Difference between revisions of "Scenario 09: Economic cyber espionage"
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=== Bibliography and further reading ===
=== Bibliography and further reading ===
* 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)
by: Tomáš Minárik
Revision as of 11:08, 15 October 2018
Private entities become target of economic cyber espionage by or on behalf of a State. Under what circumstances can cyber espionage be attributed to the State and the latter held responsible under international law? What measures, if any, can the victim State lawfully take to respond to the intrusions?
- 1 Scenario
- 2 Legal analysis
- 2.1 Attribution to State B
- 2.2 Breach of an international obligation by State B
- 2.3 Permissible responses by State A
- 3 Checklist
- 4 Appendixes
Advanced persistent threat, economic cyber espionage, sovereignty, diplomatic and consular law, premises of the mission, persona non grata, countermeasures
State A discovers that several hi-tech companies incorporated and having headquarters in its territory are subject to an advanced persistent threat (APT) operation by unknown actors. The goal of the operation is to obtain trade secrets and other intellectual property from the companies’ computers. In the course of the operation, the APT actors exfiltrated hundreds of terabytes of technical data about the companies’ products, emails of the companies’ employees, internal memos, and other documents. After a meticulous investigation that lasts for over a year, State A determines that the operation was conducted by a military unit subordinated to State B’s General Staff and that, additionally, one diplomat at State B’s embassy in State A also took part in the operation.
State A decides to declare several diplomats of State B in State A as personae non gratae. One of them was allegedly directly involved in the cyber espionage operation, while others are merely suspected of other activities against the interests of State A. An insider in one of the victim companies, who is a State B national and who was found to be working for State B’s espionage operation, is indicted and taken into custody. State A also indicts several members of State B’s military unit who were reportedly involved in the cyber espionage operation. State B denies all allegations.
Both State A and State B are parties to the Vienna Convention on Diplomatic Relations (VCDR).
Similar real-world incidents
For a general overview of the structure of analysis in this section, see Note on the structure of articles.
The legal analysis briefly deals with attribution, then discusses whether State B breached any of its potentially relevant international obligations (illegal use of the premises of the mission, violation of State A’s sovereignty, and a violation of a supposed rule forbidding economic cyber espionage), and finally closes with a consideration of State A’s options for responding (specific remedies in diplomatic law; countermeasures).
Attribution to State B
|State organs and persons and entities in exercise of governmental authority|
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).
The espionage operation can safely be attributed to State B. This is because both the military unit and the diplomat are State organs and as such, their conduct is attributable to State B.
The legal qualification of the insider’s conduct is less clear. If the fact of “working for State B” entailed in it an ongoing relationship of subordination reaching to the level of direction or control, then the relevant conduct may also be attributed to State B.
Breach of an international obligation by State B
Violation of diplomatic law by misusing the premises of the mission
|Premises of the mission|
| In addition, it prohibits the premises of the mission from being used “in any manner incompatible with the functions of the mission” as these are laid down by the VCDR or in any other relevant international legal rules. In this regard, the VCDR specifically notes that legitimate functions of the mission include “[a]scertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State”. This formulation thus legitimates the gathering of intelligence as long as it is conducted in a manner compatible with the domestic law of the receiving State. By contrast, most States criminalize espionage, including economic espionage, under their domestic law, and therefore conduct that falls under such domestic prohibitions will also constitute a violation of Article 41 of the VCDR.|
The cyber espionage operations conducted by State B’s diplomat from the premises and cyber infrastructure of State B’s embassy most likely violated the domestic law of State A, which can be expected to prohibit foreign espionage as most other States do. As such, the operations would have amounted also to a violation of State B’s international obligations.
Obligation to respect the sovereignty of other States
|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,|
Multiple declarations by the UN, NATO, OSCE, the European Union, 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.
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. 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.”
As a general rule, each State must respect the sovereignty of other States. 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.
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:
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.
The diplomat of State B working at the embassy in State A might have violated State A’s sovereignty by engaging in cyber espionage operations against State A’s companies. This is because the diplomat was physically present in State A’s territory (option 1).
The insider might have violated State A’s sovereignty by engaging in cyber espionage from State A’s territory (option 1), but only if she was an organ of State B or her activities can be otherwise attributed to State B.
On this ground, State B in any case only incurs responsibility for the activities of the diplomat and the insider on the foreign soil, but not for its military unit conducting the cyber espionage operation from its own territory.
