National position of the Russian Federation (2021)

Introduction

This is the national position of the Russian Federation on international law applicable to cyberspace. The position has been submitted by the Russian Federation and included within the official UNGGE compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States. The compendium has been publicly released in August 2021.

Applicability of international law

"Russia assumes that, for the present, the international community has reached consensus on the applicability of the universally accepted principles and norms of international law, which are enshrined, first and foremost, in the Charter of the United Nations and the Declaration on principles of international law, friendly relations and cooperation among States in accordance with the Charter of the United Nations of October 24, 1970, to information space. These include, in particular, the principles of sovereign equality of States, non-use of force and threat of force, settlement of international disputes by peaceful means, non interference into internal affairs of States, obligation of States to cooperate with each other, equal rights and self-determination of peoples, fulfillment of international law obligations in good faith, inviolability of State borders, and territorial integrity of States. This understanding was agreed upon at relevant UN platforms on international information security and set forth, inter alia, in the 2013 and 2015 reports of the UN Group of Governmental Experts (GGE) and in the 2021 report of the UN Open-ended Working Group (OEWG), as well as in the UN General Assembly resolution (A/RES/73/27, para. 17 of the preamble) proposed by Russia and adopted in 2018. It is presumed that international obligations of States, including those stemming from international treaties as the main sources of international law, are applicable in information space.

At the same time, given the specific legal nature of the information environment, notably, the fact that activities therein can be anonymous, the application of international law to the use of information and communications technologies (ICTs) should not be automatic and should not be carried out by simple extrapolation. There is a need to substantively discuss the issue of how specific instruments of the existing international law apply to the ICT-sphere, as well as to elaborate a universal approach to this matter under the UN auspices."

Attribution

"Under customary international law, a State is responsible for activities of its institutions, as well as that of individuals acting under its control. In information space it may be difficult to determine whether an individual is acting under control of a State or with its acquiescence. In this regard, it becomes increasingly relevant to formalize the norm of the 2015 GGE report stating that all accusations of organizing and implementing wrongful acts brought against States should be substantiated, as legally binding. In any case, one should refrain from publicly imposing responsibility for an incident in information space on a particular State without supplying necessary technical evidence".

Countermeasures

"The countermeasures, which can be taken by an injured State against a State which is responsible for an internationally wrongful act, shall not affect the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations; obligations for the protection of fundamental human rights; obligations of a humanitarian character prohibiting reprisals; other obligations under peremptory norms of general international law (article 50)."

State responsibility

"The possibility of attributing responsibility for particular actions in information space to States demands further study on the basis of the existing international law. The international responsibility of a State is conditioned to the commission of an internationally wrongful act by this State. According to the Articles on Responsibility of States for Internationally Wrongful Acts (elaborated by the UN International Law Commission in 2001, taken note in the UNGA resolution A/RES/56/83), there is an internationally wrongful act of a State when conduct consisting of an action or omission: 1) is attributable to the State under international law; 2) constitutes a breach of an international legal obligation of the State. The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law (article 3)."

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"Under customary international law, a State is responsible for activities of its institutions, as well as that of individuals acting under its control. In information space it may be difficult to determine whether an individual is acting under control of a State or with its acquiescence. In this regard, it becomes increasingly relevant to formalize the norm of the 2015 GGE report stating that all accusations of organizing and implementing wrongful acts brought against States should be substantiated, as legally binding. In any case, one should refrain from publicly imposing responsibility for an incident in information space on a particular State without supplying necessary technical evidence."