Countermeasures

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Definition[edit | edit source]

Countermeasures
Countermeasures are “measures that would otherwise be contrary to the international obligations of an injured State vis-à-vis the responsible State, if they were not taken by the former in response to an internationally wrongful act by the latter in order to procure cessation and reparation”.[1] Several States, including Austria,[2] Estonia,[3] France,[4] Germany,[5] Japan,[6] the Netherlands,[7] the United Kingdom,[8] and the United States,[9] have expressly confirmed the applicability of the law of countermeasures to cyber operations. Others, including Brazil,[10] China,[11] and Cuba,[12] have expressed caution in this regard. Countermeasures should be distinguished from retorsions, which are unfriendly but lawful acts by the aggrieved party against the wrongdoer.

As a matter of general international law, an injured State may only take countermeasures against the responsible State if the following conditions are met:

  1. The existence of a prior internationally wrongful act of the responsible State against the injured State;[13]
  2. The internationally wrongful act has not ceased and “the dispute is [not] pending before a court or tribunal which has the authority to make decisions binding on the parties”, unless the “responsible State fails to implement the dispute settlement procedures in good faith”;[14]
  3. The injured State has called upon[15] the responsible State to fulfil its obligations arising from its internationally wrongful act;[16] and
  4. The injured State has notified the responsible State of its decision to take countermeasures, and offered to negotiate with that State, unless it is taking “urgent countermeasures as are necessary to preserve its rights.”[17]

Additionally, the countermeasures must fulfil the following requirements:

  1. Their aim must be to induce the responsible State to comply with the legal consequences of its internationally wrongful act;[18] in other words, the aim of countermeasures is restoration, not retribution; and the countermeasures can only target the responsible State;
  2. They “shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question;”[19]
  3. They shall not affect “obligations under peremptory norms of general international law”[20], obligations under any dispute settlement procedure between the injured and responsible State, and obligations arising from the inviolability of diplomatic or consular agents, premises, archives and documents;[21] and
  4. They must be “commensurate with the injury suffered, taking into account the gravity” of the prior unlawful act and of the rights in question (i.e. the requirement of “proportionality”).[22]

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.

There is a debate as to whether States that have not themselves been directly injured by an unlawful cyber operation may engage in countermeasures in support of the injured State (sometimes referred to as collective countermeasures).[23] In particular, one State has recently put forward the view that non-injured States “may apply countermeasures to support the state directly affected by the malicious cyber operation”.[24] This would apply where diplomatic action is insufficient, but no lawful recourse to use of force exists. This interpretation would allow States to offer active assistance to States, which may not possess sufficient cyber capabilities themselves to counter an ongoing unlawful cyber operation. This view has found some support in scholarship,[25] but was since rejected by at least one other State,[26] with other parts of scholarship reluctant to endorse it.[27] Therefore, it has to be regarded as a call for progressive development of international law, rather than a statement of the current state of international law.

Whether a particular measure fulfils these conditions is an objective question,[28] while the burden of proof that the relevant conditions have been fulfilled falls on the injured State.[29] 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”.[30] 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.”[31] 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.[32]

Appendixes[edit | edit source]

See also[edit | edit source]

Notes and references[edit | edit source]

