Scenario 01: Election interference

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Electronic voting machine by Premier Election Solutions used in all Brazilian elections and plebiscites. Photo by Agência Brasil.

In the run up to a major election in State A, a series of cyber incidents traceable to State B occur. The incidents influence, to a varying degree, the electoral campaign, the administration of the elections, as well as the election results. Analysis in this scenario considers whether any of the specific incidents may constitute violations of several rules of international law, including 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

Keywords

Election interference, hybrid threats, sovereignty, non-State actors

Facts

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

In the weeks prior to the election, a series of incidents takes place, including:

  • 1) An upsurge in the publication of unverifiable information on specific candidates, particularly in media outlets known for the dissemination of “alternative facts” and for promoting views close to those held by the regime in State B. Social networks get busy with discussions on candidates’ profiles, with posts often coming from accounts that have either been recently established or cannot be verifiably linked to a real person.
  • 2) A trove of emails purportedly coming from a candidate’s campaign team is leaked on the internet.
  • 3) Advertisements compromising the candidate’s credibility are published in print and online media while the entity who paid for them is either clearly artificial or known to support an electoral opponent or the regime in State B.

During the election itself:

  • 4a) The website of the 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 website is subject to a defacement that falsely claims that a specific candidate is leading the polls. That information is taken over by foreign media outlets that are not supportive of the other candidate(s).

After the election:

  • 5) State A uses an electronic ballot counting system. 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 election results were untrue.

Examples

NB: Links in this section will go to separate pages for each of these incidents within the toolkit (for demonstration purposes only, they now link to Wikipedia pages on those topics).

Legal analysis

Technical attribution is a prerequisite.[1] Provided that technical and other intelligence, when contextualised, can link the events to a State actor or actors within a State actor’s control/sphere of influence, the following legal issues may need to be addressed. (For legal attribution, refer to General matters 001: Attribution.)

Obligation to respect the sovereignty of other States

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.[2]

Multiple declarations by the UN,[3] the African Union,[4] the European Union,[5] NATO,[6] OSCE,[7] and individual States have confirmed that international law applies in cyberspace. Accordingly, so too does the principle of sovereignty.[8] 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.[9] It has also been adopted by several States including Austria,[10] Brazil, [11] Canada,[12] the Czech Republic,[13] Estonia,[14] Finland,[15] France,[16] Germany,[17] Iran,[18] Italy,[19] Japan,[20] the Netherlands,[21] New Zealand,[22] Norway,[23] Romania[24] and Sweden.[25]
  • 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.[26] This view has been adopted by one State, the United Kingdom,[27] and has been partially endorsed by the U.S. Department of Defense General Counsel.[28] 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.[29] 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.”[30][31] This encompasses both private and public infrastructure.[32] The external component entails that States are “free to conduct cyber activities in [their] international relations”, subject to their international law obligations.[33]

As a general rule, each State must respect the sovereignty of other States.[34]However, within the cyber realm – and particularly regarding remote cyber operations – there is still no agreement on the criteria[35] and the required threshold[36] to qualify an operation as a sovereignty violation.[37] 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.[38] Accordingly, the assessment needs to be done on a case-by-case basis.[39]

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.[40] 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.[41]
  2. Causation of physical damage or injury by remote means;[42] again, “a few” Experts took the position that this is a relevant but not a determinative factor by itself.[43]
  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);[44] 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.[45]
  4. Interference with data or services that are necessary for the exercise of "inherently governmental functions";[46] although the Experts could not conclusively define the term "inherently governmental functions", they agreed that, for example, the conduct of elections would so qualify.[47]
  5. Usurpation of "inherently governmental functions", such as exercise of law enforcement functions in another State’s territory without justification.[48]

The Tallinn Manual’s view of what constitutes a violation of sovereignty has been expressly endorsed by several States including Canada,[49] Germany[50] and the Netherlands;[51] and followed to some extent by other States, such as the Czech Republic,[52] Norway,[53] Sweden[54] and Switzerland.[55] 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”;[56]similarly, Iran has argued that “unlawful intrusion to the (public or private) cyber structures” abroad may qualify as a breach of sovereignty.[57]

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.[58]

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 Austria (2024) (2024), 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 the Czech Republic (2024) (2024), 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).

