Scenario 01: Election interference

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In the run-up to a major election in State A, State B conducts a series of cyber incidents aimed at influencing the election outcomes. To a varying degree, these actions impact on the electoral campaign, the administration of the elections, as well as (eventually) the election results. Analysis in this scenario considers whether any of the specific actions, individually or taken together, may constitute violations of several rules of international law, specifically the obligation to respect the sovereignty of other States, the prohibition of intervention in the internal affairs of States, and the right to privacy of individuals.

Scenario[edit | edit source]

Keywords[edit | edit source]

Election interference, hybrid threats, sovereignty, prohibition of intervention, cyber espionage, cyber reconnaissance, critical infrastructure

Facts[edit | edit source]

[F1] State A has a major election (parliamentary or presidential) coming up.

[F2] In the weeks prior to the election, a series of cyber-enabled incidents takes place, all of which independent researchers later assert to have resulted from cyber operations of the intelligence service of State B. The incidents include:

  • 1) An upsurge in the publication of unverifiable information on specific candidates, particularly in media outlets known for the dissemination of “alternative facts” (as distinguished from facts supported by known, credible, tested sources) and for promoting views close to those held by the regime in State B. Social networks get busy with "trolling", discussions on candidates’ profiles with posts often coming from user accounts that have either been recently established or cannot be verifiably linked to a real person.
  • 2) A large batch of private emails, purportedly exchanged only among members of one candidate’s campaign team, is leaked onto a well-known, publicly-accessible internet site.
  • 3) Advertisements compromising the candidates' credibility are published in print and online media, while the entity who commissioned them is either clearly artificial or known to support these candidates' electoral opponents or the regime in State B.

[F3] During the election itself:

  • 4a) The website of State A's electoral commission is rendered inaccessible by a massive DDoS attack, and the accuracy and trustworthiness of results in the public opinion are thus placed in doubt.
  • 4b) Alternatively, the commission's website is subject to a defacement that falsely claims that a specific candidate is leading the polls. That information is published by foreign media outlets that are not supportive of the other candidates.

[F4] After the election:

  • 5) State A uses an electronic ballot counting system, which is separate from the commission's website. Sometime after the election, indications appear that the system had been tampered with. If true, this would imply that there likely were inaccuracies in counting, and therefore that the reported, official election results were inaccurate.

Examples[edit | edit source]

Legal analysis[edit | edit source]

For a general overview of the structure of analysis in this section, see Note on the structure of articles.

[L1] Since attribution of the cyber incidents described above to State B is assumed as a fact, the legal analysis focusses on whether State B has breached any specific rules of international law including with regard to State A.

[L2] The analysis considers the obligation to respect the sovereignty of other States, the prohibition of intervention, and violation of individuals' privacy rights. It also deals briefly with peacetime cyber espionage or cyber reconnaissance and their bearing on the legality of State B's cyber operations.

Obligation to respect the sovereignty of other States[edit | edit source]

Sovereignty
Sovereignty is a core principle of international law. According to a widely accepted definition of the term in the 1928 Island of Palmas arbitral award,
[s]overeignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.[1]
Multiple declarations by the UN,[2] the African Union,[3] the European Union,[4] NATO,[5] OSCE,[6] and individual States have confirmed that international law applies in cyberspace. Accordingly, so too does the principle of sovereignty.[7] However, there is some debate as to whether this principle operates as a standalone rule of international law, the breach of which gives rise to state responsibility.
  • For the proponents of this view, the prohibition on violating the sovereignty of other States is a substantive primary rule of international law, the breach of which is an internationally wrongful act. This view was unanimously accepted by the experts who prepared the Tallinn Manual 2.0.[8] It has also been adopted by several States including Austria,[9] Brazil, [10] Canada,[11] the Czech Republic,[12] Estonia,[13] Finland,[14] France,[15] Germany,[16] Iran,[17] Italy,[18] Japan,[19] the Netherlands,[20] New Zealand,[21] Norway,[22] Romania[23] and Sweden.[24]
  • By contrast, the opposing view is that sovereignty is a principle of international law that may guide State interactions, but it does not amount to a standalone primary rule.[25] This view has been adopted by one State, the United Kingdom,[26] and has been partially endorsed by the U.S. Department of Defense General Counsel.[27] By this approach, cyber operations cannot violate sovereignty as a rule of international law, although they may constitute prohibited intervention, use of force, or other internationally wrongful acts.

The remainder of this section proceeds on the basis of the former “sovereignty-as-rule” approach. Those espousing the latter “sovereignty-as-principle” approach should refer to other relevant sections of the legal analysis (such as that on the prohibition of intervention or use of force).

