A/76/136
States have territorial sovereignty over the ICT infrastructure and persons
engaged in cyber activities on their territory. However, states’ right to exercise
sovereignty on their territory is not unlimited; states must respect international law,
including human rights obligations. States also bear the responsibility to comply with
legal obligations flowing from sovereignty – for example, the responsibility not to
breach the sovereignty of other states and to take reasonable efforts to ensure that
their territory is not used to adversely affect the rights of other states. The principle
of sovereignty is also closely linked with the principle of non-intervention and the
principles of the prohibition of the threat or use of force.
The violation of sovereignty through cyber means can breach international law,
and therefore may give the victim state the right to take measures, including
countermeasures. Views on what constitutes a breach of sovereignty in cyberspace
differ. Malicious cyber operations can be complex, cross several jurisdictions and
may not always produce physical effects on targeted infrastructure.
Non-intervention
The principle of non-intervention is a well-established rule of international law,
which flows from the principle of sovereignty, and applies to state conduct in
cyberspace.
If an operation attributable to another state affects a state’s internal or external
affairs in such a manner that it coerces a state to take a course of action it would not
voluntarily seek, it would constitute a prohibited intervention.
When discussing if a cyber operation constitutes an unlawful intervention into
the external or internal affairs of another state, the element of coercion is a key factor.
The possibility for a cyber operation to constitute an unlawful intervention in the
functions that form a part of a state’s domaine réservé has found acceptance among
states, including Estonia, especially regarding the rights and obligations deriving
from the principle of state sovereignty. States’ domaine réservé according to the ICJ
includes the “choice of a political, economic, social, and cultural system, and the
formulation of foreign policy.” 47 Stemming from that, cyber operations that aim to
force another nation to act in an involuntary manner or to refrain from acting in a
certain manner, and target the other nation’s domaine réservé (e.g. national
democratic processes such as elections, or military, security or critical infrastructure
systems) could constitute such an intervention.
Prohibition of the use of force
States must refrain in their international relations from carrying out cyber
operations which, based on their scale and effect, would constitute a threat or
use of force against the territorial integrity or a political independence of any
state, or in any other manner inconsistent with the purposes of the UN.
While taking measures in cyberspace, states must comply with the obligations
and constraints enshrined in international law, including the UN Charter and
customary international law. The threat or use of force in international relations is
prohibited; however, the UN Charter foresees concrete situations where it could be
allowed (in response to an armed attack, as self-defence or in accordance with
chapter VII of the UN Charter).
__________________
47
21-09670
Nicaragua case: www.icj-cij.org/files/case-related/70/070-19860627-JUD-01-00-EN.pdf
25/142
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents