousness of the adverse consequences (condition 4).

Attribution to State B[edit | edit source]

[L11] Incidents 1-2 are not attributable to State B – there is no indication of State B’s involvement in the leak of vulnerabilities. Incident 3 (the ransomware campaign) is attributable to State B, because the operation was conducted by one of its military units, which qualifies as an organ of the State.[36]

Breach of an international obligation by State B[edit | edit source]

State B’s obligation not to violate the sovereignty of State A[edit | edit source]

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.[37]
Multiple declarations by the UN,[38] NATO,[39] OSCE,[40] the European Union,[41] and individual States have confirmed that international law applies in cyberspace. Accordingly, so too does the principle of sovereignty.[42] 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.[43] It has also been adopted by several States including Austria,[44] Brazil, [45] Canada,[46] the Czech Republic,[47] Estonia,[48] Finland,[49] France,[50] Germany,[51] Iran,[52] Italy,[53] Japan,[54] the Netherlands,[55] New Zealand,[56] Norway,[57] Romania[58] and Sweden.[59]
  • 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.[60] This view has been adopted by one State, the United Kingdom,[61] and has been partially endorsed by the U.S. Department of Defense General Counsel.[62] 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 or use of force).

It is understood that sovereignty has both an internal and an external component.[63] 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.”[64][65] This encompasses both private and public infrastructure.[66] The external component entails that States are “free to conduct cyber activities in [their] international relations”, subject to their international law obligations.[67]

As a general rule, each State must respect the sovereignty of other States.[68]However, within the cyber realm – and particularly regarding remote cyber operations – there is still no agreement on the criteria[69] and the required threshold[70] to qualify an operation as a sovereignty violation.[71] 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.[72] Accordingly, the assessment needs to be done on a case-by-case basis.[73]

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.[74] 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.[75]
  2. Causation of physical damage or injury by remote means;[76] again, “a few” Experts took the position that this is a relevant but not a determinative factor by itself.[77]
  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 the operating system or other software was proposed but not universally accepted);[78] 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.[79]
  4. Interference with data or services that are necessary for the exercise of "inherently governmental functions";[80] although the Experts could not conclusively define the term "inherently governmental functions", they agreed that, for example, the conduct of elections would so qualify.[81]
  5. Usurpation of "inherently governmental functions", such as exercise of law enforcement functions in another State’s territory without justification.[82]

The Tallinn Manual’s view of what constitutes a violation of sovereignty has been expressly endorsed by several States including Canada,[83] Germany[84] and the Netherlands;[85] and followed to some extent by other States, such as the Czech Republic,[86] Norway,[87] Sweden[88] and Switzerland.[89] 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”;[90]similarly, Iran has argued that “unlawful intrusion to the (public or private) cyber structures” abroad may qualify as a breach of sovereignty.[91]

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.[92]

Publicly available national positions that address this issue include: National position of Australia (2020) (2020), National position of Brazil (2021) (2021), National position of Canada (2022) (2022), National position of the People's Republic of China (2021) (2021), National position of the Czech Republic (2020) (2020), National position of Estonia (2019) (2019), National position of Estonia (2021) (2021), National position of Finland (2020) (2020), National position of France (2019) (2019), National position of Germany (2021) (2021), National position of Iran (2020) (2020), National position of Israel (2020) (2020), National position of the Italian Republic (2021) (2021), National position of Japan (2021) (2021), National position of Kenya (2021) (2021), National position of the Netherlands (2019) (2019), National position of New Zealand (2020) (2020), National position of Norway (2021) (2021), National position of Pakistan (2023) (2023), National position of the Republic of Poland (2022) (2022), National position of Romania (2021) (2021), National position of Singapore (2021) (2021), National position of the Kingdom of Sweden (2022) (2022), National position of Switzerland (2021) (2021), National position of the United Kingdom (2018) (2018), National position of the United Kingdom (2021) (2021), National position of the United Kingdom (2022) (2022), National position of the United States of America (2012) (2012), National position of the United States of America (2016) (2016), National position of the United States of America (2020) (2020), National position of the United States of America (2021) (2021).

