A/76/136 State B cease unlawful act/s (if they were continuing) and make full reparation for State A’s injuries. Reparation could entail compensation for financially assessable damage, as well as assurances or guarantees of non-repetition. As international law governs the dispute, State A may seek to pursue resolution through legal as well as political avenues including, for example, by seeking a resolution consistent with the Charter of the United Nations, including Chapter VI (Pacific Settlement of Disputes) 8 (which could include the International Court of Justice, as outlined in Scenario 1) and/or Chapter VII (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression) 9. Fourth, if State B’s conduct violated international law, it would entitle State A to take countermeasures – acts which would ordinarily be unlawful – in response to State B’s wrongdoing. Countermeasures could be cyber in nature or taken through alternative means – such as implementing otherwise unlawful tariffs on trade in important goods/services from State B. However, State A would need to ensure that such countermeasures: • were directed against State B • did not constitute a threat or use of force, violate fundamental human rights, humanitarian obligations prohibiting reprisals, or peremptory international legal norms • were reversible (as far as possible) • were proportionate to the injury suffered by State A, and • were intended to induce State B to comply with its international legal obligations. Fifth, if the cyber operation constituted an “armed attack”, as recognised under Article 51 of the UN Charter, State A would be entitled to use force pursuant to its inherent right of self-defence against State B. The use of force in self-defence may be cyber in nature or conducted through kinetic means. However, the right to selfdefence would require that State A only use force where it is necessary to repel the actual or imminent armed attack and that such force be a proportionate response in scope, scale and duration. The measures taken by State A would need to be immediately reported to the UN Security Council. International law would not preclude State A from taking acts of retorsion, which are unfriendly acts that are not inconsistent with the international obligations of State A, including, for example, declaring diplomats from State B in State A persona non grata. ATTACHMENT 1 2017 – AUSTRALIA’S POSITION ON THE APPLICATION OF INTERNATIONAL LAW TO STATE CONDUCT IN CYBERSPACE Existing international law provides the framework for state behaviour in cyberspace. This includes, where applicable, the law regarding the use of force, international humanitarian law (IHL), international human rights law, and international law regarding state responsibility. __________________ 8 9 12/142 See note 5 above. For example: Article 39 of the UN Charter provides that “The [UN] Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42 to maintain or restore international peace and security.” 21-09670