It is understood that sovereignty has both an internal and an external component.[28] In the cyber context, the “internal” facet of sovereignty entails that “[a] State enjoys sovereign authority with regard to the cyber infrastructure, persons, and cyber activities located within its territory, subject to its international legal obligations.”[29][30] This encompasses both private and public infrastructure.[31] The external component entails that States are “free to conduct cyber activities in [their] international relations”, subject to their international law obligations.[32]

As a general rule, each State must respect the sovereignty of other States.[33]However, within the cyber realm – and particularly regarding remote cyber operations – there is still no agreement on the criteria[34] and the required threshold[35] to qualify an operation as a sovereignty violation.[36] It is clear that a cyber operation with severe destructive effects, comparable to a “non-cyber” armed attack or a use of force against a State, constitutes a violation of its sovereignty; however, with more subtle cyber operations, the question is far from settled.[37] Accordingly, the assessment needs to be done on a case-by-case basis.[38]

The following modalities, highlighted in the Tallinn Manual 2.0, represent different ways of determining what a “sovereignty violation” might mean in the context of cyber operations:

  1. A State organ conducting cyber operations against a target State or entities or persons located there while physically present in the target State's territory violates the target State's sovereignty.[39] This was agreed by all Experts drafting the Manual; however, “a few” of the Experts thought that the extensive State practice carved out an exception for espionage operations.[40]
  2. Causation of physical damage or injury by remote means;[41] again, “a few” Experts took the position that this is a relevant but not a determinative factor by itself.[42]
  3. Causation of a loss of functionality of cyber infrastructure: although the Tallinn Manual 2.0 experts agreed that a loss of functionality constituted “damage” and thus a breach of sovereignty, no consensus could be achieved as on the precise threshold for a loss of functionality (the necessity of reinstallation of the operating system or other software was proposed but not universally accepted);[43] Below this threshold, there was no agreement among the Experts whether operations that do not cause physical consequences or a loss of functionality qualify as a violation of sovereignty.[44]
  4. Interference with data or services that are necessary for the exercise of "inherently governmental functions";[45] although the Experts could not conclusively define the term "inherently governmental functions", they agreed that, for example, the conduct of elections would so qualify.[46]
  5. Usurpation of "inherently governmental functions", such as exercise of law enforcement functions in another State’s territory without justification.[47]

The Tallinn Manual’s view of what constitutes a violation of sovereignty has been expressly endorsed by several States including Canada,[48] Germany[49] and the Netherlands;[50] and followed to some extent by other States, such as the Czech Republic,[51] Norway,[52] Sweden[53] and Switzerland.[54] An alternative test has been proposed by France, which argues that a breach of sovereignty occurs already when there is “any unauthorised penetration by a State of [the victim State’s] systems”;[55]similarly, Iran has argued that “unlawful intrusion to the (public or private) cyber structures” abroad may qualify as a breach of sovereignty.[56]

Attributing the relevant cyber operation to a State different from the target State is a necessary prerequisite for qualifying the cyber operation as a violation of the target State's sovereignty.

Whether non-State actors can violate territorial sovereignty on their own is a matter of disagreement.[57]

Publicly available national positions that address this issue include: Common position of the African Union (2024) (2024), National position of Australia (2020) (2020), National position of Brazil (2021) (2021), National position of Canada (2022) (2022), National position of the People's Republic of China (2021) (2021), National position of Costa Rica (2023) (2023), National position of the Czech Republic (2020) (2020), National position of Denmark (2023) (2023), National position of Estonia (2019) (2019), National position of Estonia (2021) (2021), National position of Finland (2020) (2020), National position of France (2019) (2019), National position of Germany (2021) (2021), National position of Iran (2020) (2020), National position of Ireland (2023) (2023), National position of Israel (2020) (2020), National position of the Italian Republic (2021) (2021), National position of Japan (2021) (2021), National position of Kenya (2021) (2021), National position of the Netherlands (2019) (2019), National position of New Zealand (2020) (2020), National position of Norway (2021) (2021), National position of Pakistan (2023) (2023), National position of the Republic of Poland (2022) (2022), National position of Romania (2021) (2021), National position of Singapore (2021) (2021), National position of the Kingdom of Sweden (2022) (2022), National position of Switzerland (2021) (2021), National position of the United Kingdom (2018) (2018), National position of the United Kingdom (2021) (2021), National position of the United Kingdom (2022) (2022), National position of the United States of America (2012) (2012), National position of the United States of America (2016) (2016), National position of the United States of America (2020) (2020), National position of the United States of America (2021) (2021).

[L3] The dissemination of 'alternative facts' (incident 1) does not constitute a violation of sovereignty of State A, as these materials are mere propaganda, which does not interfere with inherently governmental functions (see option 4 above),[58] nor does it runs afoul of the other options. Moreover, such propaganda is likely within the scope of the right to freedom of opinion and expression guaranteed under international human rights law.

[L4] The exfiltration of the emails (incident 2), could amount to a violation of State A's sovereignty, if State B obtained them through a cyber operation conducted by its agents present in State A's territory (see option 1 above). The publication of the emails on a readily-accessible website itself does not violate State A's sovereignty.

[L5] The publication of the advertisements (incident 3) does not constitute a violation of State A's sovereignty, according to the above options.

[L6] The DDoS and defacement of the website of the electoral commission (incidents 4a-4b) could amount to an interference with data or services that are necessary for the exercise of inherently governmental functions[59] (see option 4 above); if the website was essential to the conduct of the elections (for instance, if State A allows for online voting), then it was rendered inoperable and the result of the elections could have been affected (for instance, some voters could not cast their vote). Alternatively, if the loss of functionality is more serious or permanent, option 3 above could also apply.

[L7] The tampering with the electronic ballot system is a clear interference with inherently governmental functions (see option 4 above) and hence a violation of State A's sovereignty.

