Scenario 11: Sale of surveillance tools in defiance of international sanctions

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In spite of an international embargo, a State procures and uses exploits developed by a private entity in order to pursue its political objectives. Analysis in this scenario considers whether the use of the exploits violates the human rights obligations of the acting State or the sovereignty of other States. It also looks at which States are responsible for breaking the embargo and whether the Convention on Cybercrime has any bearing on the matter.

1 Scenario[edit | edit source]

1.1 Keywords[edit | edit source]

International sanctions, malware, attribution, cybercrime, international human rights law, sovereignty, surveillance, cyber espionage

1.2 Facts[edit | edit source]

[F1] A private company, incorporated in State A, searches for, purchases, and sells software vulnerabilities, and produces ready-made tools for clandestine access to, and surveillance of, computer systems and networks (“surveillance tools”).

[F2] There are allegations that the company has sold a package of surveillance tools to State B (incident 1). State B's security police has allegedly used these tools against human rights activists, journalists, and other dissidents both in its territory and abroad (incident 2). State B has been subject to an embargo under a UN Security Council resolution, which, inter alia, requires all UN member states to “prevent the direct or indirect supply, sale or transfer” [1] through their territories or by their nationals of dual-use technologies, some of which may be used in surveillance tools, to State B, citing widespread persecution of the dissidents in that State.

[F3] The company gets hacked by an unknown group of hackers and information about its deals with State B is subsequently leaked to the public, along with the surveillance tools (incident 3). State A declares that it will not prosecute the company or any of its executives and employees because their activities do not constitute a criminal offence under its domestic law (incident 4).

[F4] States A and B are both parties to the International Covenant on Civil and Political Rights (ICCPR).[2] State A is Party to the Convention on Cybercrime.[3]

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 of the present scenario first deals with the attribution of the described incidents, and then examines possible breaches of the UN SC Resolution imposing the embargo, obligations arising from international human rights law, the obligation to respect the sovereignty of other States, and the obligation to harmonize domestic law in accordance with the Convention on Cybercrime.

2.1 Attribution[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";[4]
  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;[5]
  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."[6]

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).[7]

[L2] Incident 1 (Sale of the tools): State organs of State A are not directly involved in the sale of the surveillance tools. However, the conduct of a State leading to an internationally wrongful act can consist of an action or an omission.[8] In this case, since the company which sold the surveillance tools was subject to State A's jurisdiction, the latter's organs' failure to prevent the sale is attributable to State A.[9]

[L3] The violation of the UN SC Resolution can also be attributed to State B. In particular, if State B now possesses the tools in fact (as revealed by the leak in incident 3), it follows that its State organs must have been involved in the supply, sale, or transfer of the tools.

[L4] Incident 2 (Use of the tools against the dissidents): State B’s security police used the surveillance tools against human rights activists, journalists, and other dissidents both in its territory and abroad. Any human rights violations caused by the security police operations can be attributed to State B because the security police is a State organ of State B.

[L5] Incident 3 (Hack of the company): The company was hacked by an unknown group. Since there is no information about its affiliation or location, this incident is impossible to attribute on the basis of the facts provided.

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";[10]
  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";[11]
  3. "an insurrectional movement which becomes the new Government of a State";[12] 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".[13]


  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".[14]

[L6] Incident 4 (Not prosecuting the company): The fact that State A did not prosecute the company or any of its executives and employees means that the activities of the company may lead to further violations of the UN SC Resolution embargo (similar to incident 1). However, this in itself does not mean that State A assumes the attribution for the company’s activities, unless there is a further affirmative act on part of State A as would be the case, for example, if it acknowledged and adopted the conduct in question as its own.[15]

[L7] Nevertheless, State A’s omission of not having its domestic law harmonized with the obligations from the Convention on Cybercrime is certainly attributable to that State. The failure of State A’s organs more generally to prevent any sale will remain attributable to State A.[16]

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

2.2.1 Obligations pursuant to the UN Security Council Resolution[edit | edit source]

[L8] Considering that the sanctions were issued pursuant to a UN Security Council Resolution, the failure of State A to prevent the sale of the surveillance tools to State B would amount to a violation of State A’s obligations under the resolution.[17] Given the purpose of UN sanctions regimes and the practice, it is questionable, however, whether such obligations are absolute; due diligence standard may be invoked as sufficient. Nevertheless, State A having openly refrained from prosecution of the company, it can hardly be considered to have acted with due diligence.

