54 Fifth Report Annex B of sovereignty as equivalent to the domaine réservé protected by the duty of non-intervention.115 44. The U.S. position is murkier. In 2014, then-legal adviser Harold Koh indicated that “State sovereignty . . . must be taken into account in the conduct of activities in cyberspace, including outside of the context of armed conflict.”116 It is not clear, however, whether taking “State sovereignty . . . into account” signals U.S. recognition of sovereignty as a standalone rule. In his own speech in 2016, then-Legal Adviser Brian Egan made clear that “remote cyber operations involving computers or other networked devices located on another State’s territory do not constitute a per se violation of international law.”117 At the same time, he conceded that ‘[i]n certain circumstances, one State’s non-consensual cyber operation in another State’s territory could violate international law, even if it falls below the threshold for the use of force.” In any case, Egan indicated that “[p]recisely when a non-consensual cyber operation violates the sovereignty of another State is a question lawyers within the U.S. government continue to study carefully, and it is one that ultimately will be resolved through the practice and opinio juris.”118 This might suggest that the United States may accept the idea of sovereignty-as-rule in principle, albeit without much clarity on its contours or contents. Most recently, the General Counsel for the U.S. Department of Defense declined to adopt this view: “[f ] or cyber operations that would not constitute a prohibited intervention or use-of-force [i.e., those that might be covered by a rule of sovereignty], the Department believes there is not sufficiently widespread and consistent State practice resulting from a sense of legal obligation to conclude that customary international law generally prohibits such non-consensual cyber operations in another State’s territory.”119 See note 98. 116 Koh, supra note 1, at 596; Accord 2014 US GGE Submission, supra note 1, at 737; 2016 US GGE Submission, supra note 1, at 825. 117 Egan, supra note 1, at 818. Among other things, Egan indicated that the United States does engage in intelligence collection activities overseas and that such activities may violate the domestic laws of other States, but that there is no “per se prohibition on such activities under customary international law.” Id. 118 Id. at 819. 119 See Paul C. Ney, DOD General Counsel Remarks at U.S. Cyber Command Legal Conference (March 2, 2020), at https://www.defense.gov/Newsroom/Speeches/Speech/Article/2099378/dod-general-counsel-remarks-at-us- cyber-command-legal-conference/. It is 115 Inter-American Juridical Committee 45. A discussion among 16 Member States’ representatives under “Chatham House rules”120 on June 23, 2020 reinforced the current diversity of viewpoints on the sovereignty question. Several participants called for affirming the “sovereignty-as-rule” view for cyberspace, violations of which would trigger international legal responsibility. Others, however, expressed more skepticism about the value of such efforts; one participant suggested that there may be too many meanings for the term “sovereignty” to ascribe it a rule-like status. Another participant viewed the “sovereignty debate as a distraction” while a third explicitly suggested a need to “rethink” its meaning in the cyber context. Question 9 Does due diligence qualify as a rule of international law that States must follow in exercising sovereignty over the information and communication technologies in their territory or under the control of their nationals? 46. Due diligence is a principle of international law that requires a State to respond to activities that it knows (or reasonably should know) have originated in its territory or other areas under its control and that violate the right(s) of another State.121 It is an obligation of effort, not result – where a State knows or should know of the conduct, it must employ “all means reasonably available” to redress it.122 As a principle, due diligence currently regulates State behavior not clear, however, whether Ney was expressing views for the United States as a whole, or, if the position was just that of the U.S. military, an ambiguity that also exists with respect to the French Ministry of Defense Views. See supra note 101. 120 Chatham House, Chatham House Rule, at https://www.chathamhouse.org/chathamhouse-rule (“When a meeting, or part thereof, is held under the Chatham House Rule, participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed.”). 121 See, e.g., Corfu Channel Case; Assessment of Compensation (United Kingdom v. Albania) [1949] ICJ Rep. 22 (April 9). Trail Smelter Case (United States-Canada), UNRIAA, vol. III, 1905 (1938, 1941). 122 See Application of the Convention on the Protection and Punishment of the Crime of Genocide (Bosnia v. Serbia) (Judgment) [2007] ICJ Rep. 1, 430. International Law and State Cyber Operations 55