Scenario 14: Ransomware campaign
Municipal governments and health care providers in one State fall victim to a ransomware campaign launched by a non-State group in a second State. The ransomware campaign disables municipal and health care services in the first State. The scenario explores how the ransomware campaign may be classified under international law. It first considers whether the campaign is a breach of an international obligation attributable to a State. It then discusses the possible legal responses available to the victim State.
Scenario[edit | edit source]
Keywords[edit | edit source]
Attribution, cyber operation, due diligence, prohibition of intervention, ransomware, retorsion, sovereignty, State responsibility, use of force
Facts[edit | edit source]
[F1] A previously unknown strain of ransomware is directed toward several municipal governments and a variety of health care services providers in State A through the use of phishing emails. Upon opening the emails by government and health care services employees, computer systems are affected. In a major metropolitan city in State A, the local court is forced offline because the ransomware has encrypted its computer systems and the police are forced to revert to using pen and paper to issue traffic citations. Morever, police are unable to effectuate warrants and ongoing investigations into crimes must be postponed. Thousands of computers at the State A Department of Transportation stop working. Processing of applications for drivers’ licenses and permit renewals is halted. City authorities refuse to pay ransom to the attackers and are forced to spend considerable sums to repair and restore the affected computer systems.
[F2] The same ransomware infects hospital systems in a separate city in State A. Doctors are unable to access patient data stored digitally. Staff resort to using paper charts, transmitting messages in person and being able to perform only basic treatment without access to X-rays or ultrasound scans. Health records system of a major company incorporated in State A is also infected, leaving thousands of patient medical files inaccessible. The inaccessibility of patient data coupled with the disruption to the hospital computer systems results in the inability of the medical staff to perform critical surgeries. Patients are admitted to the emergency rooms when absolutely necessary, but cannot be operated on in a timely manner, resulting in several otherwise preventable injuries, but fortunately no loss of life. Lesser harm is caused to patients who cannot be given necessary medication because their medical records are inaccessible. A significant economic loss is caused by the need to reroute patients to other hospitals.
[F3] After several weeks, the ransomware attacks stop.
[F4] Authorities in State A determine that the ransomware was created by a group of hackers in State B. The hackers’ relationship to State B is not clear. However, the methodology utilized by the hackers bears a striking similarity to a previous cyber operation attributed to State B. Moreover, State B, while formally denying any involvement in the incidents, praises the actions of the hackers as a just and foreseeable reaction to what State B characterizes as State A’s foreign policy misdeeds. State A and State B have strained relations.
[F5] State A indicts the hackers, but State B does not cooperate in extraditing the hackers to State A for prosecution under criminal laws of State A for several reasons. Firstly, State B is prohibited by its constitution from extraditing its citizens for criminal prosecution in other States. Secondly, relations between State A and State B are such that, even in the absence of the foregoing reasons, State B would be disinclined to co-operate with State A. Finally, State media in State B has lauded the actions of the hackers as a just response to State A’s purported misdeeds.
Examples[edit | edit source]
- Sony Pictures Entertainment attack (2014)
- WannaCry (2017)
- NotPetya (2017)
- Texas Municipality ransomware attack (2019)
- SamSam ransomware attack (2018)
- Springhill Medical Center ransomware attack (2019)
- Colonial Pipeline ransomware attack (2021)
- Kaseya VSA ransomware attack (2021)
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 analysis in this scenario focuses on the legal qualification of the ransomware attacks from the perspective of international law. In particular, it examines whether the relevant conduct is attributable to State B and whether it amounts to a breach of an international obligation owed by State B to State A. It then discusses the possible legal responses available to the State A.
Attribution[edit | edit source]
State organs and exercise of governmental authority[edit | edit source]
State organs and persons and entities in exercise of governmental authority |
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The following types of conduct of State organs and persons and entities in exercise of governmental authority are attributable to a State:
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).[4] |
[L2] It is not clear that the hackers are a State organ of State B, nor that they are exercising governmental authority on behalf of State B.
Non-State actors[edit | edit source]
Non-State actors |
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Activities of non-State actors (groups and individuals) are generally not attributable to States. However, such conduct can be attributable to a State in particular if the actor is:
Each of the three criteria entails a form of subordination between the non-State actor and the potentially responsible State.[6] Regarding the criterion of control, there is a debate on the degree of control required for the attribution of the conduct to the State, as different tests have been developed. On the one hand, the ICJ has affirmed that the exercise of “effective control” is necessary,[7] which entails that the State is able to control the beginning of the relevant operations, the way they are carried out, and their end.[8] This position has been expressly followed by some States in the realm of cyber operations, including Brazil,[9] the Netherlands[10] and Norway.[11] On the other hand, a less restrictive approach has been developed by the ICTY,[12] and followed by the ICRC,[13] under the “overall control” test, which requires the State in question (i) to provide the non-State entity with financial and training assistance, military equipment and/or operational support, and (ii) to participate in the organization, co-ordination or planning of operations of the entity in question.[14] Nevertheless, the proponents of this test limit it to organized groups, meaning that the effective control test remains applicable for the conduct of private individuals, or unorganized groups.[15]
Additionally,
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[L3] As non-State actors, the actions of the hackers may be attributable to State B if they were acting under the instructions or effective control of State B[20] or if State B acknowledges and adopts the actions as its own.[21] First, there is no evidence to suggest that the hackers were operating under the instructions or effective control of State B. Likewise, there is insufficient evidence to indicate that State B adequately acknowledged and adopted the behaviour of the hackers as its own. Although State B, including its State media, praised the actions of the hackers as a just and foreseeable reaction to what State B characterizes as State A’s foreign policy, this is unlikely to satisfy the acknowledgment and adoption standard which is applied narrowly and requires more State involvement that mere endorsement or expression of approval.[22] Moreover, a minority view holds that the acknowledgement and adoption standard only applies prospectively, and, thus, under this view, State B’s praise of the actions of the hackers after the fact would not suffice to meet the standard.[23]
Breach of an international obligation[edit | edit source]
[L4] This section considers whether the ransomware attacks are a breach of an international obligation—specifically, the prohibition on the use of force, the prohibition on intervention, the obligation to respect the sovereignty of other States, and the duty of due diligence.
Use of force[edit | edit source]
Use of force |
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Article 2(4) of the UN Charter prescribes States to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations”.[24] This prohibition is reflective of customary international law[25] and it is frequently described as a peremptory norm of international law.[26]
This rule applies between States; therefore the conduct needs to be attributable to a State and against another State ‘in their international relations’, thus excluding non-State actors unless their conduct is attributable to a State.[27] As stated by the International Court of Justice, the prohibition applies to any use of force, regardless of the means employed.[28] However, the notion of “force” in this context is limited to armed force[29], and to operations whose scale and effects are comparable to the use of armed force.[30] As stressed by several States, each situation has to be analysed on a case-by-case basis.[31] Undoubtedly, one of the purposes of the prohibition of force under international law is to safeguard the national security of the potentially affected States.[32] However, many forms of outside interference including various forms of political and economic coercion may affect the national security of the victim State. And yet, the drafters of the UN Charter had expressly rejected the proposal to extend the prohibition of force beyond the strict confines of military (or armed) force.[33] This is reflected also in the preamble, which explicitly stipulates that the drafters sought “to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest”.[34] In principle, it could be argued that the notion of “force”, like other generic terms in treaties of unlimited duration, should be presumed to have an evolving meaning.[35] Regarding its application to cyber operations, an “effects-based approach” has been mostly followed.[36] In this sense, there is emerging consensus that “a cyber attack that causes or is reasonably likely to cause physical damage to property, loss of life or injury to persons would fall under the prohibition contained in Article 2(4) of the UN Charter”,[37] including both direct and indirect consequences. At present, there is a debate as to whether cyber operations with no physical effects may amount to a prohibited use of force. It has been argued that disruptive cyber operations of this kind fall under the scope of Article 2(4) if the resulting disruption is “significant enough to affect state security”.[38] As of 2022, there is limited State practice supporting the claim that the meaning of “force” has evolved to include non-destructive cyber operations against critical national infrastructure[39] and no victim State of an operation of this kind has suggested that the operation would have amounted to a use of force.[40] However, States have begun addressing this question. In particular, France,[41] the Netherlands[42] and Norway[43] allow for the possibility of cyber operations, which do not produce physical effects, to qualify as uses of force, if certain criteria are met. These qualitative and quantitative non-exhaustive criteria include the seriousness and reach of a given cyber operation’s consequences and its military nature,[44] as well as “the circumstances prevailing at the time of the operation, such as the origin of the operation and the nature of the instigator (military or not), the extent of intrusion, the actual or intended effects of the operation or the nature of the intended target”.[45] Several of these criteria are also reflected in the Tallinn Manual 2.0.[46] Other States, such as Italy, did not rule out the possibility of considering operations causing the interruption of essential services without physical damage within the scope of the prohibition of the use of force.[47] A use of force is unlawful under international law, unless it is authorized by the UN Security Council under Chapter VII of the UN Charter,[48] conducted in the exercise of the inherent right to self-defence,[49] or consented to by the territorial State.[50] Even if an operation does not meet the threshold of the use of force, it may still be considered a violation of other rules of international law.[51] In this regard, the prohibition of intervention, the obligation to respect the sovereignty of other States, and the possible obligation to refrain from launching cyber operations against other States’ critical infrastructure are all of potential relevance. Publicly available national positions that address this issue include: (2024), (2020), (2024), (2021), (2022), (2023), (2024), (2023), (2020), (2019), (2021), (2023), (2020), (2021), (2021), (2019), (2021), (2023), (2022), (2021), (2022), (2021), (2012), (2020), (2021). |
[L5] It is unlikely that the ransomware attacks amount to a use of force. A consideration of eight factors proposed by the Tallinn Manual — severity, immediacy, directness, invasiveness, measurability of effects, military character, State involvement, and presumptive legality — shows that to be so.[52] However, the eight factors do not constitute an official framework that must be used when assessing the threshold of use of force, but are rather non-exhaustive indicators, similar to those that States are likely to consider.
