National position of Pakistan (2023)

Introduction

This is the national position of Pakistan on the application of international law in cyberspace. Pakistan presented its national position on the application of relevant international law to State conduct in cyberspace in March 2023 in a verbal note to the UN Office for Disarmament Affairs (UNODA).

Applicability of international law

“6. Pakistan believes that the principles of non-use of force, sovereign equality of all nations, non-interventionism, and peaceful settlement of disputes, as enshrined in the UN Charter, continue to apply in cyberspace as in the physical world.

7. Moreover, there also exists an agreement among the States, as reflected in the reports of GGE and OEWG, that ‘International law, and in particular the Charter of the United Nations, is applicable and essential to maintaining peace and stability and promoting an open, secure, stable, accessible and peaceful ICT environment. In this regard, States were called upon to avoid and refrain from taking any measures not in accordance with international law, and in particular the Charter of the United Nations’.

8. However, Pakistan acknowledges the fact that considering the unique attributes of cyberspace and the transnational nature of cyber technologies applicability of international law poses certain challenges which need to be addressed. Therefore, Pakistan supports an objective debate among the Member States to agree on defining the mechanism for the application of the concepts of sovereignty, self-defense, non-use of force, peaceful settlement of disputes, and attribution in cyberspace. The reports of OEWG and GG also concluded that further common understandings need to be developed on how international law applies to State use of ICTs."

Use of force

"6. Pakistan believes that the principles of non-use of force, sovereign equality of all nations, non-interventionism, and peaceful settlement of disputes, as enshrined in the UN Charter, continue to apply in cyberspace as in the physical world."

Prohibition of intervention

"6. Pakistan believes that the principles of non-use of force, sovereign equality of all nations, non-interventionism, and peaceful settlement of disputes, as enshrined in the UN Charter, continue to apply in cyberspace as in the physical world."

Sovereignty

"6. Pakistan believes that the principles of non-use of force, sovereign equality of all nations, non-interventionism, and peaceful settlement of disputes, as enshrined in the UN Charter, continue to apply in cyberspace as in the physical world."

International humanitarian law (jus in bello)

“9. Like international law including the UN Charter, there also exists a consensus among the States that International Humanitarian Law (IHL) does have applicability in cyberspace. However, the real debatable point is how IHL applies to cyberspace. Moreover, States have divergent set views on modifying the existing framework of IHL in view of the constantly changing nature of warfare.

10. In the past, efforts were made in the form of projects like the Tallinn Manual 3.0 or the Cyber Law Toolkit, which are academic, non-binding studies to examine the applicability of international law and IHL in cyberspace. The Tallinn Manual provides much guidance in this regard. However, key issues relating to the defining of a threshold for an armed conflict, status, and attribution remain unsettled.

11. The most important issue, while discussing the application of IHL in cyberspace, is that of ensuring the transposition of the three cardinal principles of International Humanitarian Law, namely, distinction, proportionality, and precaution during cyber-operations. Their application is complicated because of the complexity of cyber-operations, the interconnectedness of computer systems, and the use of the same internet infrastructure by both civilians and the military. Militaries utilize the same internet backbone and transmission lines for communication, used by the civilian critical infrastructure. Targeting an adversary's military internet infrastructure during a conflict may result in civilian human and financial loss.

12. Pakistan believes that the Geneva Conventions and its Additional Protocols (APs) related to distinction whereby, parties to a conflict must distinguish between civilians and combatants and between civilian objects and military targets, continue to apply during cyber conflicts. Moreover, the use of any type of cyber weapon which causes indiscriminate damage is outlawed under IHL and the critical civilian infrastructure and the civilian population shall remain protected during cyber conflicts. Pakistan is of the view that owing to the interconnected nature of the internet and related infrastructure, the existing framework of IHL needs transformations to accommodate the needs of modern warfare to guarantee that the cardinal principles of IHL i.e. distinction, proportionality, and precaution are upheld.

13. In view of the above-mentioned limitations of the existing framework of IHL, Pakistan calls for the formulation of a legally-binding instrument to not only promote the responsible behavior of States in cyberspace and to regulate the use of cyber and other digital technologies to ensure that they will not be violating the IHL."

Attack (international humanitarian law)

“14. [...] Pakistan considers the following uses of cyber and other digital technologies, which constitute a cyber-attack and must be outlawed under IHL:

• Cyber and any digital weapon with the capacity to indiscriminately and disproportionately target critical civilian infrastructure and may cause human and financial loss at a mass scale.
• The employment of cyber and other digital weapons which undermines the confidentiality, integrity, and the availability of a critical civilian infrastructure which includes but is not limited to health, transportation, energy, banking and financial sector, civilian logistical supply chains, undersea fiber optic cables, satellites, and other telecommunication networks.
• Any attempt to delete, destroy and manipulate the data essential for the smooth functioning of the critical civilian infrastructure and may impair its operations.
• Employment of cyber and other digital technologies to spread fear and chaos among the civilian population through disinformation.”

Attribution

"15. Pakistan hold the view that until the conundrum of the attribution doesn't get resolved, the proper application of international law and IHL in cyberspace will not be possible. Because of the factors like the use of cyberspace by both State and Non-State actors, anonymity, and the transnational nature of the internet, the fair attribution of a cyber-attack to its actual perpetrator is complex, but not insurmountable. Strong coordination and cooperation among the Member States may result in an accurate tracing of IP addresses back to the origin of the attack.

16. It is indispensable to solve the conundrum of attribution to ensure that the attackers, whether State or Non-State actors, shall be held accountable if found violating international law."

Appendixes

See also

• UNODA, 'Pakistan’s inputs in response to the letter dated 11 March 2020 from the Chair of the Open-ended Working Group on developments in the field of information and telecommunications in the context of international security (OEWG)'.
• UNODA, 'Working Paper by Pakistan: Open-Ended Working Group on Developments in the Field of Information and Telecommunications in the Context of International Security' (2020).