[L12] In the present scenario, State B’s ransomware campaign was not conducted from State A’s territory (option 1) nor did it result in physical damage or injury (option 2), despite having caused significant economic losses. However, the cyber operation did cause a loss of functionality of many computer systems, including in State A, which is relevant for option 3.[93] Additionally, it is possible that the cyber operation interfered with State A’s inherently governmental functions (option 4), although the information about State A’s public information systems is not detailed enough to conclude what their function was. In sum, there is some evidence, albeit not conclusive on the facts provided, which suggests that State B may have breached its obligation not to violate the sovereignty of State A.

Prohibited intervention by State B[edit | edit source]

Prohibition of intervention
The obligation of non-intervention, a norm of customary international law,[94] 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 Nicaragua v United States case:
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.[95]
In order for an act, including a cyber operation,[96] to qualify as a prohibited intervention, it must fulfil the following conditions:[97]
  1. The act must bear on those matters in which States may decide freely.[98] 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”[95] or the conduct of national elections[99]), and external affairs (“formulation of foreign policy”;[95] or “recognition of states and membership of international organisations”[100])—the so-called domaine réservé of States.[101] 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:[102]
    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.[103] 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)”.[104]
    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.[105] 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.[106]
    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.[107] The element of coercion also entails the requirement of intent.[108]

    While coercion is evident in the case of an intervention involving the use of force, ‘either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State’, as affirmed by the ICJ,[109] it is less clear with respect to non-forcible forms of interference.[110] Some States support the approach that intervention may take various forms, such as economic and political coercion.[111] One example that has been reiterated in several States’ positions, including Australia,[112] Brazil,[113] Canada,[114] Germany,[115] Israel,[116] New Zealand,[117] Norway,[118] Singapore,[119] the United Kingdom[120] and the United States,[121] is the case of cyber operations by a State interfering with another state’s ability to hold an election or manipulating the election results. Many States have affirmed that the assessment has to be done on a case-by-case basis.[122]

    Both potential and actual effects are considered to be relevant when assessing the coercion element.[123]

  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.[124]
  4. The prohibition of intervention applies between States, and thus it is not applicable to the activities of non-State groups, unless their conduct can be attributed to a State under the rules on attribution under international law.[125]

Publicly available national positions that address this issue include: National position of Australia (2020) (2020), National position of Brazil (2021) (2021), National position of Canada (2022) (2022) National position of Estonia (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 Pakistan (2023) (2023), National position of the Republic of Poland (2022) (2022), National position of Romania (2021) (2021), National position of Singapore (2021) (2021), National position of the Kingdom of Sweden (2022) (2022), National position of Switzerland (2021) (2021), National position of the United Kingdom (2018) (2018), National position of the United Kingdom (2021) (2021), National position of the United Kingdom (2022) (2022), National position of the United States of America (2016) (2016), National position of the United States of America (2020) (2020), National position of the United States of America (2021) (2021).

[L13] In the present scenario, there is nothing to suggest that State B's ransomware campaign (incident 3) was targeting State A’s sovereign right to decide its own internal or external affairs freely. The fact that the ransomware campaign is designed to coerce State A to transfer funds to State B in and of itself is not sufficient to meet the requirements for a prohibited intervention under international law. The element of coercion must be related to the form of interference that State B engages with a view to forcing a change to State A's policy or decision regarding its own internal affairs.

[L14] Compared to the economic losses caused by the incidents, the collected ransom was likely negligible. States in similar situations are not very likely to pay the ransom, which undermines the argument that the acts were coercive, rather than disruptive.[126]

[L15] In sum, it is difficult to label the operation as prohibited intervention.