# Incident Violation of sovereignty?
1 Dissemination of ‘alternative facts’ NO
2 Leaking a candidate’s campaign team emails (or rather obtaining them for that purpose). MAYBE, depending on how exactly the e-mails were obtained
3 Publishing advertisements NO
4a DDoSing the website of the electoral commission MAYBE (interference with ‘inherently governmental functions’), MAYBE NOT (is the website essential to the elections?)
4b Defacing the website of the electoral commission MAYBE (interference with ‘inherently governmental functions’), MAYBE NOT (is the website essential to the elections? Was it rendered inoperable?)
5 Tampering with the electronic ballot system YES (interference with ‘inherently governmental functions’)

Prohibition of intervention[edit | edit source]

Prohibition of intervention
The obligation of non-intervention, a norm of customary international law,[60] prohibits States from intervening coercively in the internal or external affairs of other States. Prohibited intervention was authoritatively defined by the International Court of Justice in the judgment on the merits in the 1986 Nicaragua v United States case:
A prohibited intervention must […] be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones.[61]
In order for an act, including a cyber operation,[62] to qualify as a prohibited intervention, it must fulfil the following conditions:[63]
  1. The act must bear on those matters in which States may decide freely.[64] The spectrum of such issues is particularly broad and it includes both internal affairs (such as the “choice of a political, economic, social, and cultural system”[61] or the conduct of national elections[65]), and external affairs (“formulation of foreign policy”;[61] or “recognition of states and membership of international organisations”[66])—the so-called domaine réservé of States.[67] The content of the domaine réservé is determined by the scope and nature of the State's international legal obligations.
  2. The act must be coercive in nature. There is no generally accepted definition of “coercion” in international law. In this respect, two main approaches have emerged in the cyber context:[68]
    1. Under the first approach, an act is coercive if it is specifically designed to compel the victim State to change its behaviour with respect to a matter within its domaine reservé.[69] Under this approach, the “key is that the coercive act must have the potential for compelling the target State to engage in an action that it would otherwise not take (or refrain from taking an action it would otherwise take)”.[70]
    2. Under the second approach giving meaning to “coercion”, it is sufficient for an act to effectively deprive the target State of its ability to control or govern matters within its domaine reservé.[71] This latter approach distinguishes itself from the former by accepting that mere deprivation of the target State’s control over a protected matter, without actually or potentially compelling that State to change its behaviour, may constitute intervention.[72]
    Under both approaches, however, merely influencing the target State by persuasion or propaganda or causing a nuisance without any particular goal is insufficient to qualify as coercion.[73] The element of coercion also entails the requirement of intent.[74]

    While coercion is evident in the case of an intervention involving the use of force, ‘either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State’, as affirmed by the ICJ,[75] it is less clear with respect to non-forcible forms of interference.[76] Some States support the approach that intervention may take various forms, such as economic and political coercion.[77] One example that has been reiterated in several States’ positions, including Australia,[78] Brazil,[79] Canada,[80] Germany,[81] Israel,[82] New Zealand,[83] Norway,[84] Singapore,[85] the United Kingdom[86] and the United States,[87] is the case of cyber operations by a State interfering with another state’s ability to hold an election or manipulating the election results. Many States have affirmed that the assessment has to be done on a case-by-case basis.[88]

    Both potential and actual effects are considered to be relevant when assessing the coercion element.[89]

  3. Finally, there has to be a causal nexus between the coercive act and the effect on the internal or external affairs of the target State.[90]
  4. The prohibition of intervention applies between States, and thus it is not applicable to the activities of non-State groups, unless their conduct can be attributed to a State under the rules on attribution under international law.[91]

Publicly available national positions that address this issue include: Common position of the African Union (2024) (2024), National position of Australia (2020) (2020), National position of Brazil (2021) (2021), National position of Canada (2022) (2022), National position of Costa Rica (2023) (2023), National position of the People's Republic of China (2021) (2021), National position of Denmark (2023) (2023), National position of Estonia (2021) (2021), National position of France (2019) (2019), National position of Germany (2021) (2021), National position of Iran (2020) (2020), National position of Ireland (2023) (2023), National position of Israel (2020) (2020), National position of the Italian Republic (2021) (2021), National position of Japan (2021) (2021), National position of the Netherlands (2019) (2019), National position of New Zealand (2020) (2020), National position of Norway (2021) (2021), National position of Pakistan (2023) (2023), National position of the Republic of Poland (2022) (2022), National position of Romania (2021) (2021), National position of Singapore (2021) (2021), National position of the Kingdom of Sweden (2022) (2022), National position of Switzerland (2021) (2021), National position of the United Kingdom (2018) (2018), National position of the United Kingdom (2021) (2021), National position of the United Kingdom (2022) (2022), National position of the United States of America (2016) (2016), National position of the United States of America (2020) (2020), National position of the United States of America (2021) (2021).

[L8] In the present scenario, the conduct that resulted in the manipulation of the election results (incident 5) would likely be considered as coercive. This is because the resulting effect is to deprive State A of the ability to choose its political representatives on the basis of the free expression of the will of the electorate. This analysis is also confirmed by a growing consensus among States that altering or manipulating election results abroad could constitute a violation of non-intervention.[92] By contrast, influence operations targeted against the electorate in State A (incidents 1–3) would likely not reach the level of coercion and, as such, would not amount to prohibited intervention.[93]

[L9] Every breach of the prohibition of non-intervention constitutes a violation of sovereignty and an internationally wrongful act if attributable to a State, and can justify a response from the target State according to the law of State responsibility, such as countermeasures, if further conditions are met.

