Difference between revisions of "Scenario 08: Certificate authority hack"

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=== Bibliography and further reading ===
 
=== Bibliography and further reading ===
* James Crawford, ''Brownlie's Principles of Public International Law'' (OUP 2012)
+
* James Crawford, ''Brownlie's Principles of Public International Law'' (OUP 2012).
*Gary P. Corn and Robert Taylor, ‘[https://doi.org/10.1017/aju.2017.57 Sovereignty in the Age of Cyber]’ (2017) 111 AJIL Unbound 207
+
*Gary P. Corn and Robert Taylor, ‘[https://doi.org/10.1017/aju.2017.57 Sovereignty in the Age of Cyber]’ (2017) 111 AJIL Unbound 207.
*Wolff Heintschel von Heinegg, '[https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?referer=https://www.google.ee/&httpsredir=1&article=1027&context=ils Territorial Sovereignty and Neutrality in Cyberspace]' (2013) 89 Int’l L. Stud. 123
+
*Wolff Heintschel von Heinegg, '[https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?referer=https://www.google.ee/&httpsredir=1&article=1027&context=ils Territorial Sovereignty and Neutrality in Cyberspace]' (2013) 89 Int’l L. Stud. 123.
*Kubo Mačák, ‘[https://doi.org/10.1093/jcsl/krw014 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
+
*Kubo Mačák, ‘[https://doi.org/10.1093/jcsl/krw014 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.
*Marko Milanovic, ‘[http://www.harvardilj.org/wp-content/uploads/561Milanovic.pdf Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age]’ (2015) 56/1 HarvIntlLJ 81
+
*Marko Milanovic, ‘[http://www.harvardilj.org/wp-content/uploads/561Milanovic.pdf Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age]’ (2015) 56/1 HarvIntlLJ 81.
*Michael N Schmitt, '[https://heinonline.org/HOL/P?h=hein.journals/cjil19&i=36 Virtual Disenfranchisement: Cyber Election Meddling in the Grey Zones of International Law]' (2018) 19 ChiJIntlL 30
+
*Michael N Schmitt (ed), ''[https://doi.org/10.1017/9781316822524 Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations]'' (CUP 2017).
  +
*Michael N Schmitt, '[https://heinonline.org/HOL/P?h=hein.journals/cjil19&i=36 Virtual Disenfranchisement: Cyber Election Meddling in the Grey Zones of International Law]' (2018) 19 ChiJIntlL 30.
*Michael N Schmitt and Liis Vihul, ‘[https://texaslawreview.org/respect-sovereignty-cyberspace/ Respect for Sovereignty in Cyberspace]’ (2017) 95 Tex L Rev. 1639
 
*Sean Watts & Theodore Richard, '[https://law.lclark.edu/live/files/26902-lcb223article3wattspdf Baseline Territorial Sovereignty and Cyberspace]' (2018) 22 Lewis & Clark L. Rev. 771
+
*Michael N Schmitt and Liis Vihul, [https://texaslawreview.org/respect-sovereignty-cyberspace/ Respect for Sovereignty in Cyberspace] (2017) 95 Tex L Rev. 1639.
  +
*Sean Watts & Theodore Richard, '[https://law.lclark.edu/live/files/26902-lcb223article3wattspdf Baseline Territorial Sovereignty and Cyberspace]' (2018) 22 Lewis & Clark L. Rev. 771.
*Katja Ziegler, “[http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1398 Domaine Réservé]”, in Rudiger Wolfrum (ed), ''Max Planck Encyclopedia of Public International Law'' (OUP 2008) <br />
+
*Katja Ziegler, “[http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1398 Domaine Réservé]”, in Rudiger Wolfrum (ed), ''Max Planck Encyclopedia of Public International Law'' (OUP 2008). <br />
 
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* MN Schmitt (ed), ''Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations'' (CUP 2017)
 
* MN Schmitt (ed), ''Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations'' (CUP 2017)

Revision as of 15:54, 30 January 2019

Golden Bull of Sicily

The scenario analyses a cyber operation against a certificate authority that provides services to private and public entities, with indications that the operation was commissioned or exploited by a State. What are the relevant human rights obligations in cyberspace? What other international obligations may have been breached?

Scenario

Keywords

Attribution, sovereignty, prohibition of intervention, mass surveillance, international human rights law

Facts

A company based in State A provides certificate authority services, including for government departments and agencies of State A. It has now been hacked by intruders, who assume control of the company’s certificate-issuing servers and, for several weeks, proceed to issue fraudulent certificates for private sector services, such as email or VoIP based telephony, but also for services related to the company register in State A. Indicators of compromise (IoCs) point to the use of proxies (an unaffiliated group) in incident 1, but eventually lead to State B’s intelligence service, which had ordered and paid the group to issue some of the fraudulent certificates in incident 2, including to the company register in State A (incident 1).