Checklist[edit | edit source]

  • Due diligence:
    • In what circumstances would a State violate international law if it transferred the hacking tools to a non-State actor or another State on purpose?
    • Are State-developed hacking tools “cyber infrastructure” of that State, even if they are used outside its territory and without its control?
    • How proximate is the causal link between the stealing of the hacking tools and the consequences caused by their use?
    • Did the stealing and sale of the hacking tools result in serious adverse consequences for the victim State?
    • Did State A have actual or constructive knowledge that its territory was bring used for the stealing or sale of the hacking tools contrary to the rights of and resulting in serious adverse consequences for other States?
    • Did the potentially responsible State take all feasible measures to put an end to the malicious cyber activities?
  • Sovereignty:
    • Was the ransomware campaign conducted by a State organ of State B physically present on the territory of State A?
    • Did the ransomware campaign result in physical damage or injury on State A’s territory?
    • Did the ransomware campaign cause a loss of functionality of State A’s computer systems?
    • Did the ransomware campaign interfere with State A’s inherently governmental functions?
  • Prohibition of intervention:
    • Did the ransomware campaign bear on the internal or external affairs of State A?
    • Did the ransomware campaign coerce State A by depriving it of its freedom of choice concerning its internal or external affairs?

Appendixes[edit | edit source]

See also[edit | edit source]

Notes and references[edit | edit source]

