Scenario 02: Cyber espionage against government departments

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Enigma, 1923. Photo by Peter Mitterhofer, (CC-BY-SA 4.0).

A military unit of State B conducts a cyber espionage operation against State A’s Ministry of Foreign Affairs and its subordinate organizations. The data obtained in this operation is later published on the internet by State B.

The analysis considers whether State B’s operation violated sovereignty, the prohibition of intervention, and diplomatic and consular law. What measures, if any, can the victim State lawfully take in response?

Scenario[edit | edit source]

Keywords[edit | edit source]

Attribution, peacetime cyber espionage, diplomatic and consular law, prohibition of intervention, sovereignty, privacy

Facts[edit | edit source]

[F1] State A discovers that an email server and several other servers belonging to its Ministry of Foreign Affairs (MFA) have been infiltrated. (The MFA system is a closed system located in the territory of State A, with missions staff using VPN connection to access it.) Initially, the attackers are not identified. Investigation shows that the attackers gained access to the email server by obtaining passwords of several consular officers at State A’s missions abroad through spear phishing and fake log-on websites (incident 1).

[F2] After gaining access, the intruders escalated account privileges and moved laterally through the network, which includes servers located both within State A's territory and on diplomatic and consular premises abroad. Within a few days, they gained access to additional MFA network servers and services provided in various countries abroad. They had access to data of various MFA personnel including senior officials for several months (incident 2).

[F3] A large amount (over 10 GB) of unclassified data on MFA servers was exfiltrated, even though it is not immediately clear what precise data was affected by the incident (incident 3). No data was destroyed or encrypted and no MFA services were affected during the attack.

[F4] Nobody claims responsibility for the attack immediately after the MFA's discovery of the incident and publication of the fact that it has occurred. However, a few days later, emails, procurement documents, and internal memos belonging to the MFA of State A are published on the internet (incident 4).

[F5] Multiple evidence points to State B:

  • Technical investigation revealed the malware used by attackers in this case. The same malicious code was employed in the past during multiple campaigns by an entity affiliated with a military unit of State B. One of those campaigns was targeted against State C’s MFA.
  • Earlier on, head of an allied intelligence service in State C had publicly accused State B of a cyber espionage campaign conducted by the state military unit against State C’s MFA.
  • The attackers used tactics, techniques and procedures (TTPs) very similar to those observed in other attacks publicly attributed to State B by multiple countries including State A allies. Mimicking TTPs is much more difficult than tampering with other technical elements.
  • Judging by the nature and content of the compromised data and by persons who were apparently of particular interest to the attackers, State A cybersecurity authority indicated State B as a logical and the most probable perpetrator of the attack against the MFA.
  • State A intelligence service sources confirmed that State B institutions possessed information that was based on State A MFA’s internal data that was not in the public domain.

[F6] Both State A and State B are parties to the Vienna Convention on Diplomatic Relations (VCDR)[1] and the Vienna Convention on Consular Relations (VCCR).[2]

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] The legal analysis focuses on a number of relevant international legal rules, including the obligation to respect the sovereignty of other States, the prohibition of intervention, inviolability under diplomatic law and privacy rights.

Attribution[edit | edit source]

State organs and persons and entities in exercise of governmental authority
The following types of conduct of State organs and persons and entities in exercise of governmental authority are attributable to a State:
  1. The conduct of any of the organs of that State, "whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State";[3]
  2. The conduct of "a person or entity which is not an organ of the State […] but which is empowered by the law of that State to exercise elements of the governmental authority, […] provided the person or entity is acting in that capacity in the particular instance";[4]
  3. The conduct of an organ of another State placed at the disposal of the State in question, if "the organ is acting in the exercise of elements of the governmental authority" of the latter State.[5]

Such conduct is attributable to the State even if the organ, person or entity acting in that capacity "exceeds its authority or contravenes instructions" (acts ultra vires).[6]

[L2] The military unit of State B qualifies as an organ of that State.[7] As such, its relevant conduct is directly attributable to State B.[8] The following analysis proceeds on the assumption that all activities described in the scenario (incidents 1–4) were conducted by the said State B’s military unit and are therefore attributable to it.