In the case at hand, the incidents listed above can be qualified as follows:

# 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

The principle of non-intervention prohibits States from intervening 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 case Nicaragua v United States:

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. [59]

Two elements follow from this understanding. The first is that in order for an act (a term that is wide enough to include a cyber operation) to qualify as prohibited intervention, it must bear on those matters in which States are allowed to decide freely (the so-called domaine réservé of States).  As the ICJ ruling explains, the spectrum of such issues is particularly broad and it includes choices of political, economic, social, and cultural nature. The organization and conducting of domestic elections certainly counts among such choices, given that the result of the process is the appointment of the head of State or the composition of the parliament.

It is less clear whether the second element of prohibited intervention is met, which is that the act in question must be coercive in nature. There is no generally accepted definition of “coercion” in international law. However, as per the analysis in the Tallinn Manual 2.0, 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)”.  Therefore, whether this element is met depends on the specific circumstances of each case.

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.  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.

Attributing the conduct to a State different from State A is a necessary prerequisite for qualifying it as a breach of the prohibition of non-intervention. Non-State actors cannot violate sovereignty on their own. For further details, refer to General matters 001: Attribution.

Every breach of the prohibition of non-intervention constitutes a violation of sovereignty and an internationally wrongful act, and can justify a response from the target State according to the law of State responsibility, such as countermeasures, if further conditions are met. For further details, refer to General matters 002: Countermeasures.

Espionage

In general

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.’[60]

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.[61] According to a minority of the experts, espionage creates an exception for certain otherwise illegal cyber operations.[62]

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).

Economic cyber espionage

Economic cyber espionage
The United States has, already in its 2011 International Strategy for Cyberspace, declared that it “will take measures to identify and respond to [persistent theft of intellectual property, whether by criminals, foreign firms, or state actors working on their behalf,] to help build an international environment that recognizes such acts as unlawful and impermissible, and hold such actors accountable.”[63] The G20 countries reaffirmed in 2015 that “no country should conduct or support ICT-enabled theft of intellectual property, including trade secrets or other confidential business information, with the intent of providing competitive advantages to companies or commercial sectors.”[64] In September 2015, the US and China agreed on a similar commitment on a bilateral basis.[65]

Therefore, there is a push to curb the practice by developing a prohibition of such practice as a matter of international law.

However, according to the prevailing opinion, no such prohibition has crystallised in customary international law. In this regard, it is noteworthy that the 2015 UN GGE report does not mention economic cyber espionage among the applicable norms, rules, and principles of responsible State behaviour in cyberspace.[66] Several authors,[67] including experts of the Tallinn Manual 2.0,[68] consider that there is no distinction between economic cyber espionage and other forms of cyber espionage in general international law.[69] Additionally, no international consensus exists that agreements such as the WTO TRIPS[70] protect trade secrets against espionage conducted by a foreign state, and it is unclear whether the affected company can challenge the spying State in a domestic court or pursuant to a bilateral investment treaty, if there is one.[71]

Accordingly, such conduct is not subject to any general prohibition under extant international law.

National positions

United States (2020)

"For cyber operations that would not constitute a prohibited intervention or use-of-force, 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. This proposition is recognized in the Department’s adoption of the “defend forward” strategy: “We will defend forward to disrupt or halt malicious cyber activity at its source, including activity that falls below the level of armed conflict.” The Department’s commitment to defend forward including to counter foreign cyber activity targeting the United States—comports with our obligations under international law and our commitment to the rules-based international order.

The DoD OGC view, which we have applied in legal reviews of military cyber operations to date, shares similarities with the view expressed by the U.K. Government in 2018. We recognize that there are differences of opinion among States, which suggests that State practice and opinio juris are presently not settled on this issue. Indeed, many States’ public silence in the face of countless publicly known cyber intrusions into foreign networks precludes a conclusion that States have coalesced around a common view that there is an international prohibition against all such operations (regardless of whatever penalties may be imposed under domestic law).

Traditional espionage may also be a useful analogue to consider. Many of the techniques and even the objectives of intelligence and counterintelligence operations are similar to those used in cyber operations. Of course, most countries, including the United States, have domestic laws against espionage, but international law, in our view, does not prohibit espionage per se even when it involves some degree of physical or virtual intrusion into foreign territory. There is no anti-espionage treaty, and there are many concrete examples of States practicing it, indicating the absence of a customary international law norm against it. In examining a proposed military cyber operation, we may therefore consider the extent to which the operation resembles or amounts to the type of intelligence or counterintelligence activity for which there is no per se international legal prohibition.

