14 Improving Transparency: International Law and State Cyber Operations international law’s application even when afforded new opportunities to do so. This suggests a need to encourage greater State responses or to seek their inputs in less formal ways. 14. With the Committee’s approval, the deadline for responding to the Questionnaire was extended to June 1, 2020. Unfortunately, no additional responses were received. That said, a number of Member States did make relevant statements in their written comments to the OEWG’s draft reports on international security.27 15. With the assistance of the OAS Department of International Law, we initiated a second vehicle for bringing a greater range of State views on international law and cyberspace into the public sphere – a Chatham House style conversation on the topic. On June 23, 2020, the Department of International Law hosted—and I moderated—a nearly three-hour discussion that included legal representatives from 16 Member States and the ICRC. The in-depth conversation affirmed several of my fourth report’s conclusions, especially the need for greater legal capacity building. It also highlighted several explanations for Member State reluctance to go on record with respect to international law’s application to cyberspace. 16. In this report, I do three things. First, I am updating and revising the survey of State responses to the Committee Questionnaire in light of the June 23 meeting as well as relevant Member State statements in the OEWG process. This revised survey is appended at Annex B to this Report. 17. Second, based on the June 23 consultations, I want to highlight three sets of challenges – technical, political and legal – to achieving greater transparency from Member States on international law’s application to cyberspace. Technically, the so-called “attribution problem” complicates Member States’ ability to talk about international law’s application publicly. States may know that they have been a victim of a cyber attack but be unable to discern See, e.g., Second “Pre-draft” of the report of the OEWG on developments in the field of information and telecommunications in the context of international security (May 27, 2020), at https:// front.un-arm.org/wp-content/uploads/2020/05/200527-oewg-ict-revised-pre-draft.pdf. The texts of the various national statements are available at https://www.un.org/disarmament/open-ended-working-group/. 27 Inter-American Juridical Committee Fifth Report whether its author was a State (or a proxy for which a State could be held legally responsible). Without the capacity technically (or otherwise) to attribute a cyber operation to a foreign State, States cannot invoke international law since that law only applies if the perpetrator was a State or an actor for whom a State might be held legally responsible. Similarly, where actors operate anonymously, it is difficult to identify the requisite State practice (let alone opinio juris) since the behavior is not attributable to a State. 18. Politically, some of the transparency problems are internal to Member States – several legal representatives reported a continuing need to better organize responsibility for dealing with cyber-related issues (their domestic legal and policy frameworks have yet to catch up to the current reality). Although a number of States have been dealing with cybersecurity issues for some time, for other Member States these issues are still relatively new and novel. As such, several Member States reported a lack of governmental expertise (or resources) on cyber-related issues. 19. In other cases, there are institutional issues; the expertise exists, but is distributed in ways that make it difficult to coalesce into a formal State view that can be expressed publicly. Several foreign ministry representatives emphasized in particular the need for further internal dialogue to ensure that foreign ministries take the leading role in cyber diplomacy discussions, including those relevant to international law’s application. At the same time, the desire by certain States to retain freedom to engage in cyber operations has led to a reluctance to take positions on what operations international law might prohibit or restrict lest that limit their future freedom to maneuver or react. 20. Other participants in the June 23 consultations identified external political challenges to greater transparency. It is clear that certain States (e.g., the United States, Russia, China) currently have extensive capacities to conduct and defend against cyber operations, capacities that have led them to stake out discrete—and often conflicting—views on international law’s regulatory role. Some Member States indicated a reluctance to make similar signals lest they embroil that State in the competition and conflict among these actors; issues States can avoid by staying silent. For other participants, transparency should only occur gradually, over time, once Member States have had more opportunity for careful diplomatic dialogue and discussion. International Law and State Cyber Operations 15