Breach of an international obligation[edit | edit source]

Diplomatic and consular law[edit | edit source]

Inviolability of documents and archives of diplomatic missions and consular posts
Diplomatic and consular law protects the inviolability of documents and archives of diplomatic missions and consular posts.[9] This includes any official correspondence, whether in electronic or paper form.[10] The international legal obligation to respect inviolability is unaffected by the frequent practice of States to conduct cyber espionage operations that violate this duty. This is because any such practice is regularly condemned by the victim States, whereas the offending States refrain from putting forward any corresponding legal justification of such operations.[11]

[L3] In incident 1, by gaining access to the official email accounts of several consular officers of State A, State B ran afoul of the inviolability of official correspondence under diplomatic and consular law. The lateral movement (incident 2) and exfiltration of data (incident 3) are just further steps in the illegal activity of State B, at least to the extent that the hacked accounts and servers contained data pertaining to State A’s diplomatic missions and consular posts, irrespective of their location.[12] This is because international law grants the inviolability of any official correspondence related to the missions and its functions. [13]

[L4] Incident 4, wherein the data was published on the internet, raises the question whether the published materials are still protected by international law under diplomatic and consular law. This issue is unsettled in the present state of the law. One view, endorsed by a majority of the experts drafting the Tallinn Manual, is that inviolability no longer applies to data that has been made public, as it is “not confidential as a matter of fact”.[14] By contrast, others believe that the duty to respect the inviolability of the materials in question continues to apply in such cases.[15] The primary reason for this view is that the duty of inviolability covers the protected materials “wherever they may be”,[16] which therefore includes even the public domain.[17]

[L5] Nonetheless, there may be aspects of the right to privacy in the context of international human rights law which are violated by the publication of the consular officers' and other MFA personnel's personal details and additional information associated with their emails.[18]

Sovereignty[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.[19]

Multiple declarations by the UN,[20] the African Union,[21] the European Union,[22] NATO,[23] OSCE,[24] and individual States have confirmed that international law applies in cyberspace. Accordingly, so too does the principle of sovereignty.[25] 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.[26] It has also been adopted by several States including Austria,[27] Brazil, [28] Canada,[29] the Czech Republic,[30] Estonia,[31] Finland,[32] France,[33] Germany,[34] Iran,[35] Italy,[36] Japan,[37] the Netherlands,[38] New Zealand,[39] Norway,[40] Romania[41] and Sweden.[42]
  • 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.[43] This view has been adopted by one State, the United Kingdom,[44] and has been partially endorsed by the U.S. Department of Defense General Counsel.[45] 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.[46] 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.”[47][48] This encompasses both private and public infrastructure.[49] The external component entails that States are “free to conduct cyber activities in [their] international relations”, subject to their international law obligations.[50]

As a general rule, each State must respect the sovereignty of other States.[51]However, within the cyber realm – and particularly regarding remote cyber operations – there is still no agreement on the criteria[52] and the required threshold[53] to qualify an operation as a sovereignty violation.[54] 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.[55] Accordingly, the assessment needs to be done on a case-by-case basis.[56]

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.[57] 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.[58]
  2. Causation of physical damage or injury by remote means;[59] again, “a few” Experts took the position that this is a relevant but not a determinative factor by itself.[60]
  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);[61] 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.[62]
  4. Interference with data or services that are necessary for the exercise of "inherently governmental functions";[63] although the Experts could not conclusively define the term "inherently governmental functions", they agreed that, for example, the conduct of elections would so qualify.[64]
  5. Usurpation of "inherently governmental functions", such as exercise of law enforcement functions in another State’s territory without justification.[65]

The Tallinn Manual’s view of what constitutes a violation of sovereignty has been expressly endorsed by several States including Canada,[66] Germany[67] and the Netherlands;[68] and followed to some extent by other States, such as the Czech Republic,[69] Norway,[70] Sweden[71] and Switzerland.[72] 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”;[73]similarly, Iran has argued that “unlawful intrusion to the (public or private) cyber structures” abroad may qualify as a breach of sovereignty.[74]

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.[75]

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).

