ICTs, and should seek to ensure that their territory is not used by States or non-State actors acting on
the instructtion or under the control of a State to commit such acts. The responsibility of States was
also noted regarding entities owned by or under the control of the State”. Another option would be to
use the previous version of this paragraph with an addition: “It was also noted that under customary
international law, the responsibilities of States with regard to internationally wrongful acts extend to
their use of ICTs, as well as the use of ICTs by their organs or by non-State actors acting on their
instruction or under their control. It was reaffirmed that States must not use proxies to commit
internationally wrongful acts using ICTs, and should seek to ensure that their territory is not used by
non-State actors to commit such acts”.
Regarding paragraph 34, we believe that it should be recalled that the applicability of IHL to
the use of ICTs in the context of an armed conflict is not to be debated, as it has been recognized
by consensus in 2015. We also believe that the modalities of how the principles of necessity
and humanity applies should not be studied as if they were stand-alone principles. IHL in itself
is a balance between those two principles. Discussions should be focused on how to apply the
principles of proportionality, distinction and precaution in order to ensure the right balance
between necessity and humanity.
Paragraph 36 is of concern for us, as we do not believe, regarding attribution, that there can be
a “one size fits all” approach. We do not call into question the need to reflect the idea of a
“universally accepted approach and understanding of the source of ICT incidents at the
technical level under the auspices of the UN”, but we believe that the fact that some States do
not agree with this approach should also be mentioned.
IV.
Rules, Norms and Principles for Responsible State Behaviour
France has several comments regarding that section.
First, even though we appreciate the willingness to showcase the propositions that have been
made regarding new norms, the status of the non-paper that would be annexed to the report is
not clear to us. We believe that this issue should be clarified. France would be in favour of
integrating to the report the elements meant to make already universally agreed norms more
explicit and study the possibility of adopting the proposed new norms in the context of the
recommended PoA.
Regarding paragraph 46, the mention of the resolution 2131(XX) is odd and should be either
specified with some contextual elements or suppressed as we do not recall discussing those
elements.
In paragraph 47, France believes that stronger language could be used when mentioning the 11
norms agreed in 2015. Though they are non-binding, they have been universally endorsed
through resolution 70/237 and their specific status should be underscored. Other norms such as
the norms mentioned in resolution 73/27 or the principles detailed in the Paris Call enjoy broad
support from various States and can be mentioned but they are not consensual at this stage.
Paragraph 49 seems to tackle three issues which do not appear to be interconnected – the aim
of this paragraph is not clear to us. The second sentence is of concern for us, as States have