[L6] Crucially, the ransomware attacks’ overall severity was significant. While the disruption in municipal functions caused only inconvenience for citizens and municipal agencies, the harm that resulted from the disruption to medical services was significant. Several patients admitted to hospitals in State A for emergency procedures were unable to be operated on in a timely manner, resulting in several instances in otherwise preventable injury. Other patients could not receive their medication due to the inaccessibility of their medical records.
[L7] The consequences of the ransomware attacks did not follow immediately from the cyber activities. In most cases, the penetration of the affected systems occurred weeks before the ransom notice was directed to the victim, and monetary costs incurred by the victims to recover data and restore their systems followed weeks or months thereafter. States are more likely to view a cyber operation that causes immediate consequences as a use of force, as distinguishable from consequences that are delayed or manifest slowly over time. Likewise, the less opportunity a State has to mitigate or forestall the effects of a cyber operation, the more likely it is that the operation will be considered as a use of force.[53] State A, in fact, had the choice of making a ransom payment and thus preventing the consequences of the attacks.
[L8] The effects of the ransomware attacks on State A were not directly connected to the underlying cyber activity. Directness depends on the degree of attenuation between the initial act and its consequences.[54] The initial act in this case was the sending of phishing emails. When those emails were opened, the ransomware infected the recipient’s computers. Computer files were then encrypted and rendered inaccessible. Because the victims failed to make ransom payments, the files were not readily decrypted. Inability to access the files ultimately and indirectly resulted in harm to the victim organizations. While the attacks did have indirect consequences, in the form of the costs incurred to restore backed-up data and to implement improved security, the degree of attenuation between the initial act and its consequences means that directness of the attacks’ cause and effects may not be viewed as comparable to the direct harm caused to people or objects by a kinetic attack.
[L9] The hackers did indeed invasively probe the networks of municipal governments and healthcare providers; however, these were not top-secret networks that were necessarily intended to have the highest level of security. And the networks that the hackers did access were not amongst the most secure maintained by the victims: for instance, emergency response networks were untouched. The effects of the ransomware attacks cannot be calculated with certainty, even if a numerical sum can be affixed to the remediation costs.
[L10] There is no indication that the attacks had a military character. No link has been established between the hackers and the military of State B or of any other State. Nor were the military forces of State A the target of the ransomware campaign.
[L11] Likewise, no State is publicly alleged to have been involved, either directly or indirectly, in the campaign. In this regard, the lack of a clear attribution of the cyber operation to a State would also preclude the characterization of the operation as a use of force, which applies only between States.
[L12] Finally, the reconnaissance and network probing activities of the hackers were qualitatively similar to espionage activities, which are not per se regulated under international law and thus not presumptively judged to be uses of force.[55]
[L13] Considering each one of the foregoing factors, severity is the only one that could feasibly cause the ransomware attacks to meet the criteria of a use of force. However, severity is subject to a de minimis rule.[56] It is likely that the severity of the ransomware attacks was not sufficient to meet that de minimis. While the otherwise preventable injuries to persons are certainly more than mere inconveniences, it is unclear whether the limited number of injuries, in light of the ransomware attacks’ failure to meet any of the other criteria, renders the attacks so severe as to constitute a use of force. However, scholars and States may reach different conclusions in their assessment.
Prohibition of intervention[edit | edit source]
Prohibition of intervention |
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The obligation of non-intervention, a norm of customary international law,[57] 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:In order for an act, including a cyber operation,[59] to qualify as a prohibited intervention, it must fulfil the following conditions:[60]
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.[88]
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[L14] There is no suggestion that the ransomware attacks in any way involved the external affairs of State A, but certain effects of the ransomware did implicate the domaine réservé of State A. For example, the conduct of traffic police, the operations of the Department of Transportation, or the provision of essential medical care,[89] are certainly fields of activity not committed to international law and possibly form part of the domaine réservé of State A.
[L15] It is less likely that the attacks were coercive efforts designed to influence outcomes in those fields of activity. While the hackers may have manipulated hospitals in State A and the municipal government of a city in State A into making a choice between paying a ransom or spending considerably more to remedy the effects, that choice was not coercive in the sense that it was designed to compel the State A to adopt a particular policy, or to deprive it of its ability to control its affairs, with regard to traffic, policing, hospitals, or municipal policy.[90] Instead, the coercion was intended to compel the payment of ransom.
[L16] Accordingly, the ransomware attacks would likely not be considered a coercive intervention in the domaine réservé of State A.
Obligation to respect the sovereignty of other States[edit | edit source]
Sovereignty |
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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,Multiple declarations by the UN,[92] the African Union,[93] the European Union,[94] NATO,[95] OSCE,[96] and individual States have confirmed that international law applies in cyberspace. Accordingly, so too does the principle of sovereignty.[97] 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.
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.[118] 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.”[119][120] This encompasses both private and public infrastructure.[121] The external component entails that States are “free to conduct cyber activities in [their] international relations”, subject to their international law obligations.[122] As a general rule, each State must respect the sovereignty of other States.[123]However, within the cyber realm – and particularly regarding remote cyber operations – there is still no agreement on the criteria[124] and the required threshold[125] to qualify an operation as a sovereignty violation.[126] 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.[127] Accordingly, the assessment needs to be done on a case-by-case basis.[128] 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:
The Tallinn Manual’s view of what constitutes a violation of sovereignty has been expressly endorsed by several States including Canada,[138] Germany[139] and the Netherlands;[140] and followed to some extent by other States, such as the Czech Republic,[141] Norway,[142] Sweden[143] and Switzerland.[144] 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”;[145]similarly, Iran has argued that “unlawful intrusion to the (public or private) cyber structures” abroad may qualify as a breach of sovereignty.[146] 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.[147] Publicly available national positions that address this issue include: (2024), (2020), (2024), (2021), (2022), (2021), (2023), (2020), (2024), (2023), (2019), (2021), (2020), (2019), (2021), (2020), (2023), (2020), (2021), (2021), (2021), (2019), (2020), (2021), (2023), (2022), (2021), (2021), (2022), (2021), (2018), (2021), (2022), (2012), (2016), (2020), (2021). |
[L17] The attacks caused injury to persons (option 2 above), and they resulted in severe losses of functionality (option 3). Everything from normal employee workstations at the Department of Transportation to sophisticated surgical systems and diagnostic equipment at the hospital were unable to function. Medical services were disrupted. Municipal offices were forced offline for weeks. The loss of functionality required spending considerable sums of money on IT support and repair and reinstallation of software to remediate.
[L18] Moreover, the ransomware attacks also interfered with the performance of inherently governmental functions (option 4 above). The court and police operations of State A’s cities are inherently governmental functions, which although not usurped were certainly subject to interference.
[L19] Thus, provided the ransomware attacks were attributable to State B (on which, see above), they would likely amount to a violation of the State A’s sovereignty.