The fraudulent certificates are later used in a massive man-in-the-middle attack to intercept free email communication of several hundreds of thousands of individuals in State A (incident 2). Available evidence shows that this mass surveillance operation was fully conducted by State B’s intelligence service.

Eventually, all of the certificates issued by the company are blacklisted by the major internet browsers, the attack is contained, and the company files for bankruptcy.

State A and State B are States parties to the International Covenant on Civil and Political Rights (ICCPR).[1]

Examples

Legal analysis

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

The legal analysis first briefly deals with the attribution of incidents 1 and 2 to State B, then continues with the breach of State B’s obligations to respect the sovereignty of other States, prohibition of intervention, and the obligations arising from international human rights law.

Attribution

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";[2]
  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";[3]
  3. "an insurrectional movement which becomes the new Government of a State";[4] 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".[5]

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".[6]

In the present scenario, it is crucial that State B ordered and paid the group to issue some of the fraudulent certificates in incident 1. The fact of accepting this order confirms the existence of a factually subordinate relationship at the relevant time, and thus the conduct of the non-State group is attributable to State B under the “instruction” standard of Article 8 of ILC’s Articles on State Responsibility.[7]

State organs

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";[8]
  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;[9]
  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."[10]

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).[11]

The intelligence service of State B is an organ of that State; therefore, its conduct is attributable to State B. In the present scenario, this covers the mass interception of emails in State A (incident 2).

Breach of an international obligation

Obligation to respect the sovereignty of other States

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.[12]

Multiple declarations by the UN,[13] NATO,[14] OSCE,[15] the European Union,[16] 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.[17] It has also been adopted by several States including Austria,[18] the Czech Republic,[19] Finland,[20] France,[21] Germany,[22] Iran,[23] and the Netherlands.[24]
  • 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.[25] This view has now been adopted by one State, the United Kingdom,[26] and has been endorsed by the U.S. Department of Defense General Counsel.[27] 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.[28] 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.”[29][30]

As a general rule, each State must respect the sovereignty of other States.[31] 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.[32]

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.[33] 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.[34]
  2. Causation of physical damage or injury by remote means;[35] again, “a few” Experts took the position that this is a relevant but not a determinative factor by itself.[36]
  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);[37] 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.[38]
  4. Interference with data or services that are necessary for the exercise of "inherently governmental functions";[39] although the Experts could not conclusively define the term "inherently governmental functions", they agreed that, for example, the conduct of elections would so qualify.[40]
  5. Usurpation of "inherently governmental functions", such as exercise of law enforcement functions in another State’s territory without justification.[41]

The Tallinn Manual’s view of what constitutes a violation of sovereignty has been expressly endorsed by several States including Germany[42] and the Netherlands.[43] 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”.[44]

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.[45]

There is no evidence that options 1 or 2 would be of relevance in this scenario.

With respect to option 3, the fact that the company’s certificates were blacklisted implies that the services using the certificates had to change to a different certificate authority. In the meantime, the trust in these services could not be guaranteed. Some websites using the blacklisted certificates would function, but browsers would issue security alerts, leading to economic losses for the respective businesses, as customers would be afraid to continue to their websites. Other services had lost functionality until they installed new certificates – especially online payment systems and mobile banking apps would stop working completely.

The precise threshold of the loss of functionality is difficult to determine. If the loss is only temporary, does not lead to significant disruptions, and can be easily fixed, then it would likely not qualify.[46] However, assuming that the threshold was reached, State B is responsible to the extent that it had ordered the non-State actor to issue some of the fraudulent certificates (incident 1).

As for option 4, some of the affected systems were providing secure access to State A’s company register. Running this register is State A’s inherently governmental function, and if the function could not be provided due to the interference by State B (incident 1), then State B’s conduct had amounted to a violation of State A’s sovereignty.

Option 5, the usurpation of inherently governmental functions by State B, poses an interesting problem: was State B exercising its law enforcement functions in State A’s territory by the interception of emails of several hundred thousands of people in State A’s territory (incident 2)? Interestingly, the answer seems to lie in the goal of State B: if its intelligence service was collecting evidence for criminal proceedings abroad without the consent of State A, then it was exercising law enforcement functions and hence violating State A’s sovereignty;[47] if it was merely engaging in cyber espionage for national security purposes, then according to this option, it was not usurping inherently governmental functions of State A.