  1. ILC Articles on State Responsibility, Art 2.
  2. Franck Latty, ‘Actions and Omissions’ in James Crawford et al (eds), The Law of International Responsibility (OUP 2010) 361.
  3. ILC Articles on State Responsibility, Art 6.
  4. Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4, 22.
  5. UN GA Res 55/63 (4 December 2000), Doc A/RES/55/63, para 1(a).
  6. 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); See also UN Group of Governmental Experts on Advancing Responsible State Behaviour in Cyberspace in the Context of International Security, A/76/135 (14 July 2021) paras 29-30.
  7. Dapo Akande, Antonio Coco and Talita de Souza Dias, ‘Old Habits Die Hard: Applying Existing International Law in Cyberspace and Beyond’, EJIL Talk! (5 January 2021)
  8. Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations (8 December 2020) 403-4. The position states that "we have not seen widespread State practice beyond this type of voluntary cooperation, and certainly not practice grounded in some overarching opinio juris, which would be indispensable for a customary rule of due diligence, or something similar to that, to form".
  9. New Zealand Foreign Affairs and Trade, ‘The Application of International Law to State Activity in Cyberspace’ (1 December 2020) 3. According to the position, "An agreed norm of responsible state behaviour provides that states should not knowingly allow their territory to be used for internationally wrongful acts using ICTs. Whether this norm also reflects a binding legal obligation is not settled".
  10. United Kingdom Foreign, Commonwealth & Development Office, ‘Application of international law to states’ conduct in cyberspace: UK statement’ (3 June 2021) para 12. According to the position: "the fact that States have referred to this as a non-binding norm indicates that there is not yet State practice sufficient to establish a specific customary international law rule of ‘due diligence’ applicable to activities in cyberspace".
  11. Government of Canada, International Law applicable in cyberspace (April 2022) para. 26. According to the position, this does not "precludes the recognition of a binding legal rule of due diligence under customary international law. Canada continues to study this matter".
  12. See Luke Chircop, ‘A Due Diligence Standard of Attribution in Cyberspace’ (2018) 67 ICLQ 643.
  13. See also Tallinn Manual 2.0, commentary to rule 6, para 4 (unanimously endorsing this view).
  14. 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”.
  15. 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.”
  16. 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.”
  17. 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.”
  18. 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.”
  19. Federal Government of Germany, ‘On the Application of International Law in Cyberspace’, Position Paper (March 2021) 3.
  20. Italian Ministry for Foreign Affairs and International Cooperation, ‘Italian position paper on International law and cyberspace’ (2021) 6-7.
  21. Ministry of Foreign Affairs of Japan, ‘Basic Position of the Government of Japan on International Law Applicable to Cyber Operations’ (28 May 2021) 5.
  22. 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.’
  23. Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States’ UNODA, A/76/136 (August 2021) 71-2.
  24. Federal Department of Foreign Affairs, ‘Switzerland's position paper on the application of international law in cyberspace’ (May 2021) 7.
  25. Government Offices of Sweden, ‘Position Paper on the Application of International Law in Cyberspace’ (July 2022) 4.
  26. Tallinn Manual 2.0, commentary to rule 6, para 5.
  27. 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).
  28. While, in general, it is States, not individuals or private entities, which are able to violate international law, cyber operations carried out by individuals or private entities that nevertheless result in serious adverse consequences fall within a State’s due diligence obligation. See Tallinn Manual 2.0, commentary to rule 6, para 21.
  29. Corfu Channel judgment, para 22; Tallinn Manual 2.0, commentary to rule 6, para 2 and 15.
  30. Tallinn Manual 2.0, rule 6.
  31. Tallinn Manual 2.0, commentary to rule 6, para 18-24.
  32. Tallinn Manual 2.0, rule 6.
  33. Tallinn Manual 2.0, commentary to rule 6, para 37-42.
  34. Tallinn Manual 2.0, commentary to rule 6, para 43; commentary to rule 7, para 2 and 18.
  35. Tallinn Manual 2.0, Glossary.
  36. ILC Articles on State Responsibility, Art 4(1); Tallinn Manual 2.0, commentary to rule 15, para 1; see also ICRC Customary IHL Study, vol 1, 530–531 (“The armed forces are considered to be a State organ, like any other entity of the executive, legislative or judicial branch of government.”).
  37. Island of Palmas (Neth. v. U.S.), 2 RIAA 829, 838 (Perm. Ct. Arb. 1928).
  38. UNGA Res 71/237 (30 December 2015) UN Doc A/RES/20/237.
  39. 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.
  40. 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.
  41. 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).
  42. See UNGA, Report of the Group of Governmental Experts on Developments in the Field of Information andTelecommunications in the Context of International Security, UN Doc A/68/98 (24 June 2013) para 20; UNGA, Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security, A/70/174 (22 July 2015) paras 27, 28(b); UNGA, Report of the Group of Governmental Experts on Advancing Responsible State Behaviour in Cyberspace in the Context of International Security, A/76/135 (14 July 2021) paras 70, 71(b).