Due diligence obligation[edit | edit source]
Due diligence |
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According to the traditional formulation by the ICJ in the Corfu Channel case, every State is under an “obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States”.[148] In the cyber context, the UN General Assembly urged States already in 2000 to “ensure that their laws and practice eliminate safe havens for those who criminally misuse information technologies”.[149]
It is the matter of some controversy whether the principle of due diligence reflects a binding obligation applicable to cyber operations.[150] Some States have framed it within their national positions as one of the "voluntary, non-binding norms of responsible State behaviour"[151] in cyberspace, including Israel,[152] New Zealand,[153] the United Kingdom[154] and Canada.[155] It has also been proposed that in the cyber context, it is preferable to construe due diligence as a standard of attribution rather than as a standalone primary rule of international law.[156] Nevertheless, the present analysis proceeds on the basis that as a matter of lex lata, due diligence constitutes a general international obligation for every State not to knowingly allow its territory to be used for internationally wrongful acts using cyber means.[157] This view has also been endorsed by a growing number of States, including Australia,[158] Czech Republic,[159] Estonia,[160] Finland,[161] France,[162] Germany,[163] Italy,[164] Japan,[165] the Netherlands,[166] Norway,[167] Switzerland,[168] and Sweden.[169] Due diligence does not entail a duty of prevention,[170] but rather an obligation of conduct.[171] A State breaches its due diligence obligation in the presence of the following cumulative elements:
Publicly available national positions that address this issue include: (2024), (2020), (2024), (2022), (2021), (2023), (2020), (2024), (2023), (2019), (2021), (2019), (2021), (2023), (2020), (2021), (2021), (2019), (2020), (2021), (2022), (2021), (2021), (2022), (2021), (2021), (2021). |
[L20] Breaches of the due diligence obligation do not require that the act in question be attributable to a State. Instead, the duty of due diligence assumes the role of three parties: the target State toward which the cyber operation is directed; the territorial State; and a third-party author of the cyber operation.[179] The third party may be another State, a non-State group, or a private person. The threshold is whether the underlying act, if committed by the territorial State, would have violated a rule of international law (i.e., would have been considered an internationally wrongful act) (condition 3). While, in general, it is States, not individuals or private entities, that are able to violate international law, cyber operations carried out by individuals or private entities that nevertheless result in serious adverse consequences fall within a State’s due diligence obligation.[180]
[L21] Thus, if State B has knowledge of the hackers’ operations, those operations affect the rights of and cause serious adverse consequences to State A, and State A intimates that State B take action to stop the interference in its internal affairs, State B has a duty to take feasible action to stop the ransomware attacks. While the harm caused by a cyber activity must be serious, the due diligence principle does not require that there be physical damage to objects or injuries to persons.[181]
[L22] In the present case, the ransomware attacks affected State A’s sovereign right to perform inherently governmental functions—operating courts and police departments (condition 1). Moreover, the attacks caused serious adverse consequences for the victim State. The loss of functionality in hospital equipment caused injury to patients, and the encryption of health records led to improper medical care resulting in injury to patients (condition 4).
[L23] Regarding the required knowledge, a State is in breach even if it is unaware of cyber activity conducted from its territory but “objectively should have known that its territory was being used”[182] (condition 5). State A believes that State B knew that the hackers were operating from its territory (conditions 2 and 5). State B, on the other hand, argues that it had no such knowledge. It is not reasonable to assert that State B objectively should have known that the hackers were utilizing its cyber infrastructure to launch attacks against State A because the ransomware employed was complex and previously unknown. State B cannot be expected to prevent the use of malware of which is it entirely unaware. Given that the knowledge requirement was not clearly met in this case, State B’s lack of response did not amount itself to a violation of its duty of due diligence (condition 6).
Permissible responses by State A[edit | edit source]
[L24] Having established that the ransomware attacks do not meet the criteria of an internationally wrongful act, this section examines the options available for State B to take in response. Cyber operations may, in general, be met with four responses under international law: countermeasures, the plea of necessity, self-defense, and retorsion. For the reasons explained below, only retorsion is available to State A.
Countermeasures[edit | edit source]
Countermeasures |
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Countermeasures are “measures that would otherwise be contrary to the international obligations of an injured State vis-à-vis the responsible State, if they were not taken by the former in response to an internationally wrongful act by the latter in order to procure cessation and reparation”.[183] Several States, including Australia,[184] Austria,[185] Canada,[186] Estonia,[187] France,[188] Germany,[189] Italy,[190] Japan,[191] the Netherlands,[192] New Zealand,[193] Norway,[194] Singapore,[195] Sweden,[196] the United Kingdom,[197] and the United States,[198] have expressly confirmed the applicability of the law of countermeasures to cyber operations. Others, including Brazil,[199] China,[200] and Cuba,[201] have expressed caution in this regard. Countermeasures should be distinguished from retorsions, which are unfriendly but lawful acts by the aggrieved party against the wrongdoer.
As a matter of general international law, an injured State may only take countermeasures against the responsible State if the following conditions are met:
Additionally, the countermeasures must fulfil the following requirements:
Countermeasures are temporary in nature. In case the original internationally wrongful act has ceased, and the dispute is submitted in good faith to a court or tribunal with the authority to make decisions binding on the parties, countermeasures may not be taken and if already taken, must be suspended,[228] except if the responsible State fails to implement the dispute settlement procedures in good faith.[229] Countermeasures must also be terminated as soon as the responsible State has complied with its (secondary) obligations.[230] There is an ongoing debate as to whether States that have not themselves been directly injured by an unlawful cyber operation may engage in countermeasures in support of the injured State (sometimes referred to as "collective countermeasures").[231] In particular, Estonia has opined that non-injured States “may apply countermeasures to support the state directly affected by the malicious cyber operation”,[232] a view that has also received some support from New Zealand.[233] This would apply where diplomatic action is insufficient, but no lawful recourse to use of force exists. This interpretation would allow States to offer active assistance to other States, which may not possess sufficient cyber capabilities themselves to counter an ongoing unlawful cyber operation, or otherwise deter the responsible State with other non-cyber countermeasures.[234] However, this view has since been rejected by at least one State (France),[235] while others, such as Canada, do not yet consider there to be “sufficient State practice or opinio juris to conclude that [collective countermeasures] are permitted under international law”.[236] Therefore, it has to be regarded as a call for progressive development of international law, rather than a statement of the current state of international law. Whether a particular measure fulfils these conditions is an objective question,[237] while the burden of proof that the relevant conditions have been fulfilled falls on the injured State.[238] The exact standard of proof required is unsettled in international law and it will depend on the relevant forum. However, relevant international jurisprudence tends to rely on the standard of “clear and convincing evidence”.[239] This standard translates in practice into a duty to “convince the arbiter in question that it is substantially more likely than not that the factual claims that have been made are true”.[240] Importantly, if a State does resort to countermeasures on the basis of an unfounded assessment that a breach has occurred, it may incur in international responsibility for its own wrongful conduct.[241] Publicly available national positions that address this issue include: (2020), (2024), (2021), (2022), (2023), (2024), (2023), (2019), (2021), (2020), (2019), (2021), (2023), (2020), (2021), (2021), (2019), (2020), (2021), (2022), (2021), (2021), (2021), (2022), (2021), (2018), (2021), (2022), (2016), (2020), (2021). |
[L25] Countermeasures are not an available response to the ransomware attacks in the present scenario because the object of countermeasures must be a State, and, as seen above, it was not possible to attribute these ransomware attacks to a State. Moreover, there must be an internationally wrongful act to justify countermeasures. Even if there was one, countermeasures should be limited to ensuring that the unlawful act stops, potentially obtaining assurance and guarantees of non-repetition from the responsible State, and compelling the responsible State to make reparations. Because the ransomware incidents have stopped, countermeasures would have to be limited to compelling the responsible State to guarantee that the incidents do not resume and providing compensation for damages. Countermeasures may not be punitive or have a retaliatory effect.
[L26] State A would be advised to take precautions not to violate an obligation owed to a third State if engaging in countermeasures in response to the ransomware attacks even if they were attributable to State B because if the countermeasures were to violate a legal obligation owed to a third State, State A could itself be in breach of international law. The wrongfulness of such a breach is not precluded by the validity of the countermeasure against the responsible State. Thus, State A could find itself in breach of its international law obligations.
Plea of necessity[edit | edit source]
Plea of necessity |
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The plea of necessity allows a State to act in exceptional cases when there is grave and imminent peril to an essential interest of the State and the action in question is the sole means of safeguarding that interest.[242] Even then, the plea of necessity requires that the injured State’s action be balanced with the interests of any States that would be affected and with those of the international community.[243] The injured State’s action must not seriously impair the essential interests of any other State.[244] The plea of necessity is not available to injured States that have substantially contributed to the situation in which they find themselves.[245] However, the plea of necessity can be asserted to take action against non-State actors and can justify actions that violate the rights of non-responsible States, if these conditions are met. In case the situation of necessity is caused by the conduct of non-State actors, attribution of this conduct to a State is not a precondition for acting based on the plea of necessity.
