Australia’s submission on international law to be annexed to the report of the 2021 Group of Governmental Experts on Cyber Australia welcomes the opportunity to submit its national contribution on the subject of how international law applies to the use of information and communications technologies (ICT) by States as an annex to the report of the UN Group of Governmental Experts, as requested by the UN General Assembly in Resolution 73/266 (2019). The international community recognises that existing international law – and in particular the UN Charter in its entirety – is applicable to State conduct in cyberspace and is essential to maintaining peace and stability and promoting an open, secure, peaceful and accessible ICT environment. This is reflected in the 2013 and 2015 reports of the UN Group of Governmental Experts on Cyber (UN GGE) and the 2021 report of the UN Open Ended Working Group on Cyber (UN OEWG). The 2021 OEWG Report called upon States to avoid and refrain from taking any measures not in accordance with international law, and in particular the Charter of the United Nations, and concluded that further common understandings need to be developed on how international law applies to State use of ICTs. A key part of the mandate of the GGE – including through these annexed national contributions – is to continue to study how international law applies to the use of ICTs by States. This question is a subject of ongoing consideration by States individually and collectively through the UN and other multilateral forums. Deepening our understanding of how international law applies is an iterative process, involving States forming national views and exchanging positions. Through internal consideration and international exchanges, States are building a deeper, clearer and more practical understanding of how international law applies to State behaviour in cyberspace. Even where views differ, developing understandings of respective States’ positions may increase predictability and reduce the risk of miscalculation, which can lead to escalation in State conduct. The contributions of States represented through experts as part of this GGE are an important part of this process and will be a valuable resource for the international community on key questions of how international law applies in cyberspace. In 2020, Australia also submitted a non-paper to the UN OEWG on Cyber containing a series of case studies on the application of international law in cyberspace. The case studies seek to demonstrate that existing treaties and customary international law provide a comprehensive and robust framework to address the threats posed by state-generated or sponsored malicious cyber activity. In particular, international law provides victim States with a ‘tool kit’ to identify breaches of international legal obligations, attribute those acts to the responsible State, seek peaceful resolution of disputes and, where the victim State deems appropriate, take lawful measures in response. In this way, the application of existing international law to cyberspace can enhance international peace and security by increasing the predictability of State behaviour, reducing the possibility of conflict, minimising escalation and preventing misattribution. The case studies are annexed to this submission and should be read in conjunction with it. It is important to recognise that international law is most effective when States implement and adhere to their international legal obligations and, where necessary, cooperate to uphold international law and ensure accountability for violations. 1 www.internationalcybertech.gov.au

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