On the basis of the foregoing, it can be summarized that in the context of incident 1, State B violated the sovereignty of State A insofar the actions of the non-state actor can be attributed to State B. As for incident 2, the answer depends on the actual goal of State B’s conduct.

Prohibition of intervention

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.[48]

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”[48] or the conduct of national elections[49]), and external affairs (“formulation of foreign policy”;[48] “recognition of states and membership of international organisations”[50])—the so-called domaine réservé of States.[51] 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:[52]
    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.[53] 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)”.[54]
    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.[55] 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.[56]
    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.[57] The element of coercion also entails the requirement of intent.[58]
  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.[59]

In incident 1, State B interfered with the internal affairs of State A by having a non-State actor issue fraudulent certificates, thereby undermining the security of online government services. However, proving the coercive nature of the act can be difficult. It depends on the ultimate goal of State B, and whether the act can be causally linked to the goal. If State B merely wanted to cause nuisance and economic loss to State A without any particular goal, the act does not qualify as prohibited intervention (even though it does qualify as a violation of sovereignty: see above).

In incident 2, the analysis again depends on the goal of State B. If State B wanted to engage in cyber espionage against the Internet users in State A’s territory, or even if it wanted to conduct law enforcement activities in State A’s territory, without any intent to influence State A’s decisions on its internal or external affairs, the prohibition of intervention would not have been breached.

Obligations arising from international human rights law

International human rights law
International human rights law applies in cyberspace; individuals enjoy the same human rights online as they enjoy offline.[60] States are therefore bound by their human rights obligations to both respect and ensure human rights in cyberspace. States also bear international responsibility for the violation of human rights obligations that are attributable to them.[61]

The source of these obligations is primarily treaty law. The two key global treaties are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR);[62] many of these treaties’ provisions, along with the provisions of the Universal Declaration of Human Rights, are regarded as reflective of customary international human rights law, even though there is no universally accepted codification. Apart from the ICCPR and ICESCR, there exist important regional human rights treaty systems, especially for Europe (European Convention on Human Rights – ECHR)[63], the European Union (Charter of Fundamental Rights of the European Union – EUCFR),[64] and America (American Convention on Human Rights – ACHR)[65], which provide for adjudicatory mechanisms by which individuals can assert their human rights against States and which have generated a considerable amount of case-law as a result.

In order to determine whether a State has breached its human rights obligations, the following steps of analysis should be conducted:

  1. Since cyber operations often take place in the cyber infrastructure of multiple States, the issue of jurisdiction must be addressed. Each human rights treaty has its own bespoke jurisdictional requirements and scope. In this regard, every State party to the ICCPR has undertaken “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the [ICCPR]”.[66] The UN Human Rights Committee has understood this provision to mean that the human rights obligations recognized within the ICCPR apply not only to persons physically located within a State’s territory, but also to situations where the State exercises “power or effective control” either over the territory on which an individual is located (the spatial model of jurisdiction) or over the individual (the personal model of jurisdiction).[67] The International Court of Justice (ICJ) has gone even further by stating that the ICCPR “is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory”.[68] A few States (such as the US and Israel) have adopted the contrary view and maintain that human rights obligations do not apply extraterritorially. To date, however, these States remain in the minority.[69] As such, although the exact criteria for the applicability of human rights obligations to extraterritorial activities of States are not settled and are subject to ongoing academic and political debate,[70] the prevailing opinion at present is that human rights obligations do apply to some acts of a State outside its territory.
  2. If an international human rights regime is applicable, the second question is whether a cyber operation attributable to a State constitutes an interference with a particular human right. The human rights that are often implicated by cyber operations include the right to privacy[71] and the right to freedom of opinion and expression.[72]
  3. Not every State interference with a human right is also a violation of international human rights law. For an interference to be legal, it must be justified, namely:
    1. in accordance with an accessible and foreseeable domestic law (“legality”),
    2. pursuing a legitimate objective of public interest (such as national security, public order, public health, or morals) or for the protection of rights of others,
    3. necessary to achieve that objective, and
    4. proportionate in balancing the means and the end.[73]

Apart from the responsibility for human rights violations attributed to it, a State can also be held responsible for its failure to take all reasonable measures to protect the human rights of individuals in its territory and subject to its jurisdiction (for instance, if it unlawfully allows non-State actors to violate human rights).[74]

(1) Does the obligation of State B to respect the right to privacy pursuant to Article 17 ICCPR apply to its cyber operations against individuals in State A? The owners and presumably also the content of the intercepted email accounts were located in State A. State B, whose State organ commissioned the preparation of the interception and then executed it itself, would be obligated to respect the human rights of those persons if they were under its jurisdiction or control.