  43. Michael N Schmitt, 'Virtual Disenfranchisement: Cyber Election Meddling in the Grey Zones of International Law' (2018) 19 ChiJIntlL 30,40; Tallinn Manual 2.0, rule 4 (‘A State must not conduct cyber operations that violate the sovereignty of another State’), and commentary to rule 4, para 2 (‘States shoulder an obligation to respect the sovereignty of other States as a matter of international law’).
  44. 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’.
  45. Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 18.
  46. Government of Canada, International Law applicable in cyberspace (April 2022) para 13.
  47. 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.’
  48. 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) 25.
  49. 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.’
  50. 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’.
  51. 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’.
  52. 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.’).
  53. Italian Ministry for Foreign Affairs and International Cooperation, ‘Italian position paper on “International law and cyberspace”’ (2021) 4.
  54. Ministry of Foreign Affairs of Japan, ‘Basic Position of the Government of Japan on International Law Applicable to Cyber Operations’ (16 June 2021) 3.
  55. 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’.
  56. New Zealand Foreign Affairs and Trade, ‘The Application of International Law to State Activity in Cyberspace’ (1 December 2020) 2.
  57. 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.
  58. 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.
  59. Government Offices of Sweden, ‘Position Paper on the Application of International Law in Cyberspace’ (July 2022) 2.
  60. 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’).
  61. 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’). The approach has been maintained in UK’s 2021 and 2022 national positions.
  62. 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’.
  63. Cf. James Crawford, Brownlie's Principles of Public International Law (OUP 2012) 448.
  64. Tallinn Manual 2.0, rule 2.
  65. 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'). This has been endorsed by several States, including China, the Czech Republic, Estonia, Finland, France, Germany, Israel, Italy, the Netherlands, Norway, Sweden, Switzerland and the United States.
  66. Tallinn Manual 2.0., commentary to rule 4, para 5. See also the national positions of Norway, Sweden and Switzerland.
  67. Tallinn Manual 2.0., rule 3; see also the national positions of the Czech Republic, the Netherlands and Norway.
  68. 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.
  69. Some States have referred to the nature of the operation, its consequences, and/or the scale or severity of the effects, as the relevant factors that should be assessed. See e.g. the national positions of Canada, Finland, Germany, New Zealand, Norway, Sweden and Switzerland. New Zealand also highlighted the nature of the target in this regard.
  70. Some States have highlighted the requirement of certain level beyond “negligible” or “de minimis” effects, such as Canada and Germany. See similarly, New Zealand’s national position. For further discussion on the required threshold, see Michael N Schmitt and Liis Vihul, ‘Respect for Sovereignty in Cyberspace’ (2017) 95 Texas Law Review 1639; Harriet Moynihan, ‘The Application of International Law to State Cyberattacks. Sovereignty and Non-Intervention’, Chatham House (2 December 2019) paras 60 and ff.
  71. Michael Schmitt, ‘Sovereignty, Intervention, and Autonomous Cyber Capabilities’ (2020) 96 International Law Studies 549.
  72. Tallinn Manual 2.0, commentary to rule 4, para 5 and 12.
  73. See e.g. the national position of Canada, Finland, New Zealand, Norway, Sweden and Switzerland.
  74. 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.
  75. Tallinn Manual 2.0, commentary to rule 4, para 7; commentary to rule 32, para 9. See also, the national positions of Canada and New Zealand.
  76. Tallinn Manual 2.0, commentary to rule 4, para 11.
  77. Tallinn Manual 2.0, commentary to rule 4, para 12.
  78. Tallinn Manual 2.0, commentary to rule 4, para 13. Additionally, there was agreement between the experts that ‘a cyber operation necessitating repair or replacement of physical components of cyber infrastructure amounts to a violation because such consequences are akin to physical damage or injury’. See also in this respect Canada’s national position.
  79. Tallinn Manual 2.0, commentary to rule 4, para 14.
  80. Tallinn Manual 2.0, commentary to rule 4, para 15.
  81. Tallinn Manual 2.0, commentary to rule 4, para 16. Other examples may include law enforcement, taxation, foreign relations and national defense. See e.g. the national positions of Canada, Germany and Norway. See also Michael Schmitt, ‘Sovereignty, Intervention, and Autonomous Cyber Capabilities’ (2020) 96 International Law Studies 549, 557.
  82. Tallinn Manual 2.0, commentary to rule 4, para 18.
  83. Government of Canada, International Law applicable in cyberspace (April 2022) para 13.
  84. Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), p. 4.
  85. Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019), p. 3.
  86. Richard Kadlčák, Statement of the Special Envoy for Cyberspace and Director of Cybersecurity Department of the Czech Republic (11 February 2020) 3.
  87. 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) 68.
  88. Government Offices of Sweden, Position Paper on the Application of International Law in Cyberspace (July 2022) 2