Espionage[edit | edit source]

Peacetime cyber espionage
Peacetime espionage has been traditionally considered as unregulated by international law. This is also reflected in the Tallinn Manual 2.0, which posits that ‘[a]lthough peacetime cyber espionage by States does not per se violate international law, the method by which it is carried out might do so.’[94]

However, the methods of peacetime cyber espionage are varied and the legal consensus is almost non-existent with regard to cyber operations below the threshold of use of force or armed attack.

It must be noted that although cyber espionage operations are generally not illegal from the perspective of international law, they are usually prohibited according to the domestic law of the target State. Moreover, the acting State’s authorities will also typically be subject to specific domestic law prescriptions pertaining to the conduct of foreign intelligence operations.

Conversely, the mere fact that an operation is a cyber espionage operation does not make it legal in international law, according to a majority of the experts drafting Tallinn Manual 2.0.[95] According to a minority of the experts, espionage creates an exception for certain otherwise illegal cyber operations.[96]

Publicly available national positions that address this issue include: National position of the United States of America (2020) (2020), National position of the United States of America (2021) (2021).

[L10] With regard to incident 2 from the case at hand (obtaining and publishing private emails among individuals on a candidate’s campaign team), there are several options by which the cyber espionage operation can be in breach of international law. For instance, the operation can be interfering with individual human rights according to international law, such as the right to privacy; in that case, the State launching the operation must have a legal ground, legitimate justification, and it must be necessary, otherwise it will be in violation of international law.  Another possible violation of international law would be to obtain the emails pursuant to a ‘close access’ operation, i.e. by physically sending individuals to the territory of the target State without its consent and then directing them in the operation in question by utilizing their proximity, such as by downloading emails from a server onto a portable device.

[L11] With regard to incident 5, a cyber espionage operation probably preceded the actual sabotage of the electronic ballot system; if this is the case, then a more academic than practical question may be raised about the legality of the cyber espionage operation. Most of the Tallinn Manual 2.0 Experts would consider such a cyber espionage operation as an integral part of the operation to sabotage the electronic ballot system as usurpation of inherently governmental functions (and/or harm to critical infrastructure) , and hence illegal in itself as a violation of sovereignty or prohibited intervention; however, a few of the Experts would dissent from such a view.

Checklist[edit | edit source]

  • Sovereignty:
    • What is the position of the analyst / interlocutor on whether sovereignty is a standalone primary rule of international law?
    • Were any individuals associated with an outside State physically present in the domestic State’s territory without the latter’s consent?
    • Did the operation occasion a loss of functionality of cyber infrastructure or critical infrastructure?
    • Did the operation interfere with or usurp inherently governmental functions of the domestic State another State?
  • Prohibition of intervention:
    • Did the operation influence any of those matters in which States are allowed to decide freely?
    • Did the operation amount to a coercive act against the victim State?
  • Peacetime cyber espionage:
    • Did the operation clearly constitute espionage, or was it better characterized as cyber reconnaissance or information-gathering?
    • Did the operation involve ‘close access’, i.e. the physical sending of individuals to the territory of the target State without its consent?
  • International human rights law:
    • Did the operation interfere with individual or group rights guaranteed under international human rights law? If so, did it have a legitimate justification under that body of law?

Appendixes[edit | edit source]

See also[edit | edit source]

Notes and references[edit | edit source]