According to one line of thought, if an organ of State B can, in the exercise of its jurisdiction, secretly interfere with the human rights of individuals anywhere in the world without the knowledge of the territorial State (in this case, State A), then it is logically State B which must make sure that this interference is conducted in accordance with the requirements of the ICCPR.[75]

The counterargument is that there is a lack of consensus whether interfering with cyber infrastructure abroad can amount to exerting effective control.[76] In the present state of the law, State B therefore cannot be held responsible for violating human rights of the individuals concerned.

(2) Assuming that the ICCPR applies, a surreptitious interception of emails between individuals is an interference with their right to privacy pursuant to Article 17 ICCPR (specifically, interference with their correspondence). Depending on the goal of State B, the interception might also implicate Article 19 ICCPR (right to freedom of expression).

(3) The scenario does not contain any information about State B’s domestic law. If there is a domestic law regulating extraterritorial surveillance or criminal investigation, which is compliant with the requirements of the international obligation (legality, legitimacy of the objective, necessity to achieve the goal, and proportionality), and the email interception is done in accordance with that law, then State B’s activity would be in accordance with the ICCPR.

With regard to the number of affected individuals (“several hundreds of thousands”), it should be noted that the Court of Justice of the European Union (CJEU) ruled any bulk online surveillance as incompatible with the EUCFR;[77] however, as of October 2018, the case-law of the ECtHR seems to be developing in a less strict direction.[78] Although these rulings do not directly apply to States not members of the relevant international organizations, they may nonetheless carry persuasive value for the further development of the law in this area.

To sum up the three steps of the test, it cannot be concluded that the interception of emails by itself amounts to a violation of international human rights law. Although such conduct would most certainly interfere with several human rights of the affected individuals, its compatibility with IHRL would fall to be determined by the justification proffered by the acting State.

Checklist

  • Attribution: Did State B provide instructions or exercise direction or control over the non-State actor?
  • Attribution: Is an intelligence agency a State organ of State B?
  • Sovereignty: Did State B’s operation cause a loss of functionality of another State’s cyber infrastructure?
  • Sovereignty: Did State B usurp State A’s inherently governmental functions by its cyber operation in State A’s territory?
  • Prohibited intervention: Did State B try to coerce State A by its cyber operation?
  • International human rights law: Does the ICCPR apply to State B’s cyber operation abroad?
  • International human rights law: Which human rights are implicated by State B’s cyber operation?
  • International human rights law: Is State B’s cyber operation justified from the perspective of international human rights law?