[L6] Whether State A's sovereignty was violated in incidents 1–3 depends on whether the espionage operation was fully conducted from outside of State A’s territory, or whether a part of it was conducted by operators physically located in State A’s territory. In the latter case, the operation could be considered a violation of sovereignty, and hence State B’s breach of its corresponding international obligation (option 1 above).[76] As for a possible interference with data or services that are necessary for the exercise of "inherently governmental functions" (option 4 above), the data was merely copied by the adversary, not destroyed, deleted or modified, and the services were kept working during the espionage operation; hence the operation did not impair the exercise of the functions by State A.[77]

[L7] Taken separately, the publication of the acquired data (incident 4) would not violate the sovereignty of State A (however, if the publication was done in order to coerce State A, it might be a prohibited intervention - see below). Had the published information been classified in State A, then the publication is likely illegal according to State A’s domestic law; State A can also be a party to international agreements which regulate the transfer of its classified information to third parties, which may create obligations for third States with regard to this information.[78]

Prohibition of intervention[edit | edit source]

Prohibition of intervention
The obligation of non-intervention, a norm of customary international law,[79] 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.[80]

In order for an act, including a cyber operation,[81] to qualify as a prohibited intervention, it must fulfil the following conditions:[82]
  1. The act must bear on those matters in which States may decide freely.[83] 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”[80] or the conduct of national elections[84]), and external affairs (“formulation of foreign policy”;[80] or “recognition of states and membership of international organisations”[85])—the so-called domaine réservé of States.[86] 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:[87]
    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.[88] 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)”.[89]
    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.[90] 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.[91]
    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.[92] The element of coercion also entails the requirement of intent.[93]

    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,[94] it is less clear with respect to non-forcible forms of interference.[95] Some States support the approach that intervention may take various forms, such as economic and political coercion.[96] One example that has been reiterated in several States’ positions, including Australia,[97] Brazil,[98] Canada,[99] Germany,[100] Israel,[101] New Zealand,[102] Norway,[103] Singapore,[104] the United Kingdom[105] and the United States,[106] 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.[107]

    Both potential and actual effects are considered to be relevant when assessing the coercion element.[108]

  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.[109]

  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.[110]


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 (2024) (2024), 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, prohibited intervention could also be a relevant qualification. The incidents encroach on State A’s external affairs which are the sole prerogative of State A. However, incidents 1–3 (infiltration into State A systems and exfiltration of data) do not contain the requisite element of coercion, because they are conducted merely with the aim to gather information, which does not affect State A's ability to conduct its external affairs.[111]

[L9] As for incident 4 (publication of the data), if it can be attributed to State B, it could be coercive in the sense that it has the potential to cause State A to adapt its external (and internal) affairs based on the published information and to contain the relevant political damage. It may be harder for State A to ascertain the intent of State B, which might have had no particular outcome – i.e. effect on State A’s behaviour – in mind, apart from causing mischief. This might also pose an issue for establishing the causal nexus between State B’s activity and the resulting effect on State A's affairs: the causality might not be deemed direct enough.

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.’[112]

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.[113] According to a minority of the experts, espionage creates an exception for certain otherwise illegal cyber operations.[114]

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] As this overview demonstrates, the mere characterization of a cyber operation as amounting to cyber espionage is not conclusive as to the question of its lawfulness under international law.[115] Reference must be had to specific rules of international law, which may be breached by the operation in question in its specific circumstances (see especially Sovereignty and Prohibited intervention above).

[L11] It may be noted that there is a view that acts of espionage represent a customary exception to the relevant prohibitions.[116] However, this interpretation would amount to the establishment of a novel circumstance precluding wrongfulness, for which there is no evidence in international law. Accordingly, the lawfulness of incidents 1–4 therefore must be assessed with reference to other applicable international legal rules.