[L9] State B, too, is in non-compliance with the UN Security Council Resolution by acquiring the surveillance tools.

[L10] The obligation breached being based on Article 25 of UN Charter, it is owed to the international community as a whole (or can be likened to an obligation erga omnes partes)[18], so the responsibility of States A and B can be invoked by any State.[19]

2.2.2 State B’s obligation to respect human rights[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.[20] 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.[21]

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);[22] 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)[23], the European Union (Charter of Fundamental Rights of the European Union – EUCFR),[24] and America (American Convention on Human Rights – ACHR)[25], 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]”.[26] 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).[27] 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”.[28] 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.[29] 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,[30] 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[31] and the right to freedom of opinion and expression.[32]
  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.[33]

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).[34]

[L11] State B’s security police used the surveillance tools against individuals both in its territory and abroad. The ICCPR obligations apply to State B’s use of the tools in its territory.[35] With regard to the use of the tools abroad, the interpretation of the ICCPR applicability is less certain.

[L12] According to one interpretation, if the organs of State B can interfere with the rights of individuals in other States without the knowledge of those States, then it is State B which has to make sure that this interference is conducted in compliance with the requirements of the ICCPR.[36] A more conservative interpretation would be that there is a lack of consensus whether the interference with cyber infrastructure outside State B’s territory can amount to exercising effective control over the individuals concerned.[37] According to this interpretation, State B could not be held responsible for its interference with human rights abroad.

[L13] By intercepting the data traffic of individuals including human rights activists, journalists, and other dissidents, State B’s security police interfered with their right to privacy as well as their right to freedom of opinion and expression, including by potentially identifying confidential sources from their communications.

[L14] While the cyber operations of State B’s security police might in theory still pass the justification test, in practice this is not very likely, particularly since State B is subject to a UN Security Council embargo due to its widespread persecution of dissidents. Moreover, it is difficult to ascertain how State B’s actions would satisfy the necessity and proportionality requirements on the facts provided.

2.2.3 State B’s obligation not to violate the sovereignty of another State[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.[38]
Multiple declarations by the UN,[39] NATO,[40] OSCE,[41] the European Union,[42] 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.[43] It has also been adopted by several States including Austria,[44] the Czech Republic,[45] Finland,[46] France,[47] Germany,[48] Iran,[49] and the Netherlands.[50]
  • 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.[51] This view has now been adopted by one State, the United Kingdom,[52] and has been endorsed by the U.S. Department of Defense General Counsel.[53] 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.[54] 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.”[55][56]

As a general rule, each State must respect the sovereignty of other States.[57] 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.[58]

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.[59] 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.[60]
  2. Causation of physical damage or injury by remote means;[61] again, “a few” Experts took the position that this is a relevant but not a determinative factor by itself.[62]
  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);[63] 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.[64]
  4. Interference with data or services that are necessary for the exercise of "inherently governmental functions";[65] although the Experts could not conclusively define the term "inherently governmental functions", they agreed that, for example, the conduct of elections would so qualify.[66]
  5. Usurpation of "inherently governmental functions", such as exercise of law enforcement functions in another State’s territory without justification.[67]

The Tallinn Manual’s view of what constitutes a violation of sovereignty has been expressly endorsed by several States including Germany[68] and the Netherlands.[69] 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”.[70]

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.[71]

[L15] The surveillance tools were used by the security police of State B against individuals in other States’ territory and, presumably, against their data stored in other States’ cyber infrastructure. On the facts provided, there is no indication that the use of the surveillance tools was conducted by a State agent physically present in the territory of another State. Moreover, there is no indication that State B’s use of the surveillance tools led to physical damage or injury, or the loss of functionality of computer systems in other States.

