| The law of State responsibility is largely customary in nature; its codification is provided by the Draft Articles on the Responsibility of States for Internationally Wrongful Acts. While some of the Articles are more controversial, they are generally accepted as reflective of customary law. The law of State responsibility also applies to cyber operations and other cyber activities.
Every internationally wrongful act of a State has two elements: 1) attributability to the State under international law, and 2) breach of an international obligation of the State.Besides these two elements, it is necessary to ascertain whether the act in question involved any 3) circumstances precluding wrongfulness..
Notes and references
- James Crawford, “State Responsibility”, in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2008), para 1.
- Draft Articles on the Responsibility of States for Internationally Wrongful Acts, prepared by the International Law Commission and approved by the General Assembly resolution 56/83 of 12 December 2001.
- James Crawford, “State Responsibility”, in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2008), para 65.
- UN GGE 2015 'Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security report' (22 July 2015) UN Doc A/70/174, para 28(f); Tallinn Manual 2.0, commentary to rule 14, para 1. See also, e.g., Japan, ‘Japan’s Position Paper for the Report of the United Nations Open-Ended Working Group on “Developments in the Field of Information and Telecommunications in the Context of International Security”’ (undated) (‘Japan recognizes that basic rules on State responsibility including those on countermeasures applies to cyberspace.’); Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019) 1 (‘Any violation of [obligations under international law that apply to states in cyberspace] that is attributable to a state constitutes an internationally wrongful act, unless there is a ground for precluding the wrongfulness of an act recognised in international law’); United Kingdom, ‘Statement on Other Disarmament Measures and International Security to the 72nd UNGA First Committee’ (23 October 2017) (‘We reaffirm that the law of state responsibility applies to cyber operations in peacetime’).
- Articles on State Responsibility, Art 2.
- Articles on State Responsibility, Arts 20-26.