Violation of a potential rule in international law forbidding economic cyber espionage
|Economic cyber espionage|
| The G20 countries reaffirmed in 2015 that “no country should conduct or support ICT-enabled theft of intellectual property, including trade secrets or other confidential business information, with the intent of providing competitive advantages to companies or commercial sectors.” In September 2015, the US and China agreed on a similar commitment on a bilateral basis.
Therefore, there is a push to curb the practice by developing a prohibition of such practice as a matter of international law.
However, according to the prevailing opinion, no such prohibition has crystallised in customary international law. In this regard, it is noteworthy that the 2015 UN GGE report does not mention economic cyber espionage among the applicable norms, rules, and principles of responsible State behaviour in cyberspace. Several authors, including experts of the Tallinn Manual 2.0, consider that there is no distinction between economic cyber espionage and other forms of cyber espionage in general international law. Additionally, no international consensus exists that agreements such as the WTO TRIPS protect trade secrets against espionage conducted by a foreign state, and it is unclear whether the affected company can challenge the spying State in a domestic court or pursuant to a bilateral investment treaty, if there is one.
Accordingly, such conduct is not subject to any general prohibition under extant international law.
Hence, the mere characterization of State B’s cyber operations as amounting to economic cyber espionage is insufficient for the establishment of its international responsibility.
Permissible responses by State A
It should be reiterated that State B violated its obligation under Article 41 VCDR by using the premises of the mission for a cyber espionage operation; it may also have violated State B’s sovereignty by the same activity, and by using the insider in State A’s territory for the spying.
The indictments of the insider and of the members of State B’s military unit constitute an exercise of criminal jurisdiction of State A, without direct relevance for the purposes of analysis under public international law.
Persona non grata
|Persona non grata|
| When they are declared personae non gratae, the sending State has to recall them or terminate their functions. Declaring personae non gratae those diplomats who were suspect of other activities against the interests of the receiving State without strong evidence is also lawful, since the receiving State's decision is fully discretionary and it does not need to provide any reasons.
The declaration as persona non grata is a specific remedy under the VCDR. However, this remedy is not the only one available; if the sending State's operation amounts to an internationally wrongful act, the receiving State could possibly invoke countermeasures in its response.
State B's operation does amount to an internationally wrongful act, so countermeasures could be available:
An injured State may only take countermeasures against the responsible State if the following conditions are met:
Additionally, the countermeasures must fulfil the following requirements:
Taken countermeasures must be suspended if the internationally wrongful act has ceased or if “the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties”, and they must be terminated as soon as the responsible State has complied with its (secondary) obligations.
Only the injured State may take countermeasures, unless there has been a violation of a norm of erga omnes status. Other States can only take other lawful measures.
Whether a particular measure fulfils these conditions is an objective question, while the burden of proof that the relevant conditions have been fulfilled falls on the injured State. The exact standard of proof required is unsettled in international law and it will depend on the relevant forum. However, relevant international jurisprudence tends to rely in this regard on the standard of “clear and convincing evidence”. This standard translates in practice into a duty to “convince the arbiter in question that it is substantially more likely than not that the factual claims that have been made are true.” Importantly, if a State does resort to countermeasures on the basis of an unfounded assessment that a breach has occurred, it may incur responsibility for its own wrongful conduct.
In the case at hand, it is likely that the internationally wrongful act of State B has ceased when the diplomats were expelled and the insider arrested; the act had a continuing character and was terminated by State A’s response, even though its effects (malware in State A’s systems) may have taken longer to remedy. The answer if the act was continuing would be less clear if State B continued to use its military unit to maintain the malware after State A’s response.
If, instead, State A chose to use countermeasures before or instead of declaring the diplomats personae non gratae, State B’s internationally wrongful act would be of a continuing nature. State A would only have to call upon State B to fulfil its obligations, and, if the countermeasures were not urgent, also inform State B about the decision to take countermeasures.
Importantly, State A’s countermeasures must not affect its “obligations arising from the inviolability of diplomatic or consular agents, premises, archives and documents”. For instance, hacking the diplomats’ computers would not be a legal countermeasure.
In summary, all of the responses by State A referred to in the scenario are compatible with the applicable rules of international law.
- Attribution: Is diplomat a State organ?
- Attribution: What is the link between the insider and State B?
- Diplomatic law/Espionage: Where and when are diplomats not allowed to spy?