Of course, as with domestic law considerations, establishing that a proposed cyber operation does not violate the prohibitions on the use of force and coercive intervention does not end the inquiry. These cyber operations are subject to a number of other legal and normative considerations."[72]

United States (2021)

"In certain circumstances, one State’s non-consensual cyber operation in another State’s territory, even if it falls below the threshold of a use of force or non-intervention, could also violate international law. However, a State’s remote cyber operations involving computers or other networked devices located on another State’s territory do not constitute a per see violation of international law. In other words, there is no absolute prohibition on such operations as a matter of international law. This is perhaps most clear where such activities in another State’s territory have no effects or de minimise effects. The very design of the Internet may lead to some encroachment on other sovereign jurisdictions."[73]

Appendixes

See also

Notes and references

  1. ↑ Cf. Yeager v Islamic Republic of Iran (1987) 17 Iran-US CTR 92, 101–02 (‘[I]n order to attribute an act to the State, it is necessary to identify with reasonable certainty the actors and their association with the State.’).
  2. ↑ Island of Palmas (Neth. v. U.S.), 2 RIAA 829, 838 (Perm. Ct. Arb. 1928).
  3. ↑ UNGA Res 71/237 (30 December 2015) UN Doc A/RES/20/237.
  4. ↑ 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).
  5. ↑ 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).
  6. ↑ 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.
  7. ↑ 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.
  8. ↑ 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).
  9. ↑ 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’).
  10. ↑ 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’.
  11. ↑ 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.
  12. ↑ Government of Canada, International Law applicable in cyberspace (April 2022) para 13.
  13. ↑ 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.’
  14. ↑ 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.
  15. ↑ 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.’
  16. ↑ 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’.
  17. ↑ 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’.
  18. ↑ 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.’).
  19. ↑ Italian Ministry for Foreign Affairs and International Cooperation, ‘Italian position paper on “International law and cyberspace”’ (2021) 4.
  20. ↑ Ministry of Foreign Affairs of Japan, ‘Basic Position of the Government of Japan on International Law Applicable to Cyber Operations’ (16 June 2021) 3.
  21. ↑ 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’.
  22. ↑ New Zealand Foreign Affairs and Trade, ‘The Application of International Law to State Activity in Cyberspace’ (1 December 2020) 2.
  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) 67.
  24. ↑ 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.
  25. ↑ Government Offices of Sweden, ‘Position Paper on the Application of International Law in Cyberspace’ (July 2022) 2.
  26. ↑ 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’).
  27. ↑ 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.
  28. ↑ 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’.
  29. ↑ Cf. James Crawford, Brownlie's Principles of Public International Law (OUP 2012) 448.
  30. ↑ Tallinn Manual 2.0, rule 2.
  31. ↑ 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.
  32. ↑ Tallinn Manual 2.0., commentary to rule 4, para 5. See also the national positions of Norway, Sweden and Switzerland.
  33. ↑ Tallinn Manual 2.0., rule 3; see also the national positions of the Czech Republic, the Netherlands and Norway.
  34. ↑ 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.
  35. ↑ 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.
  36. ↑ 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.
  37. ↑ Michael Schmitt, ‘Sovereignty, Intervention, and Autonomous Cyber Capabilities’ (2020) 96 International Law Studies 549.
  38. ↑ Tallinn Manual 2.0, commentary to rule 4, para 5 and 12.
  39. ↑ See e.g. the national position of Canada, Finland, New Zealand, Norway, Sweden and Switzerland.
  40. ↑ 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.
  41. ↑ 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.
  42. ↑ Tallinn Manual 2.0, commentary to rule 4, para 11.
  43. ↑ Tallinn Manual 2.0, commentary to rule 4, para 12.
  44. ↑ 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.
  45. ↑ Tallinn Manual 2.0, commentary to rule 4, para 14.
  46. ↑ Tallinn Manual 2.0, commentary to rule 4, para 15.
  47. ↑ 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.
  48. ↑ Tallinn Manual 2.0, commentary to rule 4, para 18.
  49. ↑ Government of Canada, International Law applicable in cyberspace (April 2022) para 13.
  50. ↑ Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), p. 4.
