use of force and non-intervention”.2 In line with the stated position of many other states,
Ireland considers that respect for sovereignty is an obligation in its own right. A violation
of state sovereignty by way of cyber activities is capable of amounting to an
internationally wrongful act and triggering state responsibility, even if such a violation
falls short of the threshold of non-intervention or the use of force.
6.
A violation of a state’s sovereignty may arise where a cyber-operation attributable to
another state causes physical damage to ICT or other infrastructure (whether or not in
state ownership or control), functional impairment to such infrastructure, interference
with data, and/or secondary effects. The nature and consequences of a cyber-operation
are relevant to determining whether a violation has occurred in any given case.
7.
Sovereignty may not be relied on to justify a state’s non-compliance with applicable
obligations under international law. Ireland notes with regret that sovereignty has at
times been relied on by some states as justification for cyber measures and/or
restrictions within their jurisdiction – such as cyber surveillance or censorship – which
compromise human rights, in particular the right to freedom of expression, freedom of
thought, conscience and religion, and the right to privacy.
Principle of Non-Intervention
8.
The principle of non-intervention in the internal affairs of states, a corollary of the
principle of sovereignty, involves the right of every sovereign state to conduct its affairs
without interference.3 The principle of non-intervention, outside the context of use of
force, applies to one state’s actions in relation to another state where two elements are
present: (i) coercion by one state of another state; and (ii) in relation to “matters in which
each state is permitted, by the principle of state sovereignty, to decide freely.” 4 As
regards what is encompassed by the latter element, the ICJ in the Nicaragua case
provided specific examples such as the “choice of a political, economic, social and cultural
system, and the formulation of foreign policy.”5 This is often referred to as the domaine
réservé of a state.
9.
In order for the principle to be engaged, an intervention in the cyber context must be of
sufficient seriousness, comparable in scale and effects to coercive action in a non-cyber
2
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) Merits Judgment, ICJ
Reports 1986, p. 14, [212].
3 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) Merits Judgment, ICJ
Reports 1986, p. 14, [202]. The principle is also reflected in Article 2(7) of the UN Charter, which provides: “Nothing
contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the
domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present
Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.”
4 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) Merits Judgment, ICJ
Reports 1986, p. 14, [205].
5 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) Merits Judgment, ICJ
Reports 1986, p. 14, [177].