  1. ILC Articles on State Responsibility, Commentary, part 3 ch 2 at para 1.
  2. 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. A target State may also react through proportionate countermeasures.’ (emphasis added).
  3. Estonia, ‘President of the Republic at the opening of CyCon 2019’ (29 May 2019), stating that “states have the right to react to malicious cyber operations, including using diplomatic response but also countermeasures”
  4. French Ministry of the Armies, ‘International Law Applied to Operations in Cyberspace’ (9 September 2019) 6, stating that ‘In response to a cyberattack, France may consider diplomatic responses to certain incidents, countermeasures, or even coercive action by the armed forces if an attack constitutes armed aggression.’
  5. Germany, ‘Statement by Ambassador Dr Thomas Fitschen, Director for the United Nations, Cyber Foreign Policy and Counter-Terrorism, Federal Foreign Office of Germany’ (November 2018) 3, stating that ‘in case of a cyber operation that is in breach of an international legal obligation below the level of the use or threat of force prohibited by Art. 2 (IV) [of the UN Charter] States are also entitled to take countermeasures as allowed by international law.’
  6. 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), stating that ‘Japan recognizes that basic rules on State responsibility including those on countermeasures applies to cyberspace.’
  7. Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019) 7.
  8. United Kingdom, ‘Statement on Other Disarmament Measures and International Security to the 72nd UNGA First Committee’ (23 October 2017), stating that ‘We reaffirm that the law of state responsibility applies to cyber operations in peacetime, including the availability of the doctrine of countermeasures in response to internationally wrongful acts.’
  9. Brian J. Egan, ‘Remarks on International Law and Stability in Cyberspace’ (10 November 2016), stating that countermeasures are available ‘to address malicious cyber activity’ if that activity amounts to a prior internationally wrongful act attributable to another State.
  10. Brazil, ‘Open-ended Working Group on developments in the field of information and telecommunications in the context of international security: Second Substantive Session - New York, 11 February 2020: Statement by the Delegation of Brazil’ (11 February 2020), stating that ‘In the case of malicious acts in cyberspace, it is often difficult to attribute responsibility to a particular State or actor with unqualified certainty. A decision to resort to countermeasures in response to such acts carries a high risk of targeting innocent actors, and of triggering escalation.’
  11. China, ‘Statement by the Chinese Delegation at the Thematic Debate of the First Committee of the 72th UNGA’ (October 2017), stating that ‘Countries should discuss application of international law in the manner conducive to maintain peace, avoid introducing force, deterrence and countermeasures into cyberspace, so as to prevent arms race in cyberspace and reduce risks of confrontation and conflicts.’
  12. Cuba, ‘Declaration by Miguel Rodríguez, Representative of Cuba, at the Final Session of Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security’ (23 June 2017), registering ‘serious concern over the pretension of some, reflected in paragraph 34 of the draft final report, to convert cyberspace into a theater of military operations and to legitimize, in that context, unilateral punitive force actions, including the application of sanctions and even military action by States claiming to be victims of illicit uses of ICTs.’ (emphasis added).
  13. ILC Articles on State Responsibility, Art 49(1); Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7, para 83.
  14. ILC Articles on State Responsibility, Art 52(3) – 52(4).
  15. 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’.
  16. 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.
  17. ILC Articles on State Responsibility, Art 52(1)(b) – 52(2).
  18. ILC Articles on State Responsibility, Art 49(1); Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] 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.
  19. ILC Articles on State Responsibility, Art 49(3).
  20. 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).
  21. ILC Articles on State Responsibility, Art 50(2).
  22. Articles on State Responsibility, Art 51; Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7, para 85.
  23. ILC Articles on State Responsibility, Art 54.
  24. President of Estonia, Kersti Kaljulaid, ‘President of the Republic at the opening of CyCon 2019’ (29.05.2019).
  25. Michael N Schmitt, ‘Estonia Speaks Out on Key Rules for Cyberspace’ Just Security (10.06.2019), considering the Estonian interpretation to be “an advantageous development in the catalogue of response options that international law provides to deal with unlawful acts”.
  26. French Ministry of the Armies, International Law Applied to Operations in Cyberspace, p. 10, arguing that collective countermeasures are not authorised under international law.
  27. Jeff Kosseff, ‘Collective Countermeasures in Cyberspace,’ (2020) Notre Dame Journal of International & Comparative Law Vol. 10, Iss. 1, 34; François Delerue, Cyber Operations and International Law (CUP 2020), 457.
  28. ILC Articles on State Responsibility, Commentary in Part 3, Chapter 2 on Art 49, para 3.
  29. 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”).
  30. 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’”).
  31. James Green, ‘Fluctuating Evidentiary Standards for Self-Defence in the International Court of Justice’ (2009) 58 ICLQ 163, 167 (emphasis original).
  32. ILC Articles on State Responsibility, Commentary in Part 3, Chapter 2 on Art 49, para 3.

Bibliography and further reading[edit | edit source]