Publicly available national positions that address this issue include: (2024), (2019), (2021), (2021), (2019), (2021), (2022), (2021). |
[L27] A State’s “essential interest” is not clearly defined. It would certainly include healthcare, justice, and policing.[246] Thus, the ransomware attacks on healthcare service providers and police and court systems certainly impaired essential interests of State A. It is unlikely that the temporary interruption in functionality the ransomware caused was sufficient to put those essential interests in grave and imminent peril. It is also unlikely that no other means existed to safeguard those interests. In any case, the ransomware attacks have abated, if temporarily, and the plea of necessity could only be invoked to end the harmful activity.
Self-defence[edit | edit source]
Self-defence |
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A State may respond with force to a cyber operation that qualifies as an “armed attack” pursuant to the customary right to self-defence, as codified in Article 51 of the UN Charter. Most commentators consider only grave uses of force – typically, those that kill or injure persons or damage or destroy property – to constitute armed attacks.[247]
The United States, however, takes an outlier position, consistently arguing that any illegal use of force gives rise to the use of force in self-defence.[248] In Nicaragua, the ICJ identified “scale and effects” as criteria upon which to judge whether a use of force constitutes an armed attack. In the Court’s view, only “the most grave” uses of force do so.[249] Thus, only cyber operations that seriously injure or kill a number of persons or cause significant damage to, or destruction of, property would undoubtedly constitute armed attacks.[250] Publicly available national positions that address this issue include: (2020), (2024), (2021), (2022), (2023), (2021), (2020), (2019), (2021), (2020), (2023), (2020), (2021), (2021), (2019), (2020), (2021), (2022), (2021), (2022), (2021), (2018), (2021), (2012), (2020), (2021). |
[L28] The ransomware attacks did not amount to an armed attack. As discussed previously, the attacks were not even a use of force. Based on a consideration of following eight factors — severity, immediacy, directness, invasiveness, measurability of effects, military character, State involvement, and presumptive legality — the ransomware campaign is not at the level of a use of force (see above). Because the ransomware attacks failed to meet the criteria of use of force they could equally not amount to an armed attack triggering the right to self-defense. State A therefore has no right under international law to respond to the attacks with force.
Retorsion[edit | edit source]
Retorsion |
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An act of retorsion is “an unfriendly but nevertheless lawful act by the aggrieved party against the wrongdoer”.[251] Such acts may include the prohibition of or limitations upon normal diplomatic relations, the imposition of trade embargoes or the withdrawal of voluntary aid programmes.[252] Cyber-specific retorsions may include sending warnings to cyber operatives belonging to another State, observing the adversary’s cyber activities on one’s own network using tools such as “honeypots”, or slowing down malicious cyber operations conducted by other States.[253]
Publicly available national positions that address this issue include: (2023), (2024), (2021), (2021), (2019), (2020), (2021), (2022), (2021), (2021), (2022), (2016), (2021). |
[L29] Retorsion is the only way for State A to respond to the ransomware campaign without a determination that another State B has breached an international obligation owed to it. State A is likely to view State B’s refusal to extradite or prosecute the attack’s perpetrators as an unfriendly act. State A may signal its displeasure at State B’s unfriendly action through common methods of retorsion such as expelling State B’s diplomats or imposing financial sanctions on State B.
Checklist[edit | edit source]
- Can the ransomware attacks be attributed?
- Are the authors of the ransomware attack State organs or non-State organs exercising governmental authority?
- Are the authors of the ransomware attack non-State actors acting under the instructions or effective control of another State?
- Is the ransomware a use of force?
- What was the severity of the ransomware attacks?
- Did the effects of the ransomware attacks manifest immediately?
- Were the effects of the ransomware attacks directly connected to the underlying cyber activity?
- Did the ransomware attacks involve invasive penetration of top secret networks?
- Were the effects of the ransomware attacks measurable?
- Did the ransomware attacks have a military character?
- Was a State involved in carrying out or supporting the ransomware attacks?
- Are the ransomware attacks presumptively legal under international law?
- Is the ransomware a prohibited intervention?
- Did the ransomware campaign bear on the internal or external affairs of State A?
- Did the ransomware campaign coerce State A by depriving it of its freedom of choice concerning its internal or external affairs?
- Is the ransomware a violation of the targeted State’s sovereignty?
- Was the ransomware campaign conducted by a State organ of State B physically present on the territory of State A?
- Did the ransomware campaign result in physical damage or injury on State A’s territory?
- Did the ransomware campaign cause a loss of functionality of State A’s computer systems?
- Did the ransomware campaign interfere with State A’s inherently governmental functions?
- Due diligence
- If the ransomware attacks were committed by the territorial State, would they have violated a rule of international law?
- Did the territorial State have knowledge of the attacks?
- What responses are permissible?
- Is the object of countermeasures a State?
- Was an essential interest of the victim State in grave and imminent peril?
- Did the ransomware attacks constitute an armed attack, thus justifying resort to force in self-defense?
Appendixes[edit | edit source]
See also[edit | edit source]
- Attribution
- Countermeasures
- Due diligence
- Use of force
- Plea of necessity
- Prohibition of intervention
- Retorsion
- Self-defence
- Sovereignty
- Scenario 03: Cyber operation against the power grid
- Scenario 05: State investigates and responds to cyber operations against private actors in its territory
- Scenario 06: Cyber countermeasures against an enabling State
Notes and references[edit | edit source]
- ↑ ILC Articles on State Responsibility, Art 4(1).
- ↑ ILC Articles on State Responsibility, Art 5.
- ↑ ILC Articles on State Responsibility, Art 6.
- ↑ ILC Articles on State Responsibility, Art 7; Tallinn Manual 2.0, commentary to rule 15, paras. 6-7 and 12.
- ↑ ILC Articles on State Responsibility, Art 8; see also Kubo Mačák, ‘Decoding Article 8 of the International Law Commission’s Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors’ (2016) 21 JC&SL 405.
- ↑ Kubo Mačák, ‘Decoding Article 8 of the International Law Commission’s Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors’ (2016) 21 JCSL 405, 426–27.
- ↑ See: ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14, para 115; ICJ, Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, para 400.
- ↑ See Stefan Talmon, ‘The Responsibility of Outside Powers for Acts of Secessionist Entities’ (2009) 58(3) International and Comparative Law Quarterly 493, 503; Tomohiro Mikanagi and Kubo Mačák, ‘Attribution of cyber operations: an international law perspective on the Park Jin Hyok case’ (2020) 9(1) Cambridge International Law Journal 51, 63; See also Marco Roscini, Cyber Operations and the Use of Force in International Law (OUP 2014) 37-38.
- ↑ 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) 21.
- ↑ Government of the Kingdom of the Netherlands, Appendix: International law in cyberspace (26 September 2019) 6.
- ↑ 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) 71.
- ↑ Prosecutor v Tadić (Appeal Judgment) IT-94-1-A (ICTY, 15 July 1999) paras 116 and ff.
- ↑ ICRC (ed), Commentary to the First Geneva Gonvention (CUP 2016) para 409; ICRC (ed), Commentary to the Third Geneva Convention (CUP 2021) para 304
- ↑ Prosecutor v Prlić et al (Trial Judgment) IT-04-74-T (ICTY, 29 May 2013), para. 86(a); see also Kubo Mačák, ‘Decoding Article 8 of the International Law Commission’s Articles on State Responsibility: Attribution of Cyber Operations by Non-State Actors’ (2016) 21 JCSL 405, 422.
- ↑ Prosecutor v Tadić (Appeal Judgment) IT-94-1-A (ICTY, 15 July 1999) para 132; see also Antonio Cassese, ‘The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’ (2007) 18(4) EJIL 649, 657.
- ↑ ILC Articles on State Responsibility, Art 9.
- ↑ ILC Articles on State Responsibility, Art 10(1).
- ↑ ILC Articles on State Responsibility, Art 10(2).
- ↑ ILC Articles on State Responsibility, Art 11.
- ↑ ILC Articles on State Responsibility, Art 8.
- ↑ ILC Articles on State Responsibility, Art 11.
- ↑ Tallinn Manual 2.0, commentary to rule 17, para 16.