  1. Island of Palmas (Neth. v. U.S.), 2 RIAA 829, 838 (Perm. Ct. Arb. 1928).
  2. UNGA Res 71/237 (30 December 2015) UN Doc A/RES/20/237.
  3. African Union Peace and Security Council, "Common African Position on the Application of International Law to the Use of Information and Communication Technologies in Cyberspace" (29 January 2024).
  4. Council of the European Union,"Council Conclusions on the Joint Communication to the European Parliament and the Council: Resilience, Deterrence and Defence: Building strong cybersecurity for the EU" (Council conclusions, 20 November 2017).
  5. North Atlantic Treaty Organization, 'Wales Summit Declaration' (issued by the Head of State and Government participating in the meeting of the North Atlantic Council in Wales (5 September 2015) para 72.
  6. Organization for Security and Cooperation in Europe, Decision No. 1202, OSCE Confidence-Building Measures to Reduce the Risks of Conflict Stemming from the Use of Information and Communication Technologies (Permanent Council, 10 March 2016) PC.DEC/1202.
  7. See UNGA, Report of the Group of Governmental Experts on Developments in the Field of Information andTelecommunications in the Context of International Security, UN Doc A/68/98 (24 June 2013) para 20; UNGA, Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security, A/70/174 (22 July 2015) paras 27, 28(b); UNGA, Report of the Group of Governmental Experts on Advancing Responsible State Behaviour in Cyberspace in the Context of International Security, A/76/135 (14 July 2021) paras 70, 71(b).
  8. Michael N Schmitt, 'Virtual Disenfranchisement: Cyber Election Meddling in the Grey Zones of International Law' (2018) 19 ChiJIntlL 30,40; Tallinn Manual 2.0, rule 4 (‘A State must not conduct cyber operations that violate the sovereignty of another State’), and commentary to rule 4, para 2 (‘States shoulder an obligation to respect the sovereignty of other States as a matter of international law’).
  9. 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’.
  10. Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 18.
  11. Government of Canada, International Law applicable in cyberspace (April 2022) para 13.
  12. Czech Republic, Statement by Mr. Richard Kadlčák, Special Envoy for Cyberspace, 2nd substantive session of the Open-ended Working Group on developments in the field of information and telecommunications in the context of international security (11 February 2020), stating that ‘[t]he Czech Republic concurs with those considering the principle of sovereignty as an independent right and the respect to sovereignty as an independent obligation.’
  13. Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 25.
  14. Finland, ‘International law and cyberspace: Finland’s national positions’ (15 October 2020), 3, stating that ‘Finland sees sovereignty as a primary rule of international law, a breach of which amounts to an internationally wrongful act and triggers State responsibility. This rule is fully applicable in cyberspace.’
  15. French Ministry of the Armies, ‘International Law Applied to Operations in Cyberspace’, 9 September 2019, stating that ‘Any unauthorised penetration by a State of French systems or any production of effects on French territory via a digital vector may constitute, at the least, a breach of sovereignty’.
  16. Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), p. 3, noting that ‘Germany agrees with the view that cyber operations attributable to States which violate the sovereignty of another State are contrary to international law’.
  17. Iran, ‘Declaration of General Staff of the Armed Forces of the Islamic Republic of Iran Regarding International Law Applicable to the Cyberspace’ (July 2020), para 4 (‘Any utilization of cyberspace if and when involves unlawful intrusion to the (public or private) cyber structures which is under the control of another state, maybe constituted as the violation of the sovereignty of the targeted state.’).
  18. Italian Ministry for Foreign Affairs and International Cooperation, ‘Italian position paper on “International law and cyberspace”’ (2021) 4.
  19. Ministry of Foreign Affairs of Japan, ‘Basic Position of the Government of Japan on International Law Applicable to Cyber Operations’ (16 June 2021) 3.
  20. Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019), stating that ‘countries may not conduct cyber operations that violate the sovereignty of another country’.
  21. New Zealand Foreign Affairs and Trade, ‘The Application of International Law to State Activity in Cyberspace’ (1 December 2020) 2.
  22. Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 67.
  23. Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 76.
  24. Government Offices of Sweden, ‘Position Paper on the Application of International Law in Cyberspace’ (July 2022) 2.
  25. Gary P. Corn and Robert Taylor, ‘Sovereignty in the Age of Cyber’ (2017) 111 AJIL Unbound 207, 208 (arguing that sovereignty is ‘a principle of international law that guides state interactions’).
  26. Jeremy Wright, ‘Cyber and International Law in the 21st Century’ (23 May 2018) (stating that he was ‘not persuaded that we can currently extrapolate from that general principle a specific rule or additional prohibition for cyber activity beyond that of a prohibited intervention. The UK Government’s position is therefore that there is no such rule as a matter of current international law’). The approach has been maintained in UK’s 2021 and 2022 national positions.
  27. Paul C. Ney, DOD General Counsel Remarks at U.S. Cyber Command Legal Conference, 2 March 2020, arguing that ‘the Department believes there is not sufficiently widespread and consistent State practice resulting from a sense of legal obligation to conclude that customary international law generally prohibits such non-consensual cyber operations in another State’s territory’.
  28. Cf. James Crawford, Brownlie's Principles of Public International Law (OUP 2012) 448.
  29. Tallinn Manual 2.0, rule 2.
  30. Sovereignty over cyber infrastructure derives from the traditional concept of sovereignty, independent of the use of cyberspace. See Wolff Heintschel von Heinegg, 'Territorial Sovereignty and Neutrality in Cyberspace' (2013) 89 Int’l L. Stud. 123 (noting that '[t]erritorial sovereignty [..] implies that, subject to applicable customary or conventional rules of international law, the State alone is entitled to exercise jurisdiction, especially by subjecting objects and persons within its territory to domestic legislation and to enforce these rules'). This has been endorsed by several States, including China, the Czech Republic, Estonia, Finland, France, Germany, Israel, Italy, the Netherlands, Norway, Sweden, Switzerland and the United States.