[L16] However, it is possible that State B has violated the sovereignty of other States by exercising their enforcement jurisdiction (option 5 above – “usurpation of inherently governmental functions”)[72] if the findings of the security police are used for the criminal investigation of these individuals and if State B did not obtain the consent of the States where the individuals or data were located.

[L17] If State B’s security police merely engaged in collecting information on the individuals for national security purposes, then it may be argued that the activities of the security police constitute permitted (or rather non-regulated by public international law [[cyber espionage]]. In such circumstances, however, although arguably not a violation of the sovereignty of other States, State B would still need to ensure that its surveillance activities complied with international human rights law (discussed above).

2.2.4 State A’s obligation to criminalize the sale of surveillance tools under the Convention on Cybercrime[edit | edit source]

[L18] State A has ratified the Convention on Cybercrime, which means that it is bound by the obligations contained therein. Article 6(1)(a)(i) states that:
“Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right: the production, sale, procurement for use, import, distribution or otherwise making available of a device, including a computer program, designed or adapted primarily for the purpose of committing any of the offences established in accordance with Articles 2 through 5 […] with intent that it be used for the purpose of committing any of the offences established in Articles 2 through 5.”
The offences in Articles 2 through 5 are illegal access, illegal interception, data interference, and system interference, and the surveillance tools would serve for committing acts qualifying as illegal access and illegal interception.

[L19] The company located in State A is alleged to have produced and sold tools to State B capable of accessing computer systems and intercepting traffic; the key question is whether the tools were intended to be used for committing crimes. Judging by State B’s human rights history, this intention should be relatively easy to establish. However, according to the Explanatory Report to the Convention on Cybercrime, the provisions of the Convention which harmonize substantive criminal law do not apply to “conduct undertaken pursuant to lawful government authority”.[73] Therefore, State activities are not covered by the Convention, and they might not constitute offences under the domestic law of State A as harmonized by Articles 2 through 5 of the Convention, and therefore the company was not necessarily prohibited from selling the surveillance tools by the domestic law of State A based on Article 6 of the Convention.

[L20] This may seem somewhat paradoxical, as States usually prosecute the perpetrators of cyber operations when they have jurisdiction to do so, even if the perpetrators are employed by other States.[74] However, the Convention on Cybercrime does not require States to do so in every single case, and consequently, State A is not in violation of its obligations with regard to the Convention on Cybercrime for failing to criminalize the sale of surveillance tools to other States under its domestic law.

3 Checklist[edit | edit source]

  • Attribution:
    • What kind of omissions can be attributed to States?
    • Is the “security police” a State organ?
  • Violation of the UN SC Resolution:
    • Is there a strict responsibility of State A for not preventing the sale of the surveillance tools by the company?
  • Human rights:
    • Is State B interfering with the right to privacy and the right to freedom of opinion and expression of individuals in its territory and abroad?
    • Is the interference in compliance with the ICCPR?
  • Violation of sovereignty:
    • Was State B exercising its jurisdiction in other States’ territories without their consent?
  • Violation of the Convention on Cybercrime:
    • Does State A have an obligation to criminalize the sale of the surveillance tools to foreign governments which may use the tools for purposes incompatible with the ICCPR?