- ↑ Tallinn Manual 2.0, commentary to rule 17, para 18.
- ↑ Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16 (UN Charter) art. 2(4).
- ↑ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, para 87; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, paras 187–190. See also, the national positions of Brazil, Israel, Sweden, and the United States.
- ↑ See, for example,The International Law Commission, 'Document A/6309/ Rev.1: Reports of the International Law Commission on the second part of its seventeenth and on its eighteenth session' Yearbook of the International Law Commission Vol. II (1966) 247 (“The law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens”); Christine Gray, International Law and the use of force (OUP 2018) 32; Oliver Corten, The Law against War. The Prohibition on the Use of Force in Contemporary International Law (Hart Pub. 2021) 44; Oliver Dörr and Albrecgr Randelzhofer, ‘Article 2(4)’ in Bruno Simma et al (eds), The Charter of the United Nations: A Commentary Vol I (OUP 2012), 231, para 67 (“the prohibition of the use of force laid down in Art. 2 (4) is usually acknowledged in State practice and legal doctrine to have a peremptory character, and thus to be part of the international ius cogens”).
- ↑ Marco Roscini, Cyber Operations and the Use of Force in International Law (Oxford University Press 2014) 44.
- ↑ Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1. C.J. Reports 1996, 226; see also the national positions of Brazil, Germany, France, the Netherlands and Sweden.
- ↑ Oliver Dörr and Albrecht Randelzhofer, ‘Article 2(4)’ in Bruno Simma et al (eds), The Charter of the United Nations: A Commentary Vol I (OUP 2012) 208 para 16 (“The term [‘force’] does not cover any possible kind of force, but is, according to the correct and prevailing view, limited to armed force.”).
- ↑ Cf. Ian Brownlie, International Law and the Use of Force by States (OUP 1963) 362 (“[Art 2(4)] applies to force other than armed force”); Tallinn Manual 2.0, rule 69 (“A cyber operation constitutes a use of force when its scale and effects are comparable to non-cyber operations rising to the level of a use of force.”). This is also embodied in the national positions of several States, including Australia, Canada, Germany, Italy, the Netherlands, Romania and Sweden.
- ↑ See the national positions of Canada, Germany, Italy, the Netherlands, Romania, Sweden and the United States.
- ↑ Cf. Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16 (UN Charter) art. 2(4) (expressly prohibiting the use of force against the “political independence” of any State).
- ↑ Documents of the United Nations Conference on International Organization (1945), vol VI, 334. See also the national position of the Netherlands.
- ↑ Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16 (UN Charter) preamble.
- ↑ Cf. Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua) Judgment, 2009 ICJ Rep 213 [66] (“[W]here the parties have used generic terms in a treaty, the parties necessarily having been aware that the meaning of the terms was likely to evolve over time, and where the treaty has been entered into for a very long period or is ‘of continuing duration’, the parties must be presumed, as a general rule, to have intended those terms to have an evolving meaning”).
- ↑ Marco Roscini, Cyber Operations and the Use of Force in International Law (Oxford University Press 2014) 46-47. See the national positions of Australia, Germany, France, the Netherlands, Sweden, the United Kingdom and the United States. As highlighted by Roscini, other analytic approaches include an ‘instrument-based approach’ which focuses on the means used, and the ‘target-based approach’ which ‘argues that cyber operations reach the threshold of the use of armed force when they are conducted against national critical infrastructure’. On the latter, see for example Estonia’s national position, combining the target and the effects-based approaches in its assessment.
- ↑ Marco Roscini, Cyber Operations and the Use of Force in International Law (Oxford University Press 2014) 53. See also the national positions of Australia, Brazil, Estonia, Italy, Israel and the United States. Further, it has been argued that there is a minimum threshold of intensity or gravity in the use of force, for it to fall under Article 2(4) of the UN Charter. See Roscini, 53-54. See also in this regard, Tallinn Manual 2.0., commentary to rule 69, para 9(a).
- ↑ Marco Roscini, Cyber Operations and the Use of Force in International Law (OUP 2014) 55. See also ibid, 48 (noting that ‘the dependency of modern societies on computers, computer systems, and networks has made it possible to achieve analogous prejudicial results through other, non-destructive means’)
- ↑ However, such claims are occasionally made in the scholarship: see, for example, Marco Roscini, Cyber Operations and the Use of Force in International Law (OUP 2014) 59; Nicholas Tsagourias 'Cyber Attacks, Self-Defence and the Problem of Attribution' (2012) 17 (2) Journal of Conflict and Security Law 23; Gary Brown and Keira Poellet, ‘The Customary International Law of Cyberspace’ (2012) Strategic Studies Quarterly 137.
- ↑ Dan Efrony and Yuval Shany, ‘A Rule Book on the Shelf? Tallinn Manual 2.0 on Cyberoperations and Subsequent State Practice’ (2018) 112 AJIL 583, 638.
- ↑ French Ministry of the Armies, ‘International Law Applied to Operations in Cyberspace’ (9 September 2019) 7, stating that ‘France does not rule out the possibility that a cyberoperation without physical effects may also be characterised as a use of force’.
- ↑ Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019) 4, stating that ‘in the view of the government, at this time it cannot be ruled out that a cyber operation with a very serious financial or economic impact may qualify as the use of force’.
- ↑ 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) 69-70, stating that ‘Likewise, a cyber operation causing severe disruption to the functioning of the State such as the use of crypto viruses or other forms of digital sabotage against governmental or private power grid- or telecommunications infrastructure, or cyber operations leading to the destruction of stockpiles of Covid-19 vaccines, could amount to the use of force in violation of Article 2(4). Similarly, the use of crypto viruses or other forms of digital sabotage against a State’s financial and banking system, or other operations that cause widespread economic effects and destabilisation, may amount to the use of force in violation of Article 2(4)’.
- ↑ Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019) at p. 4.
- ↑ French Ministry of the Armies, ‘International Law Applied to Operations in Cyberspace’ (9 September 2019) 7.
- ↑ Tallinn Manual 2.0, commentary to rule 69, para 9. The indicative factors highlighted by the Manual are: (i) severity; (ii) immediacy; (iii) directness; (iv) invasiveness; (v) measurability of effects; (vi) military character; (vii) State involvement; and (viii) presumptive legality.
- ↑ Italian Ministry for Foreign Affairs and International Cooperation, ‘Italian position paper on “International law and cyberspace”’ (2021) 8. See also the national position of Israel, stating that ‘As with any legal assessment relating to the cyber domain, as practice in this field continues to evolve, there may be room to further examine whether operations not causing physical damage could also amount to use of force’.
- ↑ See Articles 39–42 of the UN Charter.
- ↑ See Article 51 of the UN Charter.
- ↑ See in this regard the national positions of Australia, the Netherlands and Romania.
- ↑ Cf. US, State Department Legal Advisor Brian Egan, International Law and Stability in Cyberspace, Speech at Berkeley Law School (10 November 2016), 13 (“In certain circumstances, one State’s non-consensual cyber operation in another State’s territory could violate international law, even if it falls below the threshold of a use of force.”) (emphasis original); UK, Attorney General Jeremy Wright QC MP, Cyber and International Law in the 21st Century, Speech (23 May 2018) (“In certain circumstances, cyber operations which do not meet the threshold of the use of force but are undertaken by one state against the territory of another state without that state’s consent will be considered a breach of international law.”); Government of the Kingdom of the Netherlands, Appendix: International law in cyberspace (26 September 2019) 4; 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) 77.
- ↑ Tallinn Manual 2.0, commentary to rule 69, para 9.
- ↑ Tallinn Manual 2.0, commentary to rule 69, para 9.
- ↑ Tallinn Manual 2.0, commentary to rule 69, para 9.
- ↑ Tallinn Manual 2.0, commentary to rule 69, para 9. Most scholars agree that peacetime espionage is not the breach of an international obligation, but several have disagreed. See, e.g., Ingrid Delupis, Foreign Warships and Immunity for Espionage, 78 AM. J. INT’L L. 53, 67 (1984) (reasoning that peacetime espionage is illegal under international law if it involves an intrusion of foreign territory); Manuel R. Garcia-Mora, Treason, Sedition and Espionage as Political Offenses Under the Law of Extradition, 26 U. PITT. L. REV. 65, 79–80 (1964) (labeling peacetime espionage “an international delinquency and violation of international law”); Quincy Wright, Legal Aspects of the U-2 Incident, 54 AM. J. INT’L L. 836, 849 (1960) (stating that peacetimeespionage is an “illegitimate enterprise[] because [it] manifest[s] a lack of respect for foreign territory”).