  31. Tallinn Manual 2.0., commentary to rule 4, para 5. See also the national positions of Norway, Sweden and Switzerland.
  32. Tallinn Manual 2.0., rule 3; see also the national positions of the Czech Republic, the Netherlands and Norway.
  33. UN GA Res 2625 (XXV) (24 October 1970) (Friendly Relations Declaration), preamble (emphasizing “that the purposes of the United Nations can be implemented only if States enjoy sovereign equality and comply fully with the requirements of this principle in their international relations”); Tallinn Manual 2.0, rule 4.
  34. Some States have referred to the nature of the operation, its consequences, and/or the scale or severity of the effects, as the relevant factors that should be assessed. See e.g. the national positions of Canada, Finland, Germany, New Zealand, Norway, Sweden and Switzerland. New Zealand also highlighted the nature of the target in this regard.
  35. Some States have highlighted the requirement of certain level beyond “negligible” or “de minimis” effects, such as Canada and Germany. See similarly, New Zealand’s national position. For further discussion on the required threshold, see Michael N Schmitt and Liis Vihul, ‘Respect for Sovereignty in Cyberspace’ (2017) 95 Texas Law Review 1639; Harriet Moynihan, ‘The Application of International Law to State Cyberattacks. Sovereignty and Non-Intervention’, Chatham House (2 December 2019) paras 60 and ff.
  36. Michael Schmitt, ‘Sovereignty, Intervention, and Autonomous Cyber Capabilities’ (2020) 96 International Law Studies 549.
  37. Tallinn Manual 2.0, commentary to rule 4, para 5 and 12.
  38. See e.g. the national position of Canada, Finland, New Zealand, Norway, Sweden and Switzerland.
  39. See, eg, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) (Judgment) [2015] ICJ Rep 665, 704–05, paras 97–99 (holding that the presence of Nicaragua’s military personnel in the territory under Costa Rica’s sovereignty amounted to a violation of Costa Rica’s territorial sovereignty); see also Tallinn Manual 2.0, commentary to rule 4, para 6.
  40. Tallinn Manual 2.0, commentary to rule 4, para 7; commentary to rule 32, para 9. See also, the national positions of Canada and New Zealand.
  41. Tallinn Manual 2.0, commentary to rule 4, para 11.
  42. Tallinn Manual 2.0, commentary to rule 4, para 12.
  43. Tallinn Manual 2.0, commentary to rule 4, para 13. Additionally, there was agreement between the experts that ‘a cyber operation necessitating repair or replacement of physical components of cyber infrastructure amounts to a violation because such consequences are akin to physical damage or injury’. See also in this respect Canada’s national position.
  44. Tallinn Manual 2.0, commentary to rule 4, para 14.
  45. Tallinn Manual 2.0, commentary to rule 4, para 15.
  46. Tallinn Manual 2.0, commentary to rule 4, para 16. Other examples may include law enforcement, taxation, foreign relations and national defense. See e.g. the national positions of Canada, Germany and Norway. See also Michael Schmitt, ‘Sovereignty, Intervention, and Autonomous Cyber Capabilities’ (2020) 96 International Law Studies 549, 557.
  47. Tallinn Manual 2.0, commentary to rule 4, para 18.
  48. Government of Canada, International Law applicable in cyberspace (April 2022) para 13.
  49. Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), p. 4.
  50. Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019), p. 3.
  51. Richard Kadlčák, Statement of the Special Envoy for Cyberspace and Director of Cybersecurity Department of the Czech Republic (11 February 2020) 3.
  52. Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 68.
  53. Government Offices of Sweden, Position Paper on the Application of International Law in Cyberspace (July 2022) 2
  54. Federal Department of Foreign Affairs, ‘Switzerland's position paper on the application of international law in cyberspace’ (May 2021) 3.
  55. Ministry of Defense of France, 'International Law Applied to Operations in Cyberspace' (9 September 2019) 6.
  56. Declaration of General Staff of the Armed Forces of the Islamic Republic of Iran Regarding International Law Applicable to the Cyberspace (August 2020) para 4 (‘Any utilization of cyberspace if and when involves unlawful intrusion to the (public or private) cyber structures which is under the control of another state, maybe constituted as the violation of the sovereignty of the targeted state’).
  57. In favour: see, e.g., Theodore Christakis, ‘The ICJ Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?’ (2011) 24 LJIL 73, 84; Marcelo Kohen, ‘The Court’s Contribution to Determining the Content of Fundamental Principles of International Law’ in Giorgio Gaja and Jenny Grote Stoutenburg (eds), Enhancing the Rule of Law through the International Court of Justice (Brill 2012) 145. Against: see, eg, Tallinn Manual 2.0, commentary to rule 4, para 3; Romania’s national position (‘If there is not a State or State endorsed operation one can speak of a criminal act, which should be investigated and punished in accordance with the criminal law of the State concerned’).
  58. Tallinn Manual 2.0, commentary to rule 4, para 29.
  59. Tallinn Manual 2.0., commentary to rule 4, para 16.
  60. The customary nature has been highlighted by several States, including Australia, Brazil, Germany, Iran, Norway, Sweden, the United Kingdom and the United States.
  61. 61.0 61.1 61.2 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14 [205].
  62. Many States, including Australia, Brazil, Canada, Estonia, Israel, Italy, Japan, New Zealand, Norway, Singapore, Sweden, Switzerland, the United Kingdom and the United States, have acknowledged that the prohibition of intervention applies to cyber operations. This has been also highlighted by the UN Group of Governmental Experts. See UNGA, Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (22 July 2015) A/70/174, para 28(b); UNGA, Report of the Group of Governmental Experts on Advancing Responsible State Behaviour in Cyberspace in the Context of International Security (14 July 2021) A/76/135, para 71(c).
  63. Many States agree that intervention ‘involves “coercion” in relation to a State’s domaine réservé’. See Ori Pomson, 'The Prohibition on Intervention Under International Law and Cyber Operations' (2022) 99 International Law Studies 180, 217. In this regard, see the national positions of Australia, Brazil, Canada, Estonia, Germany, Israel, Italy, The Netherlands, New Zealand, Norway, Romania, Singapore, Sweden, Switzerland, the United Kingdom and the United States.
