Attribution: Difference between revisions
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# "in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct";<ref>Articles on State Responsibility, Art. 8.</ref>
# "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";<ref>Articles on State Responsibility, Art. 9.</ref>
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Revision as of 11:07, 18 September 2018
Evidentiary standards
Evidentiary standards |
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Evidentiary standards applicable to the attribution of cyber activities are context-dependent. The law of State responsibility as such does not contain generally applicable burdens, standards, or methods of proof,[1] and these matters are instead ordinarily determined by the relevant forum.[2]
However, in case a State is considering a response to an internationally wrongful act, the standard of attribution is that of "reasonableness", i.e. "States must act as reasonable States would in the same or similar circumstances when considering responses to them."[3] Specific rules may apply to some responses, so according to a majority of the experts drafting the Tallinn Manual 2.0, when State A responds with countermeasures after misattributing an internationally wrongful act to State B, it commits an internationally wrongful act of its own, even though it correctly applied the "reasonableness" standard of attribution.[4] |
State organs and exercise of governmental authority
State organs |
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The following types of conduct are attributable to a State:
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Non-state actors
Non-state actors |
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Activities of non-State actors (groups and individuals) are generally not attributable to States, except for situations when the actor is:
Alternatively,
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Appendixes
See also
Notes and references
- ↑ Articles on State Responsibility, commentary to ch III, para 4 ("Questions of evidence and proof of such a breach fall entirely outside the scope of the articles."); ibid, commentary to Art 19, para 8 ("Just as the articles do not deal with questions of the jurisdiction of courts or tribunals, so they do not deal with issues of evidence or the burden of proof.").
- ↑ Tallinn Manual 2.0, Chapter 4 Section 1 chapeau, paragraph 8.
- ↑ Tallinn Manual 2.0, Chapter 4 Section 1 chapeau, paragraph 10.
- ↑ Tallinn Manual 2.0, Chapter 4 Section 1 chapeau, paragraph 12; see also ILC Articles on State Responsibility, Art 49, para 3 (“A State taking countermeasures acts at its peril, if its view of the question of wrongfulness turns out not to be well founded.”)
- ↑ Articles on State Responsibility, Art. 4(1).
- ↑ Articles on State Responsibility, Art. 6.
- ↑ Articles on State Responsibility, Art. 5.
- ↑ Articles on State Responsibility, Art. 8.
- ↑ Articles on State Responsibility, Art. 9.
- ↑ Articles on State Responsibility, Art. 10(1).
- ↑ Articles on State Responsibility, Art. 10(2).
- ↑ Articles on State Responsibility, Art. 11.
Bibliography and further reading
- MN Schmitt (ed), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (CUP 2017)
- Etc.