States should exercise due care to ensure that the IT infrastructure located within their
territory is not used for unauthorised actions targeted at third countries. The same applies to
persons staying within the territory of the state. An assessment of whether the state exercised
due
care
or
not
should
be
contingent
upon
its
technological
advancement,
expertise/resources and knowledge about actions in cyberspace initiated within its territory.
Actions in cyberspace that violate the prohibition of the use of force and the principle
of non-intervention
in affairs falling under the domestic jurisdiction of a state would also
violate the principle of sovereignty.
3. Actions in cyberspace may constitute unlawful intervention in affairs falling under the
domestic jurisdiction of a state
Intervention in internal or external affairs of another state that fall under its domestic
jurisdiction is an action that contravenes international law.*° The principle of non-intervention
is a natural consequence
of the principle of sovereignty — to the extent to which the state
exercises its exclusive sovereign rights, the other states have an obligation to respect them.
The threshold for considering a specific operation in cyberspace to be in breach of the
principle of non-intervention is higher than in the case of deeming it solely a violation of the
principle of sovereignty. To be in breach of international law, an intervention must include the
element of coercion that aims at influencing the state’s decisions belonging to its domaine
réserve, i.e. the area of state activity that remains its exclusive competence under the principle
of sovereignty.‘ Therefore, it is possible to refer to a violation of the non-intervention
principle
if astate
interferes
with
internal
or external
affairs falling
under
the
exclusive
competence of another state by using an element of coercion.
There
is no
universally
acceptable
definition
of “coercion”,
but
an
unambiguous
example of a prohibited intervention is the use of force.
A cyber operation that adversely affects the functioning and security of the political,
economic,
would
military or social system of a state, potentially leading to the state’‘s conduct that
not occur otherwise,
may be considered a prohibited
action in cyberspace that would
with
ICT systems that would
intervention.
In particular, any
prevent the filing of tax returns online or any interference
prevent a reliable and timely conduct of democratic elections
would be a violation of international law. Similarly, depriving the parliament working remotely
of the possibility of voting online to adopt a law or modifying the outcome
would
also
be
such
aviolation.
It should
also
be
noted
that
a wide-scale
of such voting
and
targeted
disinformation campaign may also contravene the principle of non-intervention, in particular
when it results in civil unrest that requires specific responses on the part of the state.
10 The principle of non-intervention is referred to in Article 2(7) of the Charter of the United Nations (with respect
to the relations between the UN and States) and the Declaration on Principles of International Law adopted by
UN General Assembly Resolution No 2625 of 24 October 1970 (with respect to international relations).
11 The International Court of Justice’s judgment in the case concerning military and paramilitary activities in and
against Nicaragua (Nicaragua v. United States of America), ICJ. Rep. 1986, § 205.