State responsibility: Difference between revisions
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state constitutes an internationally wrongful act, unless there is a ground for precluding the wrongfulness of an act recognised in international law’); United Kingdom, ‘[https://www.un.org/disarmament/wp-content/uploads/2018/11/statement-by-united-kingdom-of-great-britain-and-northern-ireland-72-dmis.pdf Statement on Other Disarmament Measures and International Security to the 72nd UNGA First Committee]’ (23 October 2017) (‘We reaffirm that the law of state responsibility applies to cyber operations in peacetime’).</ref> |
state constitutes an internationally wrongful act, unless there is a ground for precluding the wrongfulness of an act recognised in international law’); United Kingdom, ‘[https://www.un.org/disarmament/wp-content/uploads/2018/11/statement-by-united-kingdom-of-great-britain-and-northern-ireland-72-dmis.pdf Statement on Other Disarmament Measures and International Security to the 72nd UNGA First Committee]’ (23 October 2017) (‘We reaffirm that the law of state responsibility applies to cyber operations in peacetime’).</ref> |
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Every internationally wrongful act of a State has two elements: 1) attributability to the State under international law, and 2) breach of an international obligation of the State.<ref>Articles on State Responsibility, Art 2.</ref>Besides these two elements, it is necessary to ascertain whether the act in question involved any 3) circumstances precluding wrongfulness.<ref>Articles on State Responsibility, Arts 20-26.</ref> |
Every internationally wrongful act of a State has two elements: 1) attributability to the State under international law, and 2) breach of an international obligation of the State.<ref>Articles on State Responsibility, Art 2.</ref>Besides these two elements, it is necessary to ascertain whether the act in question involved any 3) circumstances precluding wrongfulness.<ref>Articles on State Responsibility, Arts 20-26.</ref> |
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Revision as of 13:31, 6 September 2021
Definition
| State responsibility |
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 Every internationally wrongful act of a State has two elements: 1) attributability to the State under international law, and 2) breach of an international obligation of the State.[5]Besides these two elements, it is necessary to ascertain whether the act in question involved any 3) circumstances precluding wrongfulness.[6] |
National positions
Australia
Estonia
Finland
France
Japan
New Zealand
Switzerland
United Kingdom
"There are obviously practical difficulties involved in making any attributions of responsibilities when the action concerned is capable of crossing traditional territorial boundaries and sophisticated techniques are used to hide the identity and source of the operation. Those difficulties are compounded by the ready accessibility of cyber technologies and the resultant blurring of lines between the actions of governments and those of individuals.
The international law rules on the attribution of conduct to a state are clear, set out in the International Law Commissions Articles on State Responsibility, and require a state to bear responsibility in international law for its internationally wrongful acts, and also for the acts of individuals acting under its instruction, direction or control."[7]
United Kingdom: 2021
"A State is responsible under international law for cyber activities that are attributable to it in accordance with the rules on State responsibility. The responsibility of a State for activities that occur on its territory including in relation to activities in cyberspace is therefore determined in accordance with the rules of international law on State responsibility."[8]
United States of America: 2012
United States of America: 2016
"From a legal perspective, the customary international law of state responsibility supplies the standards for attributing acts, including cyber acts, to States. For example, cyber operations conducted by organs of a State or by persons or entities empowered by domestic law to exercise governmental authority are attributable to that State, if such organs, persons, or entities are acting in that capacity.
Additionally, cyber operations conducted by non-State actors are attributable to a State under the law of state responsibility when such actors engage in operations pursuant to the State’s instructions or under the State’s direction or control, or when the State later acknowledges and adopts the operations as its own.
Thus, as a legal matter, States cannot escape responsibility for internationally wrongful cyber acts by perpetrating them through proxies. When there is information — whether obtained through technical means or all-source intelligence — that permits a cyber act engaged in by a non-State actor to be attributed legally to a State under one of the standards set forth in the law of state responsibility, the victim State has all of the rights and remedies against the responsible State allowed under international law.
The law of state responsibility does not set forth explicit burdens or standards of proof for making a determination about legal attribution. In this context, a State acts as its own judge of the facts and may make a unilateral determination with respect to attribution of a cyber operation to another State. Absolute certainty is not—and cannot be—required. Instead, international law generally requires that States act reasonably under the circumstances when they gather information and draw conclusions based on that information.
I also want to note that, despite the suggestion by some States to the contrary, there is no international legal obligation to reveal evidence on which attribution is based prior to taking appropriate action. There may, of course, be political pressure to do so, and States may choose to reveal such evidence to convince other States to join them in condemnation, for example. But that is a policy choice—it is not compelled by international law."[9]
Appendixes
See also
Notes and references
- ↑ James Crawford, “State Responsibility”, in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2008), para 1.
- ↑ Draft Articles on the Responsibility of States for Internationally Wrongful Acts, prepared by the International Law Commission and approved by the General Assembly resolution 56/83 of 12 December 2001.
- ↑ James Crawford, “State Responsibility”, in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2008), para 65.
- ↑ UN GGE 2015 'Report of the Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security report' (22 July 2015) UN Doc A/70/174, para 28(f); Tallinn Manual 2.0, commentary to rule 14, para 1. See also, e.g., 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) (‘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) 1 (‘Any violation of [obligations under international law that apply to states in cyberspace] that is attributable to a state constitutes an internationally wrongful act, unless there is a ground for precluding the wrongfulness of an act recognised in international law’); United Kingdom, ‘Statement on Other Disarmament Measures and International Security to the 72nd UNGA First Committee’ (23 October 2017) (‘We reaffirm that the law of state responsibility applies to cyber operations in peacetime’).
- ↑ Articles on State Responsibility, Art 2.
- ↑ Articles on State Responsibility, Arts 20-26.
- ↑ 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
- ↑ Brian J. Egan, International Law and Stability in Cyberspace, 10 November 2016 17-20.