31.03.2020
Pre-Draft Report of the OEWG - ICT
Comments by Austria
Austria welcomes the “Pre-Draft” Report of the Open Ended Working Group on developments
in the field of Information and Telecommunication in the context of international security
(OEWG ICT) presented by the OEWG Chair and would like to offer the following comments:
1. The issue of a new legal instrument governing cyber operations
Paras 27 and 28 of the Pre-Draft read as follows:
“27. At the same time, during the discussion, it was also noted that there may be a need
to adapt existing international law or develop a new instrument to address the unique
characteristics of ICTs. In particular, it was highlighted that certain questions on how
international law applies in the use of ICTs have yet to be fully clarified. Such questions
include, inter alia, what kind of ICT-related activity might be interpreted by other States
as a threat or use of force (Art. 2(4) of the Charter) or might give a State cause to invoke
its inherent right to self-defence (Art. 51 of the Charter). They also include questions
relevant to how the principles of international humanitarian law, including the protection
of civilians and civilian objects, apply to ICT operations in the context of armed conflict. In
this regard, it was noted that the issue of the applicability of international humanitarian
law to the use of ICTs by States needed to be handled with prudence.
28.: In this context, proposals were made for the development of a legally binding
instrument on the use of ICTs by States as the quickly evolving nature of the threat
environment and the severity of the risk necessitates a stronger, internationally agreed
framework. It was noted that such a binding framework may lead to more effective global
implementation of commitments and a stronger basis for holding actors accountable for
their actions.”
Comments by Austria:
- While para. 27 reflects the spectrum of opinions on the question of whether or not there
is need for a new legal instrument “addressing the unique characteristics of ICTs”,
language in para. 28 (“necessitates a stronger, internationally agreed framework”) seems
to refer to an emerging consensus on this issue. It has to be noted that many States
highlighted that precisely the “quickly evolving nature of the threat environment” and
technical tools meant that a truly universal cyber security framework could only be
grounded in existing international law, including the UN Charter in its entirety,
international humanitarian law and international human rights law, complemented by
norms, rules and principles of responsible State behaviour, as included in UNGGE reports
and endorsed by the General Assembly.