  64. Militarv and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Merits, Judgment. I.C.J. Reports 1986, 14 [241].
  65. Dutch Minister of Foreign Affairs, ‘Letter to the President of the House of Representatives on the International Legal Order in Cyberspace – Appendix: International Law in Cyberspace’ (5 July 2019), 3; Finland, ‘International law and cyberspace: Finland’s national positions’ (15 October 2020), 3; Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), 5.
  66. Dutch Minister of Foreign Affairs, ‘Letter to the President of the House of Representatives on the International Legal Order in Cyberspace – Appendix: International Law in Cyberspace’ (5 July 2019), 3.
  67. See, for example, Katja Ziegler, “Domaine Réservé”, in Rudiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2008) (updated April 2013) (defining the domaine réservé as those “areas where States are free from international obligations and regulation”); Nationality Decrees Issued in Tunis and Morocco (French Zone) on November 8th, 1921 (Great Britain v France) Advisory Opinion, (1923) PCIJ Series B no 4, 7th February 1923 [24].
  68. See also Harriet Moynihan, ‘The Vital Role of International Law in the Framework for Responsible State Behaviour in Cyberspace’ (2020) 6(3) Journal of Cyber Policy 394, 400-1.
  69. See, e.g., Dutch Minister of Foreign Affairs, ‘Letter to the President of the House of Representatives on the International Legal Order in Cyberspace – Appendix: International Law in Cyberspace’ (5 July 2019) 3, defining coercion as ‘compelling a state to take a course of action (whether an act or an omission) that it would not otherwise voluntarily pursue’ and noting that ‘[t]he goal of the intervention must be to effect change in the behaviour of the target state’; Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), 5, defining coercion as a situation in which a State’s ‘will is manifestly bent by the foreign State’s conduct’ and noting that ‘the acting State must intend to intervene in the internal affairs of the target State’; see further, the national positions of Italy, Switzerland, Estonia, Norway and Romania; see also Tallinn Manual 2.0, commentary to rule 66, para 19 (‘The majority of Experts was of the view that the coercive effort must be designed to influence outcomes in, or conduct with respect to, a matter reserved to a target State.’).
  70. Tallinn Manual 2.0, commentary to rule 66, para 21. See also Dutch Minister of Foreign Affairs, ‘Letter to the President of the House of Representatives on the International Legal Order in Cyberspace – Appendix: International Law in Cyberspace’ (5 July 2019) 3.
  71. See, e.g., Australia, ‘Supplement to Australia’s Position on the Application of International Law to State Conduct in Cyberspace’ (2019) 4 (‘A prohibited intervention is one that interferes by coercive means (in the sense that they effectively deprive another state of the ability to control, decide upon or govern matters of an inherently sovereign nature), either directly or indirectly, in matters that a state is permitted by the principle of state sovereignty to decide freely.’); New Zealand, ‘The Application of International Law to State Activity in Cyberspace’ (1 December 2020), para 9(b) (stating that a State cyber activity is coercive if ‘there is an intention to deprive the target state of control over matters falling within the scope of its inherently sovereign functions’); United Kingdom Attorney General’s Office Suella Braverman: ‘International Law in Future Frontiers’ (19 May 2022). See also Tallinn Manual 2.0, commentary to rule 66, para 19 (‘A few Experts took the position that to be coercive it is enough that an act has the effect of depriving the State of control over the matter in question.’).
  72. Harriet Moynihan, ‘The Vital Role of International Law in the Framework for Responsible State Behaviour in Cyberspace’ (2020) 6(3) Journal of Cyber Policy 394, 403; see also Sean Watts, ‘Low-Intensity Cyber Operations and the Principle of Non-Intervention’ in Jens D Ohlin, Kevin Govern and Claire Finkelstein, Cyber War: Law and Ethics for Virtual Conflicts (Oxford University Press 2015) 256 and ff.
  73. Tallinn Manual 2.0, commentary to rule 66, para 21. See also the national positions of Canada, Germany and Norway.
  74. Tallinn Manual 2.0, commentary to rule 66, paras 19 and 27. See also the national positions of Germany, New Zealand and Sweden.
  75. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Merits, Judgment. I.C.J. Reports 1986, 14 [205]. See also national position of Canada, Germany and The Netherlands.
  76. See Harriet Moynihan, The Application of International Law to State Cyberattacks Sovereignty and Non-Intervention (Chatham House, 2 December 2019) para 82.
  77. See Ori Pomson, 'The Prohibition on Intervention Under International Law and Cyber Operations' (2022) 99 International Law Studies 180, 212. While some States have stressed that economic coercion can still be sufficient for a breach of the rule of non-intervention, others remained ambiguous in their positions. States have referred to different examples that could be classified, depending on the circumstances of the case, under the prohibition of intervention. See the national positions of Australia (‘intervention in the fundamental operation of Parliament, or in the stability of States’ financial systems’), Canada (‘a malicious cyber activity that disrupts the functioning of a major gas pipeline, compelling the affected State to change its position in bilateral negotiations surrounding an international energy accord’), Italy (‘influence activities aimed, for instance, at undermining a State’s ability to safeguard public health during a pandemic’), New Zealand (‘a prolonged and coordinated cyber disinformation operation that significantly undermines a state’s public health efforts during a pandemic; and cyber activity deliberately causing significant damage to, or loss of functionality in, a state’s critical infrastructure, including – for example – its healthcare system, financial system, or its electricity or telecommunications network’), Norway (‘a cyber operation deliberately causing a temporary shutdown of the target State’s critical infrastructure, such as the power supply or TV, radio, Internet or other telecommunications infrastructure in order to compel that State to take a course of action’), Singapore (‘cyber-attacks against our infrastructure in an attempt to coerce our government to take or forbear a certain course of action on a matter ordinarily within its