- ↑ Tallinn Manual 2.0, commentary to rule 69, para 9.
- ↑ The customary nature has been highlighted by several States, including Australia, Brazil, Germany, Iran, Norway, Sweden, the United Kingdom and the United States.
- ↑ 58.0 58.1 58.2 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) [1986] ICJ Rep 14 [205].
- ↑ 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).
- ↑ 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.
- ↑ Militarv and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Merits, Judgment. I.C.J. Reports 1986, 14 [241].
- ↑ 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.
- ↑ 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.
- ↑ 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].
- ↑ 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.
- ↑ 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.’).
- ↑ 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.
- ↑ 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.’).
- ↑ 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.
- ↑ Tallinn Manual 2.0, commentary to rule 66, para 21. See also the national positions of Canada, Germany and Norway.
- ↑ Tallinn Manual 2.0, commentary to rule 66, paras 19 and 27. See also the national positions of Germany, New Zealand and Sweden.
- ↑ 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.
- ↑ See Harriet Moynihan, The Application of International Law to State Cyberattacks Sovereignty and Non-Intervention (Chatham House, 2 December 2019) para 82.
- ↑ 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’).
- ↑ Australian Government, Australia's position on how international law applies to State conduct in cyberspace (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) 19.
- ↑ Government of Canada, International Law applicable in cyberspace (April 2022)
- ↑ Federal Government of Germany, ‘On the Application of International Law in Cyberspace’, Position Paper (March 2021) 5-6.
- ↑ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations (8 December 2020).
- ↑ New Zealand Foreign Affairs and Trade, The Application of International Law to State Activity in Cyberspace (1 December 2020) 2.
- ↑ 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.
- ↑ 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.
- ↑ 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.
- ↑ 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.
- ↑ See the national positions of Canada, Romania, Sweden and Switzerland.
- ↑ 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.
- ↑ Tallinn Manual 2.0, commentary to rule 66, para 24 (the exact nature of the causal nexus was not agreed on).
- ↑ 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’).
- ↑ For the provision of medical care, see national positions of Italy, Japan, New Zealand and the United Kingdom.
- ↑ Tallinn Manual 2.0, commentary to rule 66, para 24.
- ↑ Island of Palmas (Neth. v. U.S.), 2 RIAA 829, 838 (Perm. Ct. Arb. 1928).
- ↑ UNGA Res 71/237 (30 December 2015) UN Doc A/RES/20/237.
- ↑ 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).
- ↑ 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).
- ↑ 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.
- ↑ 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.
- ↑ 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).
- ↑ 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’).
- ↑ 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’.
- ↑ 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.
- ↑ Government of Canada, International Law applicable in cyberspace (April 2022) para 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.’
- ↑ 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.
- ↑ 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.’
- ↑ 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’.
- ↑ 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’.
- ↑ 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.’).
- ↑ Italian Ministry for Foreign Affairs and International Cooperation, ‘Italian position paper on “International law and cyberspace”’ (2021) 4.
- ↑ Ministry of Foreign Affairs of Japan, ‘Basic Position of the Government of Japan on International Law Applicable to Cyber Operations’ (16 June 2021) 3.
- ↑ 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’.
- ↑ New Zealand Foreign Affairs and Trade, ‘The Application of International Law to State Activity in Cyberspace’ (1 December 2020) 2.
- ↑ 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.
- ↑ 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.
- ↑ Government Offices of Sweden, ‘Position Paper on the Application of International Law in Cyberspace’ (July 2022) 2.
- ↑ 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’).
- ↑ 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.
- ↑ 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’.
- ↑ Cf. James Crawford, Brownlie's Principles of Public International Law (OUP 2012) 448.
- ↑ Tallinn Manual 2.0, rule 2.
- ↑ 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.
- ↑ Tallinn Manual 2.0., commentary to rule 4, para 5. See also the national positions of Norway, Sweden and Switzerland.
- ↑ Tallinn Manual 2.0., rule 3; see also the national positions of the Czech Republic, the Netherlands and Norway.
- ↑ 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.
- ↑ 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.
- ↑ 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.
- ↑ Michael Schmitt, ‘Sovereignty, Intervention, and Autonomous Cyber Capabilities’ (2020) 96 International Law Studies 549.
- ↑ Tallinn Manual 2.0, commentary to rule 4, para 5 and 12.
- ↑ See e.g. the national position of Canada, Finland, New Zealand, Norway, Sweden and Switzerland.
- ↑ 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.
- ↑ 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.
- ↑ Tallinn Manual 2.0, commentary to rule 4, para 11.
- ↑ Tallinn Manual 2.0, commentary to rule 4, para 12.
- ↑ 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.
- ↑ Tallinn Manual 2.0, commentary to rule 4, para 14.
- ↑ Tallinn Manual 2.0, commentary to rule 4, para 15.
- ↑ 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.
- ↑ Tallinn Manual 2.0, commentary to rule 4, para 18.
- ↑ Government of Canada, International Law applicable in cyberspace (April 2022) para 13.
- ↑ Germany, ‘On the Application of International Law in Cyberspace: Position Paper’ (March 2021), p. 4.
- ↑ Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019), p. 3.
- ↑ Richard Kadlčák, Statement of the Special Envoy for Cyberspace and Director of Cybersecurity Department of the Czech Republic (11 February 2020) 3.
- ↑ 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.
- ↑ Government Offices of Sweden, Position Paper on the Application of International Law in Cyberspace (July 2022) 2
- ↑ Federal Department of Foreign Affairs, ‘Switzerland's position paper on the application of international law in cyberspace’ (May 2021) 3.
- ↑ Ministry of Defense of France, 'International Law Applied to Operations in Cyberspace' (9 September 2019) 6.
- ↑ 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’).
- ↑ 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’).
- ↑ Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4, 22.
- ↑ UN GA Res 55/63 (4 December 2000), Doc A/RES/55/63, para 1(a).
- ↑ Cf. UN GGE 2015 report, paras 13(c) and 28(e) (using non-mandatory language to express the due diligence principle in the cyber context: “States should not knowingly allow their territory to be used for internationally wrongful acts using [cyber means]” and “States ... should seek to ensure that their territory is not used by non-State actors to commit such acts”, respectively) (emphases added); See also UN Group of Governmental Experts on Advancing Responsible State Behaviour in Cyberspace in the Context of International Security, A/76/135 (14 July 2021) paras 29-30.
- ↑ Dapo Akande, Antonio Coco and Talita de Souza Dias, ‘Old Habits Die Hard: Applying Existing International Law in Cyberspace and Beyond’, EJIL Talk! (5 January 2021)
- ↑ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations (8 December 2020) 403-4. The position states that "we have not seen widespread State practice beyond this type of voluntary cooperation, and certainly not practice grounded in some overarching opinio juris, which would be indispensable for a customary rule of due diligence, or something similar to that, to form".
- ↑ New Zealand Foreign Affairs and Trade, ‘The Application of International Law to State Activity in Cyberspace’ (1 December 2020) 3. According to the position, "An agreed norm of responsible state behaviour provides that states should not knowingly allow their territory to be used for internationally wrongful acts using ICTs. Whether this norm also reflects a binding legal obligation is not settled".
- ↑ United Kingdom Foreign, Commonwealth & Development Office, ‘Application of international law to states’ conduct in cyberspace: UK statement’ (3 June 2021) para 12. According to the position: "the fact that States have referred to this as a non-binding norm indicates that there is not yet State practice sufficient to establish a specific customary international law rule of ‘due diligence’ applicable to activities in cyberspace".
- ↑ Government of Canada, International Law applicable in cyberspace (April 2022) para. 26. According to the position, this does not "precludes the recognition of a binding legal rule of due diligence under customary international law. Canada continues to study this matter".
- ↑ See Luke Chircop, ‘A Due Diligence Standard of Attribution in Cyberspace’ (2018) 67 ICLQ 643.
- ↑ See also Tallinn Manual 2.0, commentary to rule 6, para 4 (unanimously endorsing this view).
- ↑ Australia, ‘Australia’s International Cyber Engagement Strategy - Annex A: Australia’s Position on How International Law Applies to State Conduct in Cyberspace’ (October 2017) 91, stating that “if a state is aware of an internationally wrongful act originating from or routed through its territory, and it has the ability to put an end to the harmful activity, that state should take reasonable steps to do so consistent with international law”.
- ↑ Czech Republic, Comments submitted by the Czech Republic in reaction to the initial “pre-draft” report of the Open-Ended Working Group on developments in the field of information and telecommunications in the context of international security (undated), stating that “ICT-specific norms reflect a general principle of international law obliging States to ensure that territory and objects over which they enjoy sovereignty are not used to harm other States’ rights.”