Appendixes

See also

Notes and references

  1. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).
  2. 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.
  3. ILC Articles on State Responsibility, Art 9.
  4. ILC Articles on State Responsibility, Art 10(1).
  5. ILC Articles on State Responsibility, Art 10(2).
  6. ILC Articles on State Responsibility, Art 11.
  7. See 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 JCSL 405, 415 (“the non-State entity must be factually subordinate to the State at the moment when the State decides to commit the acts in question”).
  8. ILC Articles on State Responsibility, Art 4(1).
  9. ILC Articles on State Responsibility, Art 6.
  10. ILC Articles on State Responsibility, Art 5.
  11. ILC Articles on State Responsibility, Art 7; Tallinn Manual 2.0, commentary to rule 15, paras. 6-7 and 12.
  12. Island of Palmas (Neth. v. U.S.), 2 RIAA 829, 838 (Perm. Ct. Arb. 1928).
  13. UNGA Res 71/237 (30 December 2015) UN Doc A/RES/20/237.
  14. 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.
  15. 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.
  16. 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).
  17. 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’).
  18. 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’.
  19. 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.’
  20. 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.’
  21. 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’.
  22. 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’.
  23. 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.’).
  24. 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’.
  25. 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’).
  26. 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.
  27. 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’.
  28. Cf. James Crawford, Brownlie's Principles of Public International Law (OUP 2012) 448.
  29. Tallinn Manual 2.0, rule 2.
  30. 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.')
  31. 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.
  32. Tallinn Manual 2.0, commentary to rule 4, para 5 and 12.
  33. 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.
  34. Tallinn Manual 2.0, commentary to rule 4, para 7; commentary to rule 32, para 9.
  35. Tallinn Manual 2.0, commentary to rule 4, para 11.
  36. Tallinn Manual 2.0, commentary to rule 4, para 12.
  37. Tallinn Manual 2.0, commentary to rule 4, para 13.
  38. Tallinn Manual 2.0, commentary to rule 4, para 14.
  39. Tallinn Manual 2.0, commentary to rule 4, para 15.
  40. Tallinn Manual 2.0, commentary to rule 4, para 16.
  41. Tallinn Manual 2.0, commentary to rule 4, para 18.
  42. Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), p. 4.
  43. Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019), p. 3.
  44. French Ministry of the Armies, International Law Applied to Operations in Cyberspace, p. 6.
  45. 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.
  46. Compare Tallinn Manual 2.0, commentary to rule 4, para 14, wherein some of the experts were willing to characterise as a violation of sovereignty “causing a temporary, but significant, loss of functionality, as in the case of a major DDoS operation”.
  47. Compare Tallinn Manual 2.0, commentary to rule 4, para 18: “if one State conducts a law enforcement operation against a botnet in order to obtain evidence for criminal prosecution by taking over its command and control servers located in another State without that State’s consent, the former has violated the latter’s sovereignty because the operation usurps an inherently governmental function exclusively reserved to the territorial State under international law.”
  48. 48.0 48.1 48.2 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14, para 205.
  49. 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.
  50. 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.
  51. 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”).
  52. 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].
  53. 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.’).
  54. 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.
  55. 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.’).
  56. 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].
  57. Tallinn Manual 2.0, commentary to rule 66, para 21.
  58. Tallinn Manual 2.0, commentary to rule 66, paras 19 and 27.
  59. Tallinn Manual 2.0, commentary to rule 66, para 24 (the exact nature of the causal nexus was not agreed on).
  60. See, for example, United Nations Human Rights Council, The promotion, protection and enjoyment of human rights on the Internet, Resolution A/HRC/RES/32/13 (1 July 2016), para 1; NATO, Warsaw Summit Communiqué (9 July 2016), para 70; G8 Summit of Deauville, Declaration: Renewed Commitment for Freedom and Democracy (27 May 2011), para II/11.
  61. See, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, para 170.
  62. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR); International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR).
  63. Formal title: Convention for the Protection of Human Rights and Fundamental Freedoms (opened to the signature in Rome on 4 November 1950, entered into force 3 September 1953), ETS 5 (ECHR); there are several protocols which significantly expand and amend the obligations of the original Convention.
  64. Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000 (EUCFR).
  65. American Convention on Human Rights (open for signature from 22 November 1969, entered into force 18 July 1978), 1144 UNTS 123 (ACHR).
  66. Article 2(1) ICCPR.
  67. UN HRC, ‘General Comment No. 31 (80): The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ (adopted on 29 March 2004, 2187th meeting), para 10.
  68. Cf, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ Rep 136, para 111.
  69. See, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ 136, para 110; UN HRC, Summary Record of the 1405th Meeting, CCPR/C/SR.1405 (31 March 1995) 6 [20].
  70. See, for example, Marko Milanovic, ‘Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age’ (2015) 56/1 HarvIntlLJ 81.
  71. Article 17 ICCPR; Article 8 ECHR; Article 7 EUCFR; Article 11 ACHR. The exact titles and scopes of the provisions vary.
  72. Article 19 ICCPR; Article 10 ECHR; Article 11 EUCFR; Article 13 ACHR. The exact titles and scopes of the provisions vary.
  73. UN Human Rights Committee, ICCPR General Comment No. 34 (12 September 2011), paras 21-36; See also ICCPR General Comment No. 27 (1 November 1999), paras 14-16.
  74. See, Velásquez Rodríguez v. Honduras, (Merits) IACrtHR (Ser. C) No. 4 (29 July 1988) [177].
  75. Marko Milanovic, ‘Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age’ (2015) 56/1 HarvIntlLJ , pages 118-119
  76. Tallinn Manual 2.0, commentary to rule 36, para 6.
  77. CJEU, the judgments in C-293/12 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources, Minister for Justice, Equality and Law Reform [2014] (ECLI:EU:C:2014:238); C‑203/15 Tele2 Sverige AB v Post- och Telestyrelsen [2016] (ECLI:EU:C:2016:970) .
  78. ECtHR, the Chamber judgments in Centrum för Rättvisa v Sweden app no. 35252/08 (ECtHR 19th June 2018); Case of Big Brother Watch and Others v United Kingdom app no. 58170/13, 62322/14 and 24960/15 (ECtHR 13th September 2018) .

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