  89. Federal Department of Foreign Affairs, ‘Switzerland's position paper on the application of international law in cyberspace’ (May 2021) 3.
  90. Ministry of Defense of France, 'International Law Applied to Operations in Cyberspace' (9 September 2019) 6.
  91. Declaration of General Staff of the Armed Forces of the Islamic Republic of Iran Regarding International Law Applicable to the Cyberspace (August 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’).
  92. In favour: see, e.g., 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; Romania’s national position (‘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’).
  93. 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’ could qualify as a violation of the victim State’s sovereignty).
  94. The customary nature has been highlighted by several States, including Australia, Brazil, Germany, Iran, Norway, Sweden, the United Kingdom and the United States.
  95. 95.0 95.1 95.2 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14 [205].
  96. Many States, including Australia, Brazil, Canada, Estonia, Israel, Italy, Japan, New Zealand, Norway, Singapore, Sweden, Switzerland, the United Kingdom and the United States, have acknowledged that the prohibition of intervention applies to cyber operations. This has been also highlighted by the UN Group of Governmental Experts. See UNGA, Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (22 July 2015) A/70/174, para 28(b); UNGA, Report of the Group of Governmental Experts on Advancing Responsible State Behaviour in Cyberspace in the Context of International Security (14 July 2021) A/76/135, para 71(c).
  97. Many States agree that intervention ‘involves “coercion” in relation to a State’s domaine réservé’. See Ori Pomson, 'The Prohibition on Intervention Under International Law and Cyber Operations' (2022) 99 International Law Studies 180, 217. In this regard, see the national positions of Australia, Brazil, Canada, Estonia, Germany, Israel, Italy, The Netherlands, New Zealand, Norway, Romania, Singapore, Sweden, Switzerland, the United Kingdom and the United States.
  98. Militarv and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Merits, Judgment. I.C.J. Reports 1986, 14 [241].
  99. 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.
  100. 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.
  101. 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”); Nationality Decrees Issued in Tunis and Morocco (French Zone) on November 8th, 1921 (Great Britain v France) Advisory Opinion, (1923) PCIJ Series B no 4, 7th February 1923 [24].
  102. See also Harriet Moynihan, ‘The Vital Role of International Law in the Framework for Responsible State Behaviour in Cyberspace’ (2020) 6(3) Journal of Cyber Policy 394, 400-1.
  103. See, e.g., 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 further, the national positions of Italy, Switzerland, Estonia, Norway and Romania; 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.’).
  104. 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.
  105. See, e.g., 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’); United Kingdom Attorney General’s Office Suella Braverman: ‘International Law in Future Frontiers’ (19 May 2022). 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.’).
  106. Harriet Moynihan, ‘The Vital Role of International Law in the Framework for Responsible State Behaviour in Cyberspace’ (2020) 6(3) Journal of Cyber Policy 394, 403; see also Sean Watts, ‘Low-Intensity Cyber Operations and the Principle of Non-Intervention’ in Jens D Ohlin, Kevin Govern and Claire Finkelstein, Cyber War: Law and Ethics for Virtual Conflicts (Oxford University Press 2015) 256 and ff.
  107. Tallinn Manual 2.0, commentary to rule 66, para 21. See also the national positions of Canada, Germany and Norway.
  108. Tallinn Manual 2.0, commentary to rule 66, paras 19 and 27. See also the national positions of Germany, New Zealand and Sweden.
  109. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Merits, Judgment. I.C.J. Reports 1986, 14 [205]. See also national position of Canada, Germany and The Netherlands.
  110. See Harriet Moynihan, The Application of International Law to State Cyberattacks Sovereignty and Non-Intervention (Chatham House, 2 December 2019) para 82.
  111. See Ori Pomson, 'The Prohibition on Intervention Under International Law and Cyber Operations' (2022) 99 International Law Studies 180, 212. While some States have stressed that economic coercion can still be sufficient for a breach of the rule of non-intervention, others remained ambiguous in their positions. States have referred to different examples that could be classified, depending on the circumstances of the case, under the prohibition of intervention. See the national positions of Australia (‘intervention in the fundamental operation of Parliament, or in the stability of States’ financial systems’), Canada (‘a malicious cyber activity that disrupts the functioning of a major gas pipeline, compelling the affected State to change its position in bilateral negotiations surrounding an international energy accord’), Italy (‘influence activities aimed, for instance, at undermining a State’s ability to safeguard public health during a pandemic’), New Zealand (‘a prolonged and coordinated cyber disinformation operation that significantly undermines a state’s public health efforts during a pandemic; and cyber activity deliberately causing significant damage to, or loss of functionality in, a state’s critical infrastructure, including – for example – its healthcare system, financial