A/76/136
In our view, international humanitarian law provides the necessary rules
constraining states’ conduct in conflict that also extend to cyber operations. Its
applicability does not lead to the militarisation of cyberspace.
Armed conflicts today and in the future may involve offensive cyber
capabilities. Therefore, it is vital that the use of such capabilities would be subject to
obligations deriving from international humanitarian law, including taking into
account such considerations as humanity, necessity, proportionality and distinction.
International human rights law
All states bear an obligation to ensure and protect fundamental rights and
freedoms both online as well as offline.
In regards to state use of ICTs, states must comply with Human Rights
obligations including those deriving from the Universal Declaration of Human Rights
and the International Covenant on Civil and Political Rights.
Cybersecurity and human rights are complementary, mutually reinforcing
and interdependent. Both need to be pursued together to effectively promote freedom
and security. Cybersecurity laws, policies and practices must not be used as a pretext
to silence human rights defenders and restrict human rights and fundamental freedoms
in general.
The prevention, mitigation of as well as responses to cyber incidents should not
violate human rights. This in particular includes the freedom of expression, the
freedom to seek, receive and impart information, the freedom of peaceful assembly
and association, and the right to privacy.
As a founding member of Freedom Online Coalition (FOC) Estonia nationally
and internationally supports policies and practices that promote the protection of
human rights and fundamental freedoms online. 49
Public authorities have a duty to respect and protect the freedom of expression
and the freedom to seek, receive and impart information. Estonia is a proponent of
transparency in government processes – transparency is essential in order for citizens
to be able to trust the e-services provided to them. In addition, the development of egovernment solutions in the public sector has to go hand in hand with safeguarding
the privacy of citizens and the security of their data.
II.
State responsibility and attribution
State responsibility
The law of state responsibility is a cornerstone for responsible state behaviour in
cyberspace when it comes to assessing the unlawfulness of cyber operations
below the threshold of use of force.
The law of state responsibility includes key principles that govern when and
how a state is held responsible for cyber operations that constitute a breach of
international obligation, by either an act or an omission. A cyber operation can
constitute an internationally wrongful act if it is attributable under international law
and it constitutes a breach of international obligation under the law of state
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49
21-09670
Freedom Online Coalition statement on the Human Rights Impact of Cybersecurity Laws,
Practices and Policies (2020): https://freedomonlinecoalition.com/wp-content/uploads/2020/02/
FOC-Statement-on-Human-Rights-and-Cyber-Security-07.02.pdf
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