Checklist[edit | edit source]

Appendices[edit | edit source]

See also[edit | edit source]

Notes and references[edit | edit source]

  1. Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964), 500 UNTS 95.
  2. Vienna Convention on Consular Relations (adopted 24 April 1963, entered into force 19 March 1967), 596 UNTS 261.
  3. ILC Articles on State Responsibility, Art 4(1).
  4. ILC Articles on State Responsibility, Art 5.
  5. ILC Articles on State Responsibility, Art 6.
  6. ILC Articles on State Responsibility, Art 7; Tallinn Manual 2.0, commentary to rule 15, paras. 6-7 and 12.
  7. See, for example, ICRC Customary IHL Study, vol 1, 530–531 (“The armed forces are considered to be a State organ, like any other entity of the executive, legislative or judicial branch of government.”).
  8. ILC Articles on State Responsibility, Art. 4(1); Tallinn Manual 2.0, commentary to rule 15, para 1.
  9. Art 24 VCDR; Art 33 VCCR.
  10. Tallinn Manual 2.0, commentary to rule 41, para 3.
  11. Tallinn Manual 2.0, commentary to rule 41, para. 11. However, commentary to rule 41, para. 8, notices that the Experts were divided on whether the duty to respect the inviolability over archives or material at rest on private servers as opposed to transit lies upon all States and not only the receiving State.
  12. See Tallinn Manual 2.0, commentary to rule 41, para 6 (noting that archives and documents of a diplomatic mission or a consular post remain inviolable even if they are stored outside of the receiving State, including on a server belonging to the sending State’s ministry of foreign affairs).
  13. Art. 33 VCCR, Art. 61 VCCR and Art. 24 VCDR, Art. 27(2) VCDR and Art. 40(3) VCDR .
  14. Tallinn Manual 2.0, commentary to rule 41, para 14.
  15. Tallinn Manual 2.0, commentary to rule 41, para 15.
  16. Art. 24 VCDR and Art. 33 VCCR.
  17. Tallinn Manual 2.0, commentary to rule 41, para. 15.
  18. International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), Art. 17.
  19. Island of Palmas (Neth. v. U.S.), 2 RIAA 829, 838 (Perm. Ct. Arb. 1928).
  20. UNGA Res 71/237 (30 December 2015) UN Doc A/RES/20/237.
  21. 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).
  22. 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).
  23. 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.
  24. 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.
  25. 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).
  26. 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’).
  27. 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’.
  28. 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.
  29. Government of Canada, International Law applicable in cyberspace (April 2022) para 13.
  30. 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.’
  31. 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.
  32. 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.’
  33. 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’.
  34. 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’.
  35. 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.’).
  36. Italian Ministry for Foreign Affairs and International Cooperation, ‘Italian position paper on “International law and cyberspace”’ (2021) 4.
  37. Ministry of Foreign Affairs of Japan, ‘Basic Position of the Government of Japan on International Law Applicable to Cyber Operations’ (16 June 2021) 3.
  38. 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’.
  39. New Zealand Foreign Affairs and Trade, ‘The Application of International Law to State Activity in Cyberspace’ (1 December 2020) 2.
  40. 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.
  41. 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.
  42. Government Offices of Sweden, ‘Position Paper on the Application of International Law in Cyberspace’ (July 2022) 2.
  43. 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’).
  44. 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.
  45. 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’.
  46. Cf. James Crawford, Brownlie's Principles of Public International Law (OUP 2012) 448.
  47. Tallinn Manual 2.0, rule 2.
  48. 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.
  49. Tallinn Manual 2.0., commentary to rule 4, para 5. See also the national positions of Norway, Sweden and Switzerland.
  50. Tallinn Manual 2.0., rule 3; see also the national positions of the Czech Republic, the Netherlands and Norway.
  51. 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.
  52. 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.
  53. 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.
  54. Michael Schmitt, ‘Sovereignty, Intervention, and Autonomous Cyber Capabilities’ (2020) 96 International Law Studies 549.
  55. Tallinn Manual 2.0, commentary to rule 4, para 5 and 12.
  56. See e.g. the national position of Canada, Finland, New Zealand, Norway, Sweden and Switzerland.
  57. 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.
  58. 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.
  59. Tallinn Manual 2.0, commentary to rule 4, para 11.
  60. Tallinn Manual 2.0, commentary to rule 4, para 12.
  61. 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.
  62. Tallinn Manual 2.0, commentary to rule 4, para 14.
  63. Tallinn Manual 2.0, commentary to rule 4, para 15.
  64. 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.
  65. Tallinn Manual 2.0, commentary to rule 4, para 18.
  66. Government of Canada, International Law applicable in cyberspace (April 2022) para 13.
  67. Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), p. 4.
