A/76/136
the permanent members of the United Nations (UN) Security Council recognised this
in the 2013 and 2015 reports of the UN Group of Governmental Experts on the use of
Information Communications Technologies in the Context of International Security
(UNGGE), as adopted by the UN General Assembly. Australia also acknowledged
that activities conducted in cyberspace raise new challenges for how international law
applies. To deepen understandings and set clear expectations, Australia encourages
states to be transparent in how they interpret existing international law as it applies
to state conduct in cyberspace. The Strategy, and this supplement, form part of
Australia’s ongoing effort to make its views on the applicability of international law
public.
The law on the use of force (jus ad bellum) and the principle of non-intervention
The United Nations Charter (Charter) and associated rules of customary
international law apply to activities conducted in cyberspace. Article 2(3) of the
Charter requires states to seek the peaceful settlement of disputes and Article 2(4)
prohibits the threat or use of force by a state against the territorial integrity or political
independence of another state, or in any manner inconsistent with the purposes of the
UN. In the Strategy, Australia made clear that these obligations – and the UN Charter
in its entirety, including those obligations, apply in cyberspace as they do in the
physical realm.
A use of force will be lawful when the territorial state consents, it is authorised
by the Security Council under Chapter VII of the UN Charter or when it is taken
pursuant to a state’s inherent right of individual or collective self-defence in response
to an armed attack, as recognised in Article 51 of the Charter. Australia considers that
the thresholds and limitations governing the exercise of self-defence under Article 51
apply in respect of cyber operations that constitute an armed attack and in respect of
acts of self- defence that are carried out by cyber means. Thus if a cyber operation –
alone or in combination with a physical operation – results in, or presents an imminent
threat of, damage equivalent to a traditional armed attack, then the inherent right to
self-defence is engaged. The rapidity of cyber attacks, as well as their potentially
concealed and/or indiscriminate character, raises new challenges for the application
of established principles. These challenges have been raised by Australia in
explaining its position on the concept of imminence and the right of self-defence in
the context of national security threats that have evolved as a result of technological
advances (see Figure 1).
FIGURE 1 – IMMINENCE AND CYBER OPERATIONS
“[A] state may act in anticipatory self-defence against an armed attack when
the attacker is clearly committed to launching an armed attack, in circumstances
where the victim will lose its last opportunity to effectively defend itself unless it acts.
This standard reflects the nature of contemporary threats, as well as the means
of attack that hostile parties might deploy.
Consider, for example, a threatened armed attack in the form of an offensive
cyber operation (and, of course, when I say ‘armed attack’, I mean that term in the
strict sense of Article 51 of the Charter). The cyber operation could cause large-scale
loss of human life and damage to critical infrastructure. Such an attack might be
launched in a split-second. Is it seriously to be suggested that a state has no right to
take action before that split-second?”
Attorney-General, Senator the Hon. George Brandis QC,
University of Queensland, 11 April 2017
21-09670
15/142
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