A/76/136
those acts to the responsible state, seek peaceful resolution of disputes and, where the
victim state deems appropriate, take lawful measures in response. The case studies
illustrate that the application of existing international law to cyberspace can enhance
international peace and security by increasing predictability of state behaviour,
reducing the possibility of conflict, minimising escalation and preventing
misattribution.
The case studies represent fictional scenarios and are not based on actual actors
or events. They are intended to illustrate potential options rather than recommend a
course of action. They do not purport to represent how Australia could or would
respond to any malicious cyber activity directed against it, or purport to provide a
comprehensive view on potential response options or the international law issues
raised in any specific scenario.
Scenario 1 – Cyber operations by State B on government systems and websites
of State A
State A undertakes major reforms to its domestic company law and tax code that
are consistent with its international obligations. In order to implement the new laws
– including to allow State A’s tax office and corporate regulator to monitor and
enforce new requirements on companies – State A requires all registered companies
to disclose certain information via a government website. State B opposes the reforms
because it considers they unfairly impact on the interests of companies from State B
operating in State A. In an attempt to prevent State A from implementing the reforms,
State B, through its Department of Defence, conducts a series of cyber operations that
prevent use of the website and disable government systems of State A’s tax office and
corporate regulator. As a result, State A is incapable of regulating companies’
compliance with the new laws for a substantial period and has no choice but to
indefinitely postpone implementation of the new tax reforms. State A also loses
significant tax revenue.
International law may assist State A in the following ways:
First, it provides rules of legal attribution – contained in the customary
international law on state responsibility, much of which is reflected in the
International Law Commission’s Articles on the Responsibility of States for
Internationally Wrongful Acts – meaning that acts of the Department of Defence, as
an organ of State B, would be attributable to State B.
Second, it defines states’ rights and obligations, including the international
law duty not to intervene in the internal affairs of another state (prohibited
intervention). State B’s conduct could constitute a prohibited intervention on the basis
that it was a coercive interference in matters which State A is entitled as a matter of
state sovereignty to decide freely, including its economic system. However,
establishing the aforementioned elements of prohibited intervention would depend on
the circumstances, including the extent of economic damage and the loss of
government control over economic policy.
Third, if State B’s conduct violated international law, it would entitle State A to
invoke the international legal responsibility of State B, and State A could demand
that State B cease the unlawful act/s (if they were continuing) and make full reparation
for State A’s injuries. Reparation could include restoring full access to relevant
websites and providing compensation for any financially assessable damage. As
international law governs the dispute, State A may seek to pursue resolution through
legal as well as political avenues including, for example, by seeking a resolution
consistent with the Charter of the United Nations, including Chapter VI (Pacific
21-09670
9/142
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