A/76/136
Australia will, in its sole discretion, and based on its own judgement, attribute
unlawful cyber operations to another state. In making such decisions, Australia relies
on the assessments of its law enforcement and intelligence agencies, and consultations
with its international partners (see e.g. Figure 3). A cyber operation will be
attributable to a state under international law where, for example, the operation was
conducted by an organ of the state; by persons or entities exercising elements of
governmental authority; or by non-state actors operating under the direction or control
of the state.
As outlined in the Strategy, if a state is a victim of malicious cyber activity
which is attributable to a perpetrator state, the victim state may be able to take
countermeasures (whether in cyberspace or through another means) against the
perpetrator state, under certain circumstances. Countermeasures are measures, which
would otherwise be unlawful, taken to secure cessation of, or reparation for, the other
state’s unlawful conduct. Countermeasures in cyberspace cannot amount to a use of
force and must be proportionate. States are able to respond to other States’ malicious
activity with acts of retorsion, which are unfriendly acts that are not inconsistent with
any of the State’s international obligations.
If a state is the victim of harmful conduct in cyberspace, that state could be
entitled to remedies in the form of restitution, compensation or satisfaction. In the
cyber context, this may mean that the victim-state could for example seek replacement
of damaged hardware or compensation for the foreseeable physical and financial
losses resulting from the damage to servers, as well as assurances or guarantees of
non-repetition.
Brazil
[Original: English]
Brazil firmly believes that in their use of information and communications
technologies, States must comply with international law, including the United Nations
Charter, international human rights law and international humanitarian law. The
United Nations and other regional organizations have recognized that international
law, and in particular the Charter of the United Nations, is applicable to States’ ICTrelated activity in cyberspace and is essential to maintaining peace and stability and
promoting an open, secure, peaceful and accessible ICT environment 10. Hence, in
current discussions, the question is no longer whether, but how international law
applies to the use of ICTs by States.
While analogies in relation to the physical world might work most of the time
to determine the manner in which international law applies, cyberspace’s unique
characteristics create new situations that international law was not originally designed
to address. The interconnectivity of information systems, the intangible components
of cyberspace, the fluidity of jurisdictions and the potential anonymity of cyber
operations, among other factors, pose new challenges to international law, whose
development has been based on a physical and territorial international order.
__________________
10
21-09670
United Nations Report of the Group of Governmental Experts on Developments in the Field of
Information and Telecommunications in the Context of International Security, para. 19, UN
DOC. A/68/98 (June, 24, 2013); United Nations Report of the Group of Governmental Experts on
Developments in the Field of Information and Telecommunications in the Context of
International Security, paras.13, 24 and 28(b) UN DOC A/70/174 (22 July 2015); United Nations
Report of the Group of Governmental Experts on Advancing responsible State behavior in
cyberspace in the context of international security, para. 71(b) (May 2021, advance copy).
17/142
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