10 Improving Transparency: International Law and State Cyber Operations Australia,11 Estonia,12 France,13 Germany,14 and the Netherlands.15 Although a welcome development, the number and specificity of these statements has not (yet) been sufficient to rely on them as evidence of general state practice or opinio juris.16 8. Several non-State actors have sought to fill in this information deficit by offering their own views on how customary international law regulates State cyber operations. The two most prominent sets of voices are undoubtedly those of the International Committee of the Red Cross (ICRC) and the Indepen- Australian Mission to the United Nations, Australian Paper—Open Ended Working Group on Developments in the Field of Information and Telecommunications in the Context of International Security (Sept. 2019), at https://s3.amazonaws.com/unoda-web/wp-content/ uploads/2019/09/fin-australian-oewg-national-paper-Sept- 2019.pdf (“Australian Views”); Commonwealth of Australia, Department of Foreign Affairs and Trade, Annex A: Australia’s position on how international law applies to State conduct in cyberspace, in AUSTRALIA’S INT’L CYBER ENGAGEMENT STRATEGY (2017) at https://www.dfat.gov.au/sites/default/files/ DFAT%20AICES_AccPDF.pdf. 12 Kersti Kaljulaid, President of Estonia, President of the Republic at the opening of CyCon 2019 (May 29, 2019), at https://www.president.ee/en/official-duties/speeches/15241-presidentof-the-republic-at-the-opening-of-cycon- 2019/index.html (“Estonian Views”). 13 Ministère des Armées, Droit international appliqué aux operations dans le cyberspace (Sept. 9, 2019), https://www.defense.gouv.fr/salle-de-presse/communiques/communiques-du-ministere-des- armees/communique_la-france-s-engage-a-promouvoir-un-cyberespace-stable-fonde-sur-la-confiance-et-le- respect-du-droit-international (“French Ministry of Defense Views”). I have not labeled these as “French views” as at least one scholar has pointed out that the document is authored by the French Ministry of Defense and its contents may not be attributable to the French State as a whole. See Gary Corn, Punching on the Edges of the Gray Zone: Iranian Cyber Threats and State Cyber Responses, JUST SECURITY (Feb. 11, 2020) (“it should be noted that despite numerous assertions to the contrary, the French document does not claim to be the official position of the French government. It was written and published by the French Ministère des Armées (MdA), in the same vain as the DoD Law of War Manual which does not necessarily reflect the views of the U.S. Government as a whole.”). 14 Speech by Amb. Norbert Riedel, Commissioner for Int’l Cyber Policy, Federal Foreign Office of Germany (May 18, 2015), at https://www.auswaertiges-amt.de/en/newsroom/ news/150518-ca-b-chatham-house/271832. 15 Letter to the parliament on the international legal order in cyberspace, July 5, 2019, Appendix 1, at https://www.government.nl/ministries/ministry-of-foreign-affairs/documents/parliamentary- documents/2019/09/26/letter-to-the-parliament-on-the-international-legal-order-in-cyberspace (“The Netherlands Views”). 16 See, e.g., Egan, supra note 9, at 817. 11 Inter-American Juridical Committee Fifth Report dent Group of Experts who authored the Tallinn Manuals.17 It is clear, however, that not all States regard their contents as reflecting international law.18 9. Last year, the U.N. General Assembly tasked a new U.N. Group of Governmental Experts (“GGE”) to invite national views on international law.19 In addition, to the new GGE, there is also a U.N.-sponsored Open Ended Working Group on Developments in the Field of Information and Telecommunications in the context of International Security (“OEWG”) that has afforded participants an opportunity to make statements, some of which reference international law.20 The GGE, however, only has four OAS Member States participating (Brazil, Mexico, the United States and Uruguay). In contrast, the OEWG is open to all OAS Member States. But most contributions there relating to international law have remained highly generalized. And, like the GGE, the OEWG focuses exclusively on international security issues, cabining State views on international law’s application accordingly. 10. Thus, there is a need for additional fora where Member States can be encouraged—and afforded opportunities—to express their own views on the application of international law. This project marks a first (and someSee, e.g., ICRC, Position Paper on International Humanitarian Law and Cyber Operations during Armed Conflicts (Nov. 2019); MICHAEL N. SCHMITT (ED.), TALLINN MANUAL 2.0 ON THE INTERNATIONAL LAW APPLICABLE TO CYBER OPERATIONS (2017) (“Tallinn 2.0”); see also ICRC, Report on International Humanitarian Law and the Challenges of Contemporary Armed Conflict (Nov. 2019); ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, (Oct. 2015) 39-44. 18 Egan, supra note 9, at 817 (“Interpretations or applications of international law proposed by non-governmental groups may not reflect the practice or legal views of many or most States. States’ relative silence could lead to unpredictability in the cyber realm, where States may be left guessing about each other’s views on the applicable legal framework. In the context of a specific cyber incident, this uncertainty could give rise to misperceptions and miscalculations by States, potentially leading to escalation and, in the worst case, conflict.”). 19 See UNGA Res. 266, supra note 3, 3 (on the GGE’s mandate). 20 See U.N. Doc. A/RES/73/27, 5 (Dec. 5, 2018). A number of (still mostly European) States have used their comments on draft OEWG reports to elaborate views on how international law applies to cyberspace. See, e.g., Austria, Comments on Pre-Draft Report of the OEWG - ICT (March 31, 2020); Ministry of Foreign Affairs of the Czech Republic, Comments submitted by the Czech Republic in reaction to the initial “pre-draft” report of the Open-Ended Working Group on developments in the field of information and telecommunications in the context of international security. These, and all other submissions to the OEWG, can be viewed at https://www. un.org/disarmament/open-ended-working-group/. 17 International Law and State Cyber Operations 11