sovereign prerogative’), Switzerland (‘This is particularly true of economic coercion, which could be the case if a company that is systemically relevant was paralysed through a cyber operation’), the United Kingdom (‘intervention in the fundamental operation of Parliament, or in the stability of our financial system’; ‘to undermine the stability of another State’s financial system or to target the essential medical services of another State’; ‘Covert cyber operations by a foreign State which coercively restrict or prevent the provision of essential medical services or essential energy supplies […]disruption of systems controlling emergency medical transport (e.g., telephone dispatchers); causing hospital computer systems to cease functioning; disruption of supply chains for essential medicines and vaccines; preventing the supply of power to housing, healthcare, education, civil administration and banking facilities and infrastructure; causing the energy supply chain to stop functioning at national level through damage or prevention of access to pipelines, interchanges, and depots; or *preventing the operation of power generation infrastructure. Turning to economic stability, covert cyber operations by a foreign State that coercively interfere with a State’s freedom to manage its domestic economy, or to ensure provision of domestic financial services crucial to the State’s financial system, would breach the rule on non-intervention […] disruption to the networks controlling a State’s fundamental ability to conduct monetary policy or to raise and distribute revenue, for instance through taxation. Or disruption to systems which support lending, saving and insurance across the economy’), and the United States (‘a cyber operation that attempts to interfere coercively with a State’s ability to protect the health of its population –for example, through vaccine research or running cyber-controlled ventilators within its territories during a pandemic’).
  78. Australian Government, Australia's position on how international law applies to State conduct in cyberspace (2020).
  79. Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136, (August 2021) 19.
  80. Government of Canada, International Law applicable in cyberspace (April 2022)
  81. Federal Government of Germany, ‘On the Application of International Law in Cyberspace’, Position Paper (March 2021) 5-6.
  82. Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations (8 December 2020).
  83. New Zealand Foreign Affairs and Trade, The Application of International Law to State Activity in Cyberspace (1 December 2020) 2.
  84. Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 68-69.
  85. Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 83.
  86. Attorney General Jeremy Wright:Cyber and International Law in the 21st Century (23 May 2018); United Kingdom Foreign, Commonwealth & Development Office, Application of international law to states’ conduct in cyberspace: UK statement (3 June 2021); Attorney General Suella Braverman: International Law in Future Frontiers, 19 May 2022.
  87. Brian J Egan, International Law and Stability in Cyberspace (10 November 2016) 13-14; Hon Paul C Ney, Jr., DOD General Counsel Remarks at U.S. Cyber Command Legal Conference (2 March, 2020); Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 140.
  88. See the national positions of Canada, Romania, Sweden and Switzerland.
  89. Harriet Moynihan, The Application of International Law to State Cyberattacks Sovereignty and Non-Intervention (Chatham House, 2 December 2019) para 101. Further, the international group of experts involved in the Tallinn Manual 2.0. considered that ‘the fact that a coercive cyber operation fails to produce the desired outcome has no bearing on whether [the prohibition of intervention] has been breached’. Tallinn Manual 2.0., commentary to rule 66, para 29.
  90. Tallinn Manual 2.0, commentary to rule 66, para 24 (the exact nature of the causal nexus was not agreed on).
  91. Harriet Moynihan, The Application of International Law to State Cyberattacks Sovereignty and Non-Intervention (Chatham House, 2 December 2019) para 79. See also the national positions of The Netherlands (‘The non-intervention principle, like the sovereignty principle from which it stems, applies only between states’), Sweden (‘The prohibition of intervention is applicable between States and does not apply directly to non-state actors’), and the 2022 position of the United Kingdom (‘To be clear, State direction or control of non-State actors who undertake cyber operations of the kind I have described today would also represent unlawful conduct by that State, in line with international law on State responsibility’).
  92. See the national positions of Australia, Canada, Germany, Israel, New Zealand, Norway, the United Kingdom, the United States, and similarly Brazil.
  93. However, it is worth noting that a minority of States such as Norway, stated that ‘carrying out cyber operations with the intent of altering election results in another State, for example by […] unduly influencing public opinion through the dissemination of confidential information obtained through cyber operations (‘hack and leak’), would be in violation of the prohibition of intervention’. See similarly, the national position of Iran (‘measures like cyber manipulation of elections or engineering the public opinions on the eve of the elections may be constituted of the examples of gross intervention […] sending mass messages in a widespread manner to the voters to affect the result of the elections in other states is also considered as the forbidden intervention’). See also Harriet Moynihan, The Application of International Law to State Cyberattacks Sovereignty and Non-Intervention (Chatham House, 2 December 2019) paras 128-130, highlighting the fact that ‘Coercive efforts to manipulate voting behaviour could also amount to intervention in another state’s affairs, on the basis that the attempt to manipulate the will of the people also amounts to an attempt to undermine the target state’s sovereign will over its choice of political system […] The covert element of disinformation contributes to the fact that the target state is unable to hold elections that are “free and fair” […] The deceptive nature of the cyber activity distinguishes it from a mere influence operation’.
  94. Tallinn Manual 2.0, rule 32.
  95. Tallinn Manual 2.0, rule 32 and commentary to rule 32, para 6.
  96. Id.; Ashley Deeks, 'An International Legal Framework for Surveillance' (2015) 55 VA.J.INT’LL. 291, 302-3.

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