A/76/136
The development and use of new technologies will inevitably raise questions
both of lex lata and lege ferenda. Law will often be outpaced by scientific progress,
which in turn tends to generate considerable uncertainty about the application of
certain international rules. 11 Legal uncertainty, particularly in the realm of peace and
security, can lead to unwarranted insecurity and increased risks of conflict.
To the extent that interpretations of how international law applies to the use of
ICT by States diverge, the risk of unpredictable behavior, misunderstandings and
escalation of tensions increases. Therefore, it is important to identify convergence
amongst States on this matter and, where divergences are identified, to jointly work
towards increased coherence in the interpretation of existing rules. If necessary,
development of additional norms should also be considered as a means to fill potential
legal gaps and resolve remaining uncertainties.
The current paper highlights Brazil’s views on how international law applies to
the use of ICTs by States. Given the broad scope of international law, only some
aspects will be covered. In developing this assessment, Brazil has followed the
traditional sources of international law, as enshrined in article 38 of the ICJ Statute.
Academic works and expert reports, such as the Talinn Manual and the ICRC Position
Paper, are considered as important reference material.
1.
Sovereignty
State sovereignty is one of the founding principles of international law. As the
ICJ has stated in the Corfu Channel Case, “between independent States, the respect
for territorial sovereignty is an essential foundation for ‘international relations’”. 12 It
is applicable as a standalone rule, including to the use of ICTs by States, and entails
an independent obligation of “every State to respect the territorial sovereignty of
others”. 13 Currently, there is neither broad state practice nor sufficient opinio juris to
generate new customary international norm allowing for the violation of State
sovereignty, including by means of ICTs.
Violations of State sovereignty by another State, including by means of ICTs,
constitute an internationally wrongful act and entail the international responsibility
of the State in violation. Interceptions of telecommunications, for instance, whether
or not they are considered to have crossed the threshold of an intervention in the
internal affairs of another State, would nevertheless be considered an internationally
wrongful act because they violate state sovereignty. 14 Similarly, cyber operations
against information systems located in another State’s territory or causing
extraterritorial effects might also constitute a breach of sovereignty.
2.
Non-intervention
The principle of non-intervention, which is considered customary international
law, refers to “the right of every sovereign State to conduct its affairs without outside
interference”. 15 In the Declaration on the Principles of International Law concerning
Friendly Relations and Co-operation among States, 16 the General Assembly affirmed
that “the strict observance by States of the obligation not to intervene in the affairs of
any other State is an essential condition to ensure that nations live together in peace
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18/142
Oliver Kessler and Wouter-Werner, “Expertise, Uncertainty, and International Law: A Study of
the Tallinn Manual on Cyberwarfare,” 26 Leiden Journal of International Law 793 (2013),
pp. 802–807, p. 807
Corfu Channel Case, ICJ, 1949, 35; See also Schwarzenberger, p 219.
ICJ, Nicaragua, Merits, p. 111.
A/67/946
ICJ, Nicaragua, Merits, pp 106–108.
General Assembly Resolution 2625 (XXV)
21-09670
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