o
We think it could/should be clarified that the activities of “proxies” are acts of nonstate actors acting on the instructions of, or under the direction and control of a State.
o
In the second sentence, the notions of due diligence and effective control are
combined in a sense that is not in accordance with international law as it stands.
o
In the third and final sentence, it is not clear what “entities” refers to. A State entity is
a State organ, which has a different legal meaning than an entity which is under the
effective control of a state.
o
We share a text proposal for this specific paragraph:
30.
It was also recalled that under customary international law, the responsibilities
of States with regard to internationally wrongful acts extend to their use of ICTs. It
was recalled that States must not commit, or use proxies to commit internationally
wrongful acts using ICTs. Proxies are non-state actors acting on the instructions of, or
under the direction and control of a State. States and should seek to ensure that their
territory is not used by non-State actors acting on the instruction or under the control
of a State to commit internationally wrongful acts (alternative wording: acts contrary
to the rights of other states). The responsibility of States was also noted regarding
entities owned by or under the control of the State.
•
We are happy with the recognition of the progressive development of international law
regarding ICTs in the context of international security in paragraph 33. We would like to
propose to change the wording of “through opinio juris and State practice” to the terms used
in the pre-draft, namely, “through its practical application”.
•
We would suggest for the wording in par. 34 and 35 to be reflected in the conclusions and
recommendations, as we are of the opinion that this would be in line with views expressed
during the (informal) sessions. We believe that a recommendation could possibly also include
a reference to diverging views on International Law which need further study and in depth
discussion in the future. Therefore, in addition to our suggestion to reflect the wording of par.
34 and 35, we would propose to also reflect the language of par. 32 in the conclusions and
recommendations, with reference to the notion that, given the importance of continuity, we
would like to see a recommendation on the continuance of discussions on how international
law applies in cyber space - including on topics we do not necessarily agree on yet.
•
We welcome the inclusion of noting that greater focus could be placed on the settlement of
disputes by peaceful means in paragraph 36, which is also recognized in paragraph 38. We
would propose to expand paragraph 38 (new text in red):
States also reaffirmed the importance of the settlement of disputes by peaceful means. In
accordance with their obligations under article 2(3) and Chapter VI of the UN Charter, States
that are party to any international dispute involving the use of ICTs, the continuation of which
is likely to endanger the maintenance of international peace and security, shall settle their
international disputes by peaceful means. They shall, first of all, seek a solution to settle the
dispute through such means as described in Article 33 of the Charter: negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice.
Rules, Norms and Principles
•
We are happy with the mention of resolution 70/237 calling upon states to be guided in their
use of ICTs by the 2015 GGE report under both the discussions section (paragraph 47) as well
as the OEWG recommendation section (paragraph 60). We would like the 2010 and 2013 GGE
consensus reports to be added as well.