Scenario 08: Certificate authority hack

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Seal, Basel University. Photo by User:Mattes (CC-BY-SA 2.5).

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?

1 Scenario[edit | edit source]

1.1 Keywords[edit | edit source]

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

1.2 Facts[edit | edit source]

[F1] 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 (incident 1). Indicators of compromise (IoCs) point to the use of proxies (an unaffiliated group) in incident 1.

[F2] 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 State B’s intelligence service ordered and paid the above-mentioned group to issue some of the fraudulent certificates, including to the company register in State A. State B's intelligence service then used the certificates in conducting its mass surveillance operation.

[F3] 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.

[F4] State A and State B are State parties to the International Covenant on Civil and Political Rights (ICCPR).[1]

1.3 Examples[edit | edit source]

2 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 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.

2.1 Attribution[edit | edit source]

2.1.1 Non-State actors[edit | edit source]

Non-State actors
Activities of non-State actors (groups and individuals) are generally not attributable to States. However, it is rare that such conduct is attributable to a State, in particular in situations when 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]


  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]

[L2] 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]

2.1.2 State organs[edit | edit source]

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]

[L3] 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).

2.2 Breach of an international obligation[edit | edit source]

2.2.1 Obligation to respect the sovereignty of other States[edit | edit source]

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] and it was reportedly not challenged by any of the over fifty States that participated in the process of consultations regarding the Manual prior to its publication in 2017.[18] This view has now been adopted by several States including Austria,[19] the Czech Republic,[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 advocated by the U.S. Department of Defense General Counsel.[27] By this approach, cyber operations never violate the sovereignty of a State, 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 one State: the Netherlands.[42] 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”.[43]

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.[44]

[L4] There is no evidence that options 1 or 2 would be of relevance in this scenario.

[L5] 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.

[L6] 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.[45] 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).

[L7] 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.

[L8] The relevance of Option 5 depends on the legal qualification of the mass interception operation conducted by State B against individuals located in State A’s territory (incident 2). On one view, this is merely surveillance targeted against private persons which, as such, does not interfere with State A’s governmental functions. By contrast, another view is that if the operation in question was conducted in order to collect evidence for criminal proceedings without the consent of State A, then it qualified as a non-consensual exercise of law enforcement functions in State A’s territory. Because law enforcement is exclusively reserved to the territorial State under international law, on this view State B’s conduct would have violated State A’s sovereignty.[46]

[L9] 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 is unsettled in the present state of international law and depends primarily on the interpretation of the actual nature of State B’s conduct.

2.2.2 Prohibition of intervention[edit | edit source]

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.[47]

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 “choice of a political, economic, social, and cultural system”[47] or the conduct of national elections[48]), and external affairs (“formulation of foreign policy”;[47] “recognition of states and membership of international organisations”[48])—the so-called domaine réservé of States.[49] 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. However, in the cyber context, the Tallinn Manual 2.0 suggests that “the coercive effort must be designed to influence outcomes in, or conduct with respect to, a matter reserved to a target State”.[50] 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)”.[51] This approach distinguishes coercing or compelling the target State from merely influencing it by persuasion or propaganda and from causing nuisance without any particular goal.[52] The element of coercion also entails the requirement of intent.[53]
  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.[54]

[L10] 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).

[L11] 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.

2.2.3 Obligations arising from international human rights law[edit | edit source]

International human rights law
International human rights law applies in cyberspace; individuals enjoy the same human rights online as they enjoy offline.[55] 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.[56]

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);[57] 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)[58], the European Union (Charter of Fundamental Rights of the European Union – EUCFR),[59] and America (American Convention on Human Rights – ACHR)[60], 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]”.[61] 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).[62] 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”.[63] 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.[64] 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,[65] 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[66] and the right to freedom of opinion and expression.[67]
  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.[68]

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).[69]

[L12] (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 natural persons if they were under its jurisdiction or control.

[L13] 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 the acting State (here, State B), which must ensure that its conduct is in accordance with the requirements of the ICCPR.[70]

[L14] By contrast, the counterargument is that extraterritorial measures—such as interception of communications abroad—which do not involve an exercise of physical control over a person or a location fall outside of the jurisdiction and control of the acting State for the purposes of IHRL.[71] On this view, State B could therefore not be held responsible for violating human rights of the individuals concerned.

[L15] (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).[72] Depending on the goal of State B, the interception might also implicate Article 19 ICCPR (right to freedom of expression).

[L16] (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.