4 Appendixes[edit | edit source]

4.1 See also[edit | edit source]

4.2 Notes and references[edit | edit source]

  1. Note: the wording of the resolution is based on UN SC, Resolution 2321 (2016) Adopted by the Security Council at its 7821st meeting, on 30 November 2016 (which, among other measures, expands the arms embargo against the DPRK to the items listed in a new conventional arms dual-use list). Compare also Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items consolidated version as of 16 December 2017, Annex IIe, Part 3, section 1(1)(d) (disallowing, under specific conditions, the export of items which use “interception technologies and digital data transfer devices for monitoring mobile phones and text messages and targeted surveillance of Internet use”). For an analysis of export controls of cyber surveillance technologies, see Bromley M, ‘Export Controls, Human Security and Cyber-Surveillance Technology: Examining the Proposed Changes to the EU Dual-use Regulation’ (2017) SIPRI.
  2. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).
  3. Council of Europe, Convention on Cybercrime (adopted 23 November 2001, entered into force 1 July 2004), ETS 185; even though the Convention is a Council of Europe treaty, it has a reach beyond the region; among the 61 Parties (as of 3 October 2018) there are, for instance, United States, Canada, Japan, Philippines, Australia, Israel, and Argentina.
  4. ILC Articles on State Responsibility, Art 4(1).
  5. ILC Articles on State Responsibility, Art 6.
  6. ILC Articles on State Responsibility, Art 5.
  7. ILC Articles on State Responsibility, Art 7; Tallinn Manual 2.0, commentary to rule 15, paras. 6-7 and 12.
  8. ILC Articles on State Responsibility, Art 2.
  9. ILC Articles on State Responsibility, commentary to Art 2, para 9 (“Whether a particular obligation is breached forthwith upon a failure to act on the part of the responsible State, or whether some further event must occur, depends on the content and interpretation of the primary obligation and cannot be determined in the abstract.”); ILC Articles on State Responsibility, commentary to Art 4, para 5 (“The principle of the unity of the State entails that the acts or omissions of all its organs should be regarded as acts or omissions of the State for the purposes of international responsibility.”).
  10. 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.
  11. ILC Articles on State Responsibility, Art 9.
  12. ILC Articles on State Responsibility, Art 10(1).
  13. ILC Articles on State Responsibility, Art 10(2).
  14. ILC Articles on State Responsibility, Art 11.
  15. ILC Articles on State Responsibility, Art 11.
  16. Cf. ILC Articles on State Responsibility, Art 2, para 9 (“the obligation under a treaty to enact a uniform law is breached by the failure to enact the law”).
  17. Cf. Art 25 UN Charter (requiring all member States of the UN “to accept and carry out the decisions of the Security Council”); see also Anne Peters, ‘Article 25’ in Bruno Simma et al (eds), The Charter of the United Nations: A Commentary (3rd edn, OUP 2012) vol I, 799–800 (“members are under an international legal obligation of good faith to ensure the implementation of decisions, if need be by adjusting their domestic legal order”).
  18. See E. Papastavridis, Interpretation of Security Council Resolutions under Chapter VII in the Aftermath of the Iraqi Crisis 56 International and Comparative Law Quarterly (2007) 83, at 87-88
  19. ILC Articles on State Responsibility, Art 48(1)(b).
  20. 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.
  21. 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.
  22. 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).
  23. 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.
  24. Charter of Fundamental Rights of the European Union, proclaimed on 7 December 2000 (EUCFR).
  25. American Convention on Human Rights (open for signature from 22 November 1969, entered into force 18 July 1978), 1144 UNTS 123 (ACHR).
  26. Article 2(1) ICCPR.
  27. 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.
  28. Cf, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion) [2004] ICJ Rep 136, para 111.
  29. 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].
  30. See, for example, Marko Milanovic, ‘Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age’ (2015) 56 Harvard International Law Journal 81.
  31. Article 17 ICCPR; Article 8 ECHR; Article 7 EUCFR; Article 11 ACHR. The exact titles and scopes of the provisions vary.
  32. Article 19 ICCPR; Article 10 ECHR; Article 11 EUCFR; Article 13 ACHR. The exact titles and scopes of the provisions vary.