- ↑ Estonia, ‘President of the Republic at the opening of CyCon 2019’ (29 May 2019), stating that “states have to make reasonable efforts to ensure that their territory is not used to adversely affect the rights of other states.”
- ↑ Finland, ‘Statement by Ambassador Janne Taalas at the second session of the open-ended Working Group (OEWG) on developments in the field of information and telecommunications in the context of international security’ (11 February 2020), stating that “States have an obligation not to knowingly allow their territory to be used for activities that cause serious harm to other States, whether using ICTs or otherwise.”
- ↑ French Ministry of the Armies, ‘International Law Applied to Operations in Cyberspace’ (9 September 2019) 6, stating that “In compliance with the due diligence requirement, [France] ensures that its territory is not used for internationally wrongful acts using ICTs. This is a customary obligation for States, which must (i) use cyberspace in compliance with international law, and in particular not use proxies to commit acts which, using ICTs, infringe the rights of other States, and (ii) ensure that their territory is not used for such purposes, including by non-state actors.”
- ↑ Federal Government of Germany, ‘On the Application of International Law in Cyberspace’, Position Paper (March 2021) 3.
- ↑ Italian Ministry for Foreign Affairs and International Cooperation, ‘Italian position paper on International law and cyberspace’ (2021) 6-7.
- ↑ Ministry of Foreign Affairs of Japan, ‘Basic Position of the Government of Japan on International Law Applicable to Cyber Operations’ (28 May 2021) 5.
- ↑ Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019), stating that ‘The Netherlands ... does regard the principle [of due diligence] as an obligation in its own right, the violation of which may constitute an internationally wrongful act.’
- ↑ ‘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) 71-2.
- ↑ Federal Department of Foreign Affairs, ‘Switzerland's position paper on the application of international law in cyberspace’ (May 2021) 7.
- ↑ Government Offices of Sweden, ‘Position Paper on the Application of International Law in Cyberspace’ (July 2022) 4.
- ↑ Tallinn Manual 2.0, commentary to rule 6, para 5.
- ↑ Cf. Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgement) [2007] ICJ Rep 43, para 430; see further James Crawford, State Responsibility: The General Part (CUP 2013) 226–32 (on the distinction between due diligence and obligations of prevention); Rudiger Wolfrum, ‘Obligation of Result Versus Obligation of Conduct: Some Thoughts About the Implementation of International Obligations’ in Mahnoush H Arsanjani et al, Looking to the Future: Essays on International Law in Honor of Michael Reisman (Brill 2010).
- ↑ While, in general, it is States, not individuals or private entities, which are able to violate international law, cyber operations carried out by individuals or private entities that nevertheless result in serious adverse consequences fall within a State’s due diligence obligation. See Tallinn Manual 2.0, commentary to rule 6, para 21.
- ↑ Corfu Channel judgment, para 22; Tallinn Manual 2.0, commentary to rule 6, para 2 and 15.
- ↑ Tallinn Manual 2.0, rule 6.
- ↑ Tallinn Manual 2.0, commentary to rule 6, para 18-24.
- ↑ Tallinn Manual 2.0, rule 6.
- ↑ Tallinn Manual 2.0, commentary to rule 6, para 37-42.
- ↑ Tallinn Manual 2.0, commentary to rule 6, para 43; commentary to rule 7, para 2 and 18.
- ↑ Tallinn Manual 2.0, commentary to rule 6, para 7.
- ↑ Tallinn Manual 2.0, commentary to rule 6, para 21.
- ↑ Tallinn Manual 2.0, commentary to rule 6, para 28.
- ↑ Tallinn Manual 2.0, commentary to rule 6, para 39.
- ↑ ILC Articles on State Responsibility, Commentary, part 3 ch 2 at para 1.
- ↑ Australian Government, Australia's position on how international law applies to State conduct in cyberspace (2020).
- ↑ 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. A target State may also react through proportionate countermeasures.’ (emphasis added).
- ↑ Government of Canada, International Law applicable in cyberspace (April 2022) para 34.
- ↑ Estonia, ‘President of the Republic at the opening of CyCon 2019’ (29 May 2019), stating that “states have the right to react to malicious cyber operations, including using diplomatic response but also countermeasures”
- ↑ French Ministry of the Armies, ‘International Law Applied to Operations in Cyberspace’ (9 September 2019) 6, stating that ‘In response to a cyberattack, France may consider diplomatic responses to certain incidents, countermeasures, or even coercive action by the armed forces if an attack constitutes armed aggression.’
- ↑ Germany, ‘Statement by Ambassador Dr Thomas Fitschen, Director for the United Nations, Cyber Foreign Policy and Counter-Terrorism, Federal Foreign Office of Germany’ (November 2018) 3, stating that ‘in case of a cyber operation that is in breach of an international legal obligation below the level of the use or threat of force prohibited by Art. 2 (IV) [of the UN Charter] States are also entitled to take countermeasures as allowed by international law.’
- ↑ Italian Ministry for Foreign Affairs and International Cooperation, 'Italian position paper on "International law and cyberspace"' (2021) 7-8.
- ↑ Japan, ‘Japan’s Position Paper for the Report of the United Nations Open-Ended Working Group on “Developments in the Field of Information and Telecommunications in the Context of International Security”’ (undated), stating that ‘Japan recognizes that basic rules on State responsibility including those on countermeasures applies to cyberspace.’
- ↑ Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019) 7.
- ↑ New Zealand Foreign Affairs and Trade, The Application of International Law to State Activity in Cyberspace (1 December 2020) 3-4.
- ↑ 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) 72-73.
- ↑ 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) 84.
- ↑ Government Offices of Sweden, Position Paper on the Application of International Law in Cyberspace (July 2022) 6.
- ↑ United Kingdom, ‘Statement on Other Disarmament Measures and International Security to the 72nd UNGA First Committee’ (23 October 2017), stating that ‘We reaffirm that the law of state responsibility applies to cyber operations in peacetime, including the availability of the doctrine of countermeasures in response to internationally wrongful acts.’
- ↑ Brian J. Egan, ‘Remarks on International Law and Stability in Cyberspace’ (10 November 2016), stating that countermeasures are available ‘to address malicious cyber activity’ if that activity amounts to a prior internationally wrongful act attributable to another State.
- ↑ Brazil, ‘Open-ended Working Group on developments in the field of information and telecommunications in the context of international security: Second Substantive Session - New York, 11 February 2020: Statement by the Delegation of Brazil’ (11 February 2020), stating that ‘In the case of malicious acts in cyberspace, it is often difficult to attribute responsibility to a particular State or actor with unqualified certainty. A decision to resort to countermeasures in response to such acts carries a high risk of targeting innocent actors, and of triggering escalation.’
- ↑ China, ‘Statement by the Chinese Delegation at the Thematic Debate of the First Committee of the 72th UNGA’ (October 2017), stating that ‘Countries should discuss application of international law in the manner conducive to maintain peace, avoid introducing force, deterrence and countermeasures into cyberspace, so as to prevent arms race in cyberspace and reduce risks of confrontation and conflicts.’
- ↑ Cuba, ‘Declaration by Miguel Rodríguez, Representative of Cuba, at the Final Session of Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security’ (23 June 2017), registering ‘serious concern over the pretension of some, reflected in para 34 of the draft final report, to convert cyberspace into a theater of military operations and to legitimize, in that context, unilateral punitive force actions, including the application of sanctions and even military action by States claiming to be victims of illicit uses of ICTs.’ (emphasis added).
- ↑ ILC Articles on State Responsibility, Art 49 para 1; Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) 1997 ICJ Rep 7, para 83.
- ↑ ILC Articles on State Responsibility, Art 52 para 1 subpara a). According to the UK Attorney General, the UK does not feel legally obliged, when taking countermeasures in response to a covert cyber intrusion, to “give prior notification to the hostile state”. UK Attorney General, Jeremy Wright QC MP, ‘Cyber and International Law in the 21st Century’.
- ↑ ILC Articles on State Responsibility, Art 28-41; the list of consequences includes (i) continued duty of performance, (ii) cessation and non-repetition, (iii) reparation, and (iv) particular consequences of a serious breach of obligations under peremptory norms of general international law.
- ↑ ILC Articles on State Responsibility, Art 52 para 1 subpara b) – Art 52 para 2.
- ↑ Government of Canada, International Law applicable in cyberspace (April 2022).
- ↑ Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations (8 December 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) 72-73.
