31.03.2020
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Austria notes that while it is true that existing regimes of international law do not include
explicit references to ICTs etc., it needs to be underlined that this does not mean that
these rules do not apply in cyber space. Indeed, quite the contrary is the case: As stated
by the GGE, existing international law in its entirety applies to cyber operations.
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For this reason, Austria does not see the “need to adapt existing international law” and
is not in favour of developing “a new instrument”. As Austria stated on the occasion of
the 2nd OEWG substantive session in February, we believe that when talking about “gaps”,
we are not referring to the set of legally binding rules of international law as such, but
rather to the interpretation of these rules in the cyber context and to the issue of how to
apply these obligations against this background.
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In fact, we believe that stressing the need to adapt existing/develop new legal
instruments can be hazardous, as it opens the gate for an argumentum e contrario for
putting in question the applicability and legally binding character of customary
international law, general principles of law and treaty obligations with regard to ICTs.
Existing law also provides an answer on how to deal legally with the problem of changing
environments. Article 31(3)(b) of the Vienna Convention on the Law of Treaties foresees
that when interpreting a treaty, any subsequent practice in the application of that
respective treaty which establishes the agreement of the parties regarding its
interpretation needs to be taken into account, together with the context.
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Our approach stems from pragmatic reasoning as well. Given the “quickly evolving nature”
of “the threat environment” (to quote the Pre-Draft para. 28.), we need to focus on
compliance with international law rather than undergoing the procedure of the adoption
of new rules, which is time-consuming in multinational fora and involves the risk that
factual developments in a particularly fast-paced area may render obsolete the result of
cumbersome decision-making processes. Austria therefore stresses the need to continue
discussions on the issues of application and operationalisation of as well as compliance
with international law and the need for further guidance, e.g. in the form of guiding
principles).
2. International Humanitarian Law
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The last sentence of para. 27 (“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.”) is unclear and might lead to the false understanding that there
was currently a legal vacuum concerning the use of cyber operations besides conventional
means of warfare in armed conflicts. Austria strongly proposes to clarify that States are
already legally obligated to ensure that lives of innocent civilians are spared –and this is
exactly what international humanitarian law obliges all states to do – even with respect
to ICT incidents.