  33. 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.
  34. See, Velásquez Rodríguez v. Honduras, (Merits) IACrtHR (Ser. C) No. 4 (29 July 1988) [177].
  35. Article 2(1) ICCPR.
  36. Marco Milanovic, ‘Human Rights Treaties and Foreign Surveillance: Privacy in the Digital Age’ (2015) 56/1 HarvIntlLJ 81, 118-119.
  37. Tallinn Manual 2.0, commentary to rule 36, para 6.
  38. Island of Palmas (Neth. v. U.S.), 2 RIAA 829, 838 (Perm. Ct. Arb. 1928).
  39. UNGA Res 71/237 (30 December 2015) UN Doc A/RES/20/237.
  40. 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.
  41. 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.
  42. 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).
  43. Michael N Schmitt, 'Virtual Disenfranchisement: Cyber Election Meddling in the Grey Zones of International Law' (2018) 19 ChiJIntlL 30,40; Tallinn Manual 2.0, commentary to rule 4, para 2 (‘States shoulder an obligation to respect the sovereignty of other States as a matter of international law’).
  44. Austria, Pre-Draft Report of the OEWG - ICT: Comments by Austria (31 March 2020), stating that ‘a violation of the principle of State sovereignty constitutes an internationally wrongful act – if attributable to a State – for which a target State may seek reparation under the law of State responsibility’.
  45. 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.’
  46. 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.’
  47. 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’.
  48. 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’.
  49. 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.’).
  50. 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’.
  51. 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’).
  52. 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.
  53. 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’.
  54. Cf. James Crawford, Brownlie's Principles of Public International Law (OUP 2012) 448.
  55. Tallinn Manual 2.0, rule 2.
  56. 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.')
  57. 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.
  58. Tallinn Manual 2.0, commentary to rule 4, para 5 and 12.
  59. 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.
  60. Tallinn Manual 2.0, commentary to rule 4, para 7; commentary to rule 32, para 9.
  61. Tallinn Manual 2.0, commentary to rule 4, para 11.
  62. Tallinn Manual 2.0, commentary to rule 4, para 12.
  63. Tallinn Manual 2.0, commentary to rule 4, para 13.
  64. Tallinn Manual 2.0, commentary to rule 4, para 14.
  65. Tallinn Manual 2.0, commentary to rule 4, para 15.
  66. Tallinn Manual 2.0, commentary to rule 4, para 16.
  67. Tallinn Manual 2.0, commentary to rule 4, para 18.
  68. Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), p. 4.
  69. Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019), p. 3.
  70. French Ministry of the Armies, International Law Applied to Operations in Cyberspace, p. 6.
  71. 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.
  72. Law enforcement undoubtedly qualifies as a "function of a State" within the meaning of the Island of Palmas case. Absent definition in public international law, we can also draw inspiration for "inherently governmental functions" in Article 2(i) of the Draft Convention on Private Military and Security Contractors as submitted to the Human Rights Council: "functions which are consistent with the principle of the State monopoly on the legitimate use of force and that a State cannot outsource or delegate to PMSCs under any circumstances. Among such functions are direct participation in hostilities, waging war and/or combat operations, taking prisoners, law-making, espionage, intelligence, knowledge transfer with military, security and policing application, use of and other activities related to weapons of mass destruction and police powers, especially the powers of arrest or detention including the interrogation of detainees and other functions that a State Party considers to be inherently State functions" (see Report of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination, 2 July 2010, A/HRC/15/25).
  73. Explanatory Report to the Convention on Cybercrime, para 38: “The Convention, therefore, leaves unaffected conduct undertaken pursuant to lawful government authority (for example, where the Party’s government acts to maintain public order, protect national security or investigate criminal offences).”
  74. APT1 – Chinese PLA Unit 61398 indictments (2014)

4.3 Bibliography and further reading[edit | edit source]

4.4 Contributions[edit | edit source]

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