system, or its electricity or telecommunications network’), Norway (‘a cyber operation deliberately causing a temporary shutdown of the target State’s critical infrastructure, such as the power supply or TV, radio, Internet or other telecommunications infrastructure in order to compel that State to take a course of action’), Singapore (‘cyber-attacks against our infrastructure in an attempt to coerce our government to take or forbear a certain course of action on a matter ordinarily within its sovereign prerogative’), Switzerland (‘This is particularly true of economic coercion, which could be the case if a company that is systemically relevant was paralysed through a cyber operation’), the United Kingdom (‘intervention in the fundamental operation of Parliament, or in the stability of our financial system’; ‘to undermine the stability of another State’s financial system or to target the essential medical services of another State’; ‘Covert cyber operations by a foreign State which coercively restrict or prevent the provision of essential medical services or essential energy supplies […]disruption of systems controlling emergency medical transport (e.g., telephone dispatchers); causing hospital computer systems to cease functioning; disruption of supply chains for essential medicines and vaccines; preventing the supply of power to housing, healthcare, education, civil administration and banking facilities and infrastructure; causing the energy supply chain to stop functioning at national level through damage or prevention of access to pipelines, interchanges, and depots; or *preventing the operation of power generation infrastructure. Turning to economic stability, covert cyber operations by a foreign State that coercively interfere with a State’s freedom to manage its domestic economy, or to ensure provision of domestic financial services crucial to the State’s financial system, would breach the rule on non-intervention […] disruption to the networks controlling a State’s fundamental ability to conduct monetary policy or to raise and distribute revenue, for instance through taxation. Or disruption to systems which support lending, saving and insurance across the economy’), and the United States (‘a cyber operation that attempts to interfere coercively with a State’s ability to protect the health of its population –for example, through vaccine research or running cyber-controlled ventilators within its territories during a pandemic’).
  112. Australian Government, Australia's position on how international law applies to State conduct in cyberspace (2020).
  113. Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136, (August 2021) 19.
  114. Government of Canada, International Law applicable in cyberspace (April 2022)
  115. Federal Government of Germany, ‘On the Application of International Law in Cyberspace’, Position Paper (March 2021) 5-6.
  116. Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations (8 December 2020).
  117. New Zealand Foreign Affairs and Trade, The Application of International Law to State Activity in Cyberspace (1 December 2020) 2.
  118. 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) 68-69.
  119. 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.
  120. Attorney General Jeremy Wright:Cyber and International Law in the 21st Century (23 May 2018); United Kingdom Foreign, Commonwealth & Development Office, Application of international law to states’ conduct in cyberspace: UK statement (3 June 2021); Attorney General Suella Braverman: International Law in Future Frontiers, 19 May 2022.
  121. Brian J Egan, International Law and Stability in Cyberspace (10 November 2016) 13-14; Hon Paul C Ney, Jr., DOD General Counsel Remarks at U.S. Cyber Command Legal Conference (2 March, 2020); 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.
  122. See the national positions of Canada, Romania, Sweden and Switzerland.
  123. Harriet Moynihan, The Application of International Law to State Cyberattacks Sovereignty and Non-Intervention (Chatham House, 2 December 2019) para 101. Further, the international group of experts involved in the Tallinn Manual 2.0. considered that ‘the fact that a coercive cyber operation fails to produce the desired outcome has no bearing on whether [the prohibition of intervention] has been breached’. Tallinn Manual 2.0., commentary to rule 66, para 29.
  124. Tallinn Manual 2.0, commentary to rule 66, para 24 (the exact nature of the causal nexus was not agreed on).
  125. Harriet Moynihan, The Application of International Law to State Cyberattacks Sovereignty and Non-Intervention (Chatham House, 2 December 2019) para 79. See also the national positions of The Netherlands (‘The non-intervention principle, like the sovereignty principle from which it stems, applies only between states’), Sweden (‘The prohibition of intervention is applicable between States and does not apply directly to non-state actors’), and the 2022 position of the United Kingdom (‘To be clear, State direction or control of non-State actors who undertake cyber operations of the kind I have described today would also represent unlawful conduct by that State, in line with international law on State responsibility’).
  126. For analyses of prohibited intervention in similar real-world incidents, see Michael Schmitt and Sean Fahey, ‘WannaCry and the International Law of Cyberspace’, JustSecurity, 22 December 2017; and Michael Schmitt and Jeffrey Biller, ‘The NotPetya Cyber Operation as a Case Study of International Law’, EJIL: Talk!, 11 July 2017.

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