  51. ↑ Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019), p. 3.
  52. ↑ Richard Kadlčák, Statement of the Special Envoy for Cyberspace and Director of Cybersecurity Department of the Czech Republic (11 February 2020) 3.
  53. ↑ 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.
  54. ↑ Government Offices of Sweden, Position Paper on the Application of International Law in Cyberspace (July 2022) 2
  55. ↑ Federal Department of Foreign Affairs, ‘Switzerland's position paper on the application of international law in cyberspace’ (May 2021) 3.
  56. ↑ Ministry of Defense of France, 'International Law Applied to Operations in Cyberspace' (9 September 2019) 6.
  57. ↑ 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’).
  58. ↑ 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’).
  59. ↑ Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14, para. 205.
  60. ↑ Tallinn Manual 2.0, rule 32.
  61. ↑ Tallinn Manual 2.0, rule 32 and commentary to rule 32, para 6.
  62. ↑ Id.; Ashley Deeks, 'An International Legal Framework for Surveillance' (2015) 55 VA.J.INT’LL. 291, 302-3.
  63. ↑ President of the United States, ‘International Strategy for Cyberspace: Prosperity, Security, and Openness in a Networked World’ (2011).
  64. ↑ G20 Leaders’ Communiqué (15–16 November 2015), para 26; see also G7 Principles and Actions on Cyber (Annex to the Ise-Shima Declaration from 27 May 2016).
  65. ↑ See US, ‘FACT SHEET: President Xi Jinping’s State Visit to the United States’ (25 September 2015).
  66. ↑ 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.
  67. ↑ Catherine Lotrionte, ‘Countering State-Sponsored Cyber Economic Espionage Under International Law’ (2015) 40 N.C. J. INT'L L. & COM. REG. 443, 488-492; David Fidler, ‘Economic Cyber Espionage and International Law: Controversies Involving Government Acquisition of Trade Secrets through Cyber Technologies’ (2013) 17/10 ASIL Insights; Erica Häger & Carolina Dackö, ‘Economic Espionage: A Report by Mannheimer Swartling’ (2018).
  68. ↑ Tallinn Manual 2.0, rule 32, commentary 3.
  69. ↑ For an opposing view, see Russell Buchan, ‘The International Legal Regulation of State-Sponsored Cyber Espionage’ (2016) in International Cyber Norms: Legal, Policy & Industry Perspectives, Anna-Maria Osula and Henry Rõigas (Eds.), NATO CCD COE Publications, Tallinn 2016.
  70. ↑ Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C to the Agreement Establishing the World Trade Organization (signed on 15 April 1994 in Marrakesh), 1869 UNTS 299, 33 ILM 1197.
  71. ↑ Erika Häger & Carolina Dackö, ‘Economic Espionage: A Report by Mannheimer Swartling’ (2018), page 5: “Economic espionage, to the extent it qualifies as a violation of intellectual property rights, should arguably be treated as an act comparable to commercial activities, jure gestionis. A [S]tate would then not be able to claim state immunity for such acts and could thus instead face a normal trial in a domestic court.“
  72. ↑ Hon. Paul C. Ney, Jr., DOD General Counsel Remarks at U.S. Cyber Command Legal Conference, 2 March, 2020
  73. ↑ 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.

Bibliography and further reading

With regard to incident 2 from the case at hand (obtaining a candidate’s emails), there are several options by which the cyber espionage operation can be illegal. 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 legitimate justification, otherwise it will be in violation of international law.  Another possibly illegal option 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.

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, and hence illegal in itself; however, a few of the Experts dissented.

Checklist

  • Technical attribution: What is the origin of the cyber operation and who are the actors involved?
  • Sovereignty: What is the position of the client on whether sovereignty is a standalone primary rule of international law?
  • Sovereignty: Were any individuals associated with an outside State physically present in the domestic State’s territory without the latter’s consent?
  • Sovereignty: Did the operation occasion a loss of functionality of cyber infrastructure?
  • Sovereignty: Did the operation interfere with or usurp inherently governmental functions of another State?
  • Non-intervention: Did the operation bear on any of those matters in which States are allowed to decide freely?
  • Non-intervention: Did the operation amount to a coercive act against the victim State?
  • Espionage: Did the operation interfere with rights guaranteed under international human rights law? If so, did it have a legitimate justification under that body of law?
  • Espionage: Did the operation involve ‘close access’, i.e. the physical sending of individuals to the territory of the target State without its consent?

Appendixes

See also

Notes and references


Bibliography and further reading

External links

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