  68. Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019), p. 3.
  69. Richard Kadlčák, Statement of the Special Envoy for Cyberspace and Director of Cybersecurity Department of the Czech Republic (11 February 2020) 3.
  70. 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.
  71. Government Offices of Sweden, Position Paper on the Application of International Law in Cyberspace (July 2022) 2
  72. Federal Department of Foreign Affairs, ‘Switzerland's position paper on the application of international law in cyberspace’ (May 2021) 3.
  73. Ministry of Defense of France, 'International Law Applied to Operations in Cyberspace' (9 September 2019) 6.
  74. 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’).
  75. 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’).
  76. Tallinn Manual 2.0, commentary to rule 4, paras 6-7; commentary to rule 32, para 9. It should be noted that besides this majority position, some experts highlighted a possible exception for acts of espionage due to the extensive practice in that regard. See Tallinn Manual 2.0., commentary to rule 4, para 8.
  77. As highlighted by the commentary to the Tallinn Manual, the focus is on the interference or usurpation of functions qualified as ‘inherently governmental’ since ‘the target State enjoys the exclusive right to perform them, or to decide upon their performance’, and thus ‘it matters not whether physical damage, injury, or loss of functionality has resulted or whether the operation qualifies in accordance with the various differing positions [outlined] for operations that do not result in a loss of functionality’. See Tallinn Manual 2.0., commentary to rule 4, para 15.
  78. See, for example, Agreement between the government of the United Kingdom of Great Britain and Northern Ireland and the government of the French Republic concerning the mutual protection of classified information (signed on 27 March 2008 in London, entered into force 1 December 2008, France No. 1 (2008), Cm. 7425.
  79. The customary nature has been highlighted by several States, including Australia, Brazil, Germany, Iran, Norway, Sweden, the United Kingdom and the United States.
  80. 80.0 80.1 80.2 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14 [205].
  81. 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).
  82. 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.
  83. Militarv and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Merits, Judgment. I.C.J. Reports 1986, 14 [241].
  84. 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.
  85. 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.
  86. 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].
  87. 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.
  88. 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.’).
  89. 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.
  90. 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.’).
  91. 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.
  92. Tallinn Manual 2.0, commentary to rule 66, para 21. See also the national positions of Canada, Germany and Norway.
  93. Tallinn Manual 2.0, commentary to rule 66, paras 19 and 27. See also the national positions of Germany, New Zealand and Sweden.
  94. 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.
  95. See Harriet Moynihan, The Application of International Law to State Cyberattacks Sovereignty and Non-Intervention (Chatham House, 2 December 2019) para 82.
  96. 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’).
  97. Australian Government, Australia's position on how international law applies to State conduct in cyberspace (2020).
  98. 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.
  99. Government of Canada, International Law applicable in cyberspace (April 2022)
  100. Federal Government of Germany, ‘On the Application of International Law in Cyberspace’, Position Paper (March 2021) 5-6.
  101. Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations (8 December 2020).
  102. New Zealand Foreign Affairs and Trade, The Application of International Law to State Activity in Cyberspace (1 December 2020) 2.
  103. 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.
  104. 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.
  105. 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.
  106. 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.
  107. See the national positions of Canada, Romania, Sweden and Switzerland.
  108. 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.
  109. Tallinn Manual 2.0, commentary to rule 66, para 24 (the exact nature of the causal nexus was not agreed on).
  110. 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’).
  111. Tallinn Manual 2.0, commentary to rule 66, para 33.
  112. Tallinn Manual 2.0, rule 32.
  113. Tallinn Manual 2.0, rule 32 and commentary to rule 32, para 6.
  114. Id.; Ashley Deeks, 'An International Legal Framework for Surveillance' (2015) 55 VA.J.INT’LL. 291, 302-3.
  115. See also Tallinn Manual 2.0, commentary to rule 32, para 6 (“By styling a cyber operation as a ‘cyber espionage operation’, a State cannot ... claim that it is by definition lawful under international law; its lawfulness depends on whether the way in which the operation is carried out violates any international law obligations that bind the State.”).
  116. See, for example, Tallinn Manual 2.0, commentary to rule 32, para 9; Ashley Deeks, “An International Legal Framework for Surveillance” (2015) 55 Va J Int’l L 291, 302-3.

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