- ↑ UK Attorney General, Jeremy Wright QC MP, ‘Cyber and International Law in the 21st Century’ (2018); United Kingdom Foreign, Commonwealth & Development Office, Application of international law to states’ conduct in cyberspace: UK statement (3 June 2021).
- ↑ Hon Paul C Ney, Jr., DOD General Counsel Remarks at U.S. Cyber Command Legal Conference (2 March 2020).
- ↑ See also Tallinn Manual 2.0, commentary to rule 21, paras 10–12.
- ↑ ILC Articles on State Responsibility, Art 49(1); Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) 1997 ICJ Rep 7, para 87. The list of consequences in Art 28-41 includes (i) continued duty of performance, (ii) cessation and non-repetition, (iii) reparation, and (iv) particular consequences of a serious breach of obligations under peremptory norms of general international law.
- ↑ ILC Articles on State Responsibility, Art 49(3).
- ↑ The position of the ILC has been followed by States in their national positions, including Australia, Brazil, Canada, Finland, France, Italy, the Netherlands, New Zealand, Norway, Russia, Sweden, Switzerland and the UK. For an alternative view on “forcible countermeasures” see Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment, I.C.J. Reports 2003, 16, Separate Opinion of Judge Simma [12 and ff].
- ↑ ILC Articles on State Responsibility, Art 50(1).
- ↑ ILC Articles on State Responsibility, Art 50(2).
- ↑ Articles on State Responsibility, Art 51; Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) 1997 ICJ Rep 7, para 85.
- ↑ See ILC Articles on State Responsibility, part 3, para 5; see also Tallinn Manual 2.0, commentary to rule 23, para 7.
- ↑ Government of Canada, International Law applicable in cyberspace (April 2022).
- ↑ Federal Government of Germany, ‘On the Application of International Law in Cyberspace’, Position Paper (March 2021) 13-14.
- ↑ Italian Ministry for Foreign Affairs and International Cooperation, ‘Italian position paper on "International law and cyberspace"’ (2021) 7-8.
- ↑ Ministry of Foreign Affairs of Japan, Basic Position of the Government of Japan on International Law Applicable to Cyber Operations (16 June 2021) 4-5.
- ↑ 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) 72-73.
- ↑ Government Offices of Sweden, Position Paper on the Application of International Law in Cyberspace (July 2022) 6.
- ↑ Federal Department of Foreign Affairs, ‘Switzerland's position paper on the application of international law in cyberspace’ (May 2021) 6-7.
- ↑ Attorney General Jeremy Wright, Cyber and International Law in the 21st Century (23 May 2018); Attorney General Suella Braverman, International Law in Future Frontiers (19 May 2022).
- ↑ Brian J Egan, International Law and Stability in Cyberspace (10 November 2016) 21-22; Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 142.
- ↑ ILC Articles on State Responsibility, Art 52(3).
- ↑ ILC Articles on State Responsibility, Art 52(4).
- ↑ ILC Articles on State Responsibility, Art 53.
- ↑ ILC Articles on State Responsibility, Art 54. In the cyber context, scholarship supportive of notion of collective countermeasures includes Michael N Schmitt, ‘Estonia Speaks Out on Key Rules for Cyberspace’ (Just Security, 10 June 2019), considering the Estonian interpretation to be “an advantageous development in the catalogue of response options that international law provides to deal with unlawful acts”; see also Michael N Schmitt and Sean Watts, ‘Collective Cyber Countermeasures?’ (2021) 12 Harvard National Security Journal 373. Conversely, scholarship that has rejected this notion includes Jeff Kosseff, ‘Collective Countermeasures in Cyberspace’ (2020) 10(1) Notre Dame Journal of International & Comparative Law 18, 34; François Delerue, Cyber Operations and International Law (CUP 2020), 457.
- ↑ President of Estonia, Kersti Kaljulaid, ‘President of the Republic at the opening of CyCon 2019’ (29.05.2019); see also 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) 28.
- ↑ New Zealand Foreing Affairs and Trade, The Application of International Law to State Activity in Cyberspace (1 December 2020) 3-4.
- ↑ Michael Schmitt, Three International Law Rules for Responding Effectively to Hostile Cyber Operations (Just Security, 31 July 2021)
- ↑ French Ministry of the Armies, International Law Applied to Operations in Cyberspace (9 September 2019) 10, arguing that collective countermeasures are not authorised under international law.
- ↑ Government of Canada, International Law applicable in cyberspace (April 2022) para 37.
- ↑ ILC Articles on State Responsibility, Commentary in Part 3, Chapter 2 on Art 49, para 3.
- ↑ ILC Articles on State Responsibility, Commentary to Part One, Chapter 5, para 8 (noting that “[i]n a bilateral dispute over State responsibility, the onus of establishing responsibility lies in principle on the claimant State”).
- ↑ See, eg, Trail Smelter case (United States v Canada) (Award) 1941 3 RIAA 1905, 1965; see also Robin Geiss and Henning Lahmann, ‘Freedom and Security in Cyberspace: Shifting the Focus Away from Military Responses Towards Non-Forcible Countermeasures and Collective Threat-Prevention’ in Katharina Ziolkowski (ed), Peacetime Regime for State Activities in Cyberspace (NATO CCD COE 2013) 624 (noting that in cases where State responsibility is involved, the required threshold tends to shift towards ‘clear and convincing’”).
- ↑ James Green, ‘Fluctuating Evidentiary Standards for Self-Defence in the International Court of Justice’ (2009) 58 ICLQ 163, 167 (emphasis original).
- ↑ ILC Articles on State Responsibility, Commentary in Part 3, Chapter 2 on Art 49 para 3.
- ↑ ILC Articles on State Responsibility, Art 25(1)(a).
- ↑ ILC Articles on State Responsibility, Art 25(1)(b).
- ↑ ILC Articles on State Responsibility, Art 25(1)(b).
- ↑ ILC Articles on State Responsibility, Art 25(1)(b).
- ↑ Tallinn Manual 2.0, commentary to rule 26, para 2.
- ↑ Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, para 95.
- ↑ US Department of Defense, Office of the General Counsel, Law of War Manual (June 2015), paras. 1.11.5.2, 16.3.3.1.
- ↑ Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, para 191.
- ↑ Tallinn Manual 2.0, commentary to rule 71, para 8.
- ↑ E Zoller, Peacetime Unilateral Remedies: An Analysis of Countermeasures (Transnational 1984) 5.
- ↑ Articles on State Responsibility, commentary to Part Three, Chapter II, para. 3.
- ↑ Jeff Kosseff, ‘Retorsion as a Response to Ongoing Cyber Operations’ in Taťána Jančárková et al (eds), 20/20 Vision: The Next Decade (CCD COE 2020) 17–22.
Bibliography and further reading[edit | edit source]
- William Banks, State Responsibility and Attribution of Cyber Intrusions After Tallinn 2.0, 95 Tex. L. Rev. 1487 (2017)
- Luke Chircop, ‘A Due Diligence Standard of Attribution in Cyberspace’ (2018) 67 ICLQ.
- James Crawford, State Responsibility: The General Part (CUP 2013).
- Dan Efrony and Yuval Shany, 'A Rule Book on the Shelf? Tallinn Manual 2.0 on Cyberoperations and Subsequent State Practice' (2018) 112 AJIL.
- Robin Geiss and Henning Lahmann, ‘Freedom and Security in Cyberspace: Shifting the Focus Away from Military Responses Towards Non-Forcible Countermeasures and Collective Threat-Prevention’ in Katharina Ziolkowski (ed), Peacetime Regime for State Activities in Cyberspace (NATO CCD COE 2013).
- ET Jensen and S Watts, ‘A Cyber Duty of Due Diligence: Gentle Civilizer or Crude Destabilizer’ (2017) 95 Tex. L. Rev. 1555
- Christian Payne & Lorraine Finlay, Addressing Obstacles to Cyber-Attribution, 49 Geo. Wash. Int’l L. Rev. 535 (2017).
- Marco Roscini, Cyber Operations and the Use of Force in International Law (OUP 2014).
- Michael N. Schmitt, ‘“Below the Threshold” Cyber Operations: The Countermeasures Response Option and International Law’, 54 Va. J. Int’l L. 697 (2014).
- Michael N Schmitt (ed), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (CUP 2017).
- US Department of Defense, Office of the General Counsel, Law of War Manual (June 2015)
Contributions[edit | edit source]
- Scenario by: Kenneth Kraszewski
- Analysis by: Kenneth Kraszewski
- Reviewed by: Anna-Maria Osula, Peter Stockburger, David Wallace
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