16 April 2020 cyber activity. The way forward is for States to publicly articulate views on international law’s application and act consistently with those positions (in both responsible use of ICTs and responses to irresponsible uses of ICTs). If States are committed, this process could quickly deliver clarity and deepen common understandings on key questions of how international law applies to state conduct in cyberspace as well as contributing to the development of applicable customary international law. This path aims to avoid the protracted negotiations necessitated by the second path and the risk of erosion of the full suite of rights, obligations and protections afforded by existing international law. The second path to resolving the question of ‘how’ international law applies is premised on the basis that new international laws are required. In any event, many delegations supporting the second path acknowledged that articulating views on international law’s application (i.e. the first path) would provide the foundations for – and therefore necessarily precede – the second path. C3. As discussed in paragraph Y1, while preferable for the Report to reflect only consensus reached during discussions, should there be support for the Report to also serve as a record of discussions, it should more clearly articulate both paths (para. 26 cf: paras. 27-29), and note that contested issues (see, eg: para. 27) could be resolved under either path. In that instance, the Report should also reflect that, regardless of the path taken, the first step towards both paths is for States to develop and share national views on how existing international law applies (para. 30). C4. In the context of state responsibility (para. 24), the Report should make clear that the customary international law on state responsibility provides that a State will be responsible for an internationally wrongful act where there is conduct that is attributable to it and that conduct constitutes a breach of its international obligations. The Report should make the distinction between different attribution assessments, including factual attribution assessments (which includes an assessment of technical and other contextual information) and legal attribution assessments (where there has been a breach of international law and/or domestic law), as well as the political decision to act – publicly or privately – on those attribution assessments. It may be more appropriate for this observation to be included in the section on Rules, Norms and Principles of Responsible State Behaviour (referencing norm 13(b) from the 2015 GGE report). C5. Strongly support the text in the Pre-draft on international humanitarian law (IHL) (para. 25). To further emphasise that international law ensures predictability and stability, and that IHL does not encourage militarisation of cyberspace or legitimise conflict, the text emphasising UN Charter obligations (such as settlement of disputes by peaceful means and refraining from the use of force (currently para. 32)) should immediately precede the text on IHL (currently para. 25). Page 3 of 9 www.dfat.gov.au/cyberaffairs