- Sovereignty/Espionage: Is geography important for violation of sovereignty by espionage operations?
- Economic cyber espionage: Is economic cyber espionage legally different from non-economic cyber espionage?
- Permissible responses: What specific remedy does diplomatic law provide?
- Permissible responses: Are countermeasures available besides this specific remedy, and what are the conditions and requirements?
Notes and references
- Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964), 500 UNTS 95.
- ILC Articles on State Responsibility, Art 4(1).
- ILC Articles on State Responsibility, Art 6.
- ILC Articles on State Responsibility, Art 5.
- ILC Articles on State Responsibility, Art 7; Tallinn Manual 2.0, commentary to rule 15, paras. 6-7 and 12.
- Articles on State Responsibility, Art. 4; 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.”).
- 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.
- ILC Articles on State Responsibility, Art 9.
- ILC Articles on State Responsibility, Art 10(1).
- ILC Articles on State Responsibility, Art 10(2).
- ILC Articles on State Responsibility, Art 11.
- K Mačák, ‘Decoding Article 8 of the International Law Commission’s Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors’ (2016) 21 JCSL 405, 419.
- Articles on State Responsibility, Art. 8.
- Art 41 (1) VCDR.
- Art 41 (3) VCDR.
- Art 31 (1) (d) VCDR.
- See, UK, Official Secrets Act 1911, s 1; US, 18 USC §792–799.
- Cf. Darien Pun, ‘Rethinking Espionage in the Modern Era’ (2017) 18 Chicago JIL 353, 368; see also ICJ, United States Diplomatic and Consular Staff in Tehran  ICJ Rep 3, 39–40 – (describing espionage as an abuse of diplomatic functions under the VCDR).
- See also Tallinn Manual 2.0, commentary to rule 43, para. 3 (“a sending State may not use the premises of its diplomatic mission to engage in cyber espionage against the receiving State”).
- Island of Palmas (Neth. v. U.S.), 2 RIAA 829, 838 (Perm. Ct. Arb. 1928).
- UNGA Res 71/237 (30 December 2015) UN Doc A/RES/20/237.
- 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.
- 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.
- 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).
- 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’).
- 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.’).
- 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.’
- 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’.
- 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’.
- 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’.
- 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’).
- 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.
- Cf. James Crawford, Brownlie's Principles of Public International Law (OUP 2012) 448.
- Tallinn Manual 2.0, rule 2.
- 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.')
- 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.
- Tallinn Manual 2.0, commentary to rule 4, para 5 and 12.
- 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)  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.
- Tallinn Manual 2.0, commentary to rule 4, para 7; commentary to rule 32, para 9.
- Tallinn Manual 2.0, commentary to rule 4, para 11.
- Tallinn Manual 2.0, commentary to rule 4, para 12.
- Tallinn Manual 2.0, commentary to rule 4, para 13.
- Tallinn Manual 2.0, commentary to rule 4, para 14.
- Tallinn Manual 2.0, commentary to rule 4, para 15.
- Tallinn Manual 2.0, commentary to rule 4, para 16.
- Tallinn Manual 2.0, commentary to rule 4, para 18.
- 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.
- President of the United States, ‘International Strategy for Cyberspace: Prosperity, Security, and Openness in a Networked World’ (2011).
- G20 Leaders’ Communiqué (15–16 November 2015), para 26; see also G7 Principles and Actions on Cyber (Annex to the Ise-Shima Declaration from 27 May 2016).
- See US, ‘FACT SHEET: President Xi Jinping’s State Visit to the United States’ (25 September 2015).
- 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.
- Catherine Lotrionte, ‘Countering State-Sponsored Cyber Economic Espionage Under International Law’ (2015) 40 N.C. J. INT'L L. & COM. REG. 443, 488-492; David Fidler, ‘Economic Cyber Espionage and International Law: Controversies Involving Government Acquisition of Trade Secrets through Cyber Technologies’ (2013) 17/10 ASIL Insights; Erica Häger & Carolina Dackö, ‘Economic Espionage: A Report by Mannheimer Swartling’ (2018).
- Tallinn Manual 2.0, rule 32, commentary 3.
- For an opposing view, see Russell Buchan, ‘The International Legal Regulation of State-Sponsored Cyber Espionage’ (2016) in International Cyber Norms: Legal, Policy & Industry Perspectives, Anna-Maria Osula and Henry Rõigas (Eds.), NATO CCD COE Publications, Tallinn 2016.
- Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C to the Agreement Establishing the World Trade Organization (signed on 15 April 1994 in Marrakesh), 1869 UNTS 299, 33 ILM 1197.
- Erika Häger & Carolina Dackö, ‘Economic Espionage: A Report by Mannheimer Swartling’ (2018), page 5: “Economic espionage, to the extent it qualifies as a violation of intellectual property rights, should arguably be treated as an act comparable to commercial activities, jure gestionis. A [S]tate would then not be able to claim state immunity for such acts and could thus instead face a normal trial in a domestic court.“
- Art 31 (1) VCDR.
- Art 9 (1) VCDR.
- Jean D’Aspremont, ‘Persona Non Grata’, in Rudiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2008) (updated January 2009): “Given that the reasons need not be given by the receiving State when declaring a diplomatic or consular agent of the sending State persona non grata, the declaration of a diplomatic agent as persona non grata is utterly discretionary. The receiving State may thus make use of it for various reasons, whether for the behaviour of the agent himself or due to the actions of the sending State.”
- United States Diplomatic and Consular Staff in Tehran, United States v Iran, Judgment, ICGJ 124 (ICJ 1980), 24 May 1980, paragraph 85.
- Jean D’Aspremont, ‘Persona Non Grata’, in Rudiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2008) (updated January 2009), para. 16.
- ILC Articles on State Responsibility, Commentary, part 3 ch 2 at para 1.
- ILC Articles on State Responsibility, Art 49(1); Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment)  ICJ Rep 7, para 83.
- ILC Articles on State Responsibility, Art 52(3) – 52(4).
- ILC Articles on State Responsibility, Art 52(1)(a). According to the UK Attorney General, the UK does not feel legally obliged, when taking countermeasures in response to a covert cyber intrusion, to “give prior notification to the hostile state”. UK Attorney General, Jeremy Wright QC MP, ‘Cyber and International Law in the 21st Century’.
- ILC Articles on State Responsibility, Art 28-41; the list of consequences includes (i) continued duty of performance, (ii) cessation and non-repetition, (iii) reparation, and (iv) particular consequences of a serious breach of obligations under peremptory norms of general international law.
- ILC Articles on State Responsibility, Art 52(1)(b) – 52(2).
- ILC Articles on State Responsibility, Art 49(1); Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment)  ICJ Rep 7, para 87. The list of consequences in Art 28-41 includes (i) continued duty of performance, (ii) cessation and non-repetition, (iii) reparation, and (iv) particular consequences of a serious breach of obligations under peremptory norms of general international law.
- ILC Articles on State Responsibility, Art 49(3).
- Such as the obligation to refrain from the threat or use of force as embodied in the UN Charter, obligations for the protection of fundamental human rights, and obligations of a humanitarian character prohibiting reprisals. ILC Articles on State Responsibility, Art 50(1).
- ILC Articles on State Responsibility, Art 50(2).
- Articles on State Responsibility, Art 51; Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment)  ICJ Rep 7, para 85.
- ILC Articles on State Responsibility, Art 54.
- ILC Articles on State Responsibility, Commentary in Part 3, Chapter 2 on Art 49, para 3.
- ILC Articles on State Responsibility, Commentary to Part One, Chapter 5, para 8 (noting that “[i]n a bilateral dispute over State responsibility, the onus of establishing responsibility lies in principle on the claimant State”).
- See, eg, Trail Smelter case (United States v Canada) (Award) (1941) 3 RIAA 1905, 1965; see also Robin Geiss and Henning Lahmann, ‘Freedom and Security in Cyberspace: Shifting the Focus Away from Military Responses Towards Non-Forcible Countermeasures and Collective Threat-Prevention’ in Katharina Ziolkowski (ed), Peacetime Regime for State Activities in Cyberspace (NATO CCD COE 2013) 624 (noting that in cases where State responsibility is involved, the required threshold tends to shift towards ‘clear and convincing’”).
- James Green, ‘Fluctuating Evidentiary Standards for Self-Defence in the International Court of Justice’ (2009) 58 ICLQ 163, 167 (emphasis original).
- ILC Articles on State Responsibility, Commentary in Part 3, Chapter 2 on Art 49, para 3.
- Articles on State Responsibility, Article 14(2).
Bibliography and further reading