[L17] 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 that it would be extremely difficult for bulk online surveillance to be compatible with the EUCFR;[73] however, as of October 2018, the case-law of the ECtHR seems to be developing in a less strict direction.[74] Although these rulings do not directly apply to States not members of the relevant treaty regimes, they may nonetheless carry persuasive value for the further development of the law in this area.

[L18] 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.

[L19] The positive obligation of State A (to take all reasonable measures to protect the human rights of persons in its territory who have been targeted by State B's operation) encompasses protecting the persons from further abuse of their rights, taking appropriate measures against the perpetrators of the abuse, but also measures to prevent an abuse if there are grounds to believe that such abuse will occur. In the situation at hand, the obligation would likely include the duty of State A to rapidly investigate incident 1 and to prevent or reduce the impact of incident 2 by immediately informing the international cyber security community about the fraudulent certificates.

3 Checklist[edit | edit source]

  • Attribution:
    • Did State B provide instructions or exercise direction or control over the non-State actor?
    • 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?
    • Did State B usurp State A’s inherently governmental functions by its cyber operation in State A’s territory?
  • Prohibition of 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?
    • Which human rights are implicated by State B’s cyber operation?
    • Is State B’s cyber operation justified from the perspective of international human rights law?

4 Appendixes[edit | edit source]

4.1 See also[edit | edit source]

4.2 Notes and references[edit | edit source]

  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. See Michael N Schmitt and Liis Vihul, ‘Respect for Sovereignty in Cyberspace’ (2017) 95 Tex L Rev. 1639, 1649 (noting that States ‘voiced no meaningful objection to Rule 4’ and that ‘it appeared to be received knowledge that a primary rule on territorial-sovereignty violations existed and applied to cyber operations.’).
  19. 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’.
  20. 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.’
  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. Norbert Riedel, ‘Cyber Security as a Dimension of Security Policy’ (18 May 2015), arguing that ‘[e]ven in cases where one cannot speak of a use of force, the use of cyber capabilities might constitute a violation of sovereignty, if the attack can be attributed to a state, which then in turn could lead to consequences within the confines of public 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. Dutch Ministry of Foreign Affairs, Letter to the parliament on the international legal order in cyberspace, Letter of 5 July 2019 from the Minister of Foreign Affairs to the President of the House of Representatives on the international legal order in cyberspace, p. 3.
  43. French Ministry of the Armies, International Law Applied to Operations in Cyberspace, p. 6.
  44. 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.
  45. 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”.
  46. 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.”
  47. 47.0 47.1 47.2 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14, para 205.
  48. 48.0 48.1 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.
  49. 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”).
  50. Tallinn Manual 2.0, commentary to rule 66, para 19.
  51. 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.
  52. Tallinn Manual 2.0, commentary to rule 66, para 21.
  53. Tallinn Manual 2.0, commentary to rule 66, paras 19, 27.
  54. Tallinn Manual 2.0, commentary to rule 66, para 24 (The exact nature of the causal nexus was not agreed on).
  55. 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.
  56. 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.
  57. 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).
  58. 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.
  59. Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000 (EUCFR).
  60. American Convention on Human Rights (open for signature from 22 November 1969, entered into force 18 July 1978), 1144 UNTS 123 (ACHR).
  61. Article 2(1) ICCPR.
  62. 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.
  63. Cf, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ Rep 136, para 111.
  64. 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].
  65. See, for example, Marko Milanovic, ‘Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age’ (2015) 56/1 HarvIntlLJ 81.
  66. Article 17 ICCPR; Article 8 ECHR; Article 7 EUCFR; Article 11 ACHR. The exact titles and scopes of the provisions vary.
  67. Article 19 ICCPR; Article 10 ECHR; Article 11 EUCFR; Article 13 ACHR. The exact titles and scopes of the provisions vary.
  68. 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.
  69. See, Velásquez Rodríguez v. Honduras, (Merits) IACrtHR (Ser. C) No. 4 (29 July 1988) [177].
  70. Marko Milanovic, ‘Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age’ (2015) 56/1 HarvIntlLJ , pages 118-119
  71. Tallinn Manual 2.0, commentary to rule 34, para 9 (noting the majority view that “physical control over territory or the individual is required before human rights law obligations are triggered”).
  72. See, eg, Case of Big Brother Watch and Others v United Kingdom app no. 58170/13, 62322/14 and 24960/15 (ECtHR 13th September 2018) [303] (the notion of “interference” includes “the interception of the content of communications [and] the interception or obtaining of communications data”).
  73. 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).
  74. 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).

4.3 Bibliography and further reading[edit | edit source]

4.4 Contributions[edit | edit source]

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