16.
Recalling that the question ‘if international law applies to state conduct in cyberspace’ has been
resolved in the affirmative and that the focus is now on how it applies, States discussed how to
address this question. Noting the agreement that existing international law (complemented by
voluntary norms of responsible state behavior, confidence building measures and capacity
building) already provides a binding framework for addressing State conduct in cyberspace,
some States expressed the view that the most efficient and effective way to address outstanding
questions is for States to publicly articulate views on the application of specific rules of
international law and to behave consistent with those positions. If States are committed, this
process could quickly deliver clarity and deepen understandings on key questions of how
international law applies to state conduct as well as contributing to the development of
applicable customary international law. Development of norms implementation guidance would
complement efforts to clarify responsible State behavior in cyberspace, as would capacity
building to facilitate broad and meaningful participation. Combined, this would promote more
effective implementation and greater adherence to international law and the agreed norms, as
well as a stronger basis for holding States accountable for their actions in cyberspace. This path
would also avoid protracted treaty negotiations, which may give rise to proposals that seek to
erode the full suite of rights, obligations and protections afforded by existing international law,
and which after its negotiation would necessarily require interpretation similar to that described
in the preceding sentences. [Some States expressed the view that existing international law,
complemented by the voluntary, non-binding norms that reflect consensus among States, is
currently sufficient for addressing State use of ICTs. It was also proposed that efforts
should focus on reaching common understanding on how the already agreed normative
framework applies through the development of additional guidance, and can be operationalized
through enhancing implementation by all States. At the same time, other States expressed
the view that due to the quickly evolving nature of the threat environment and the severity of
the risk, an n e w internationally agreed legally binding framework on ICTs is needed. It
was also suggested that such a binding framework may lead to more effective global
implementation of commitments and a stronger basis for holding actors accountable for
their actions. States stressed that the development of any international legal framework to
address issues related to the use of ICTs with implications on international peace and
security should take into account the concerns and interests of all States, be based on
consensus, and pursued within the UN with the active and equal participation of all States.
17. It was highlighted that while existing bodies of international law do not include specific
reference to the use of ICTs in the context of international security, they nevertheless apply
to State activities in cyberspace, and further that international law can develop progressively,
including through opinio juris and State practice. The possibility over time of developing
f u r t h e r complementary binding measures concurrently with the implementation of norms
was raised . Furthermore, a political commitment was proposed as one possible way forward.
18. While recalling that international law, and in particular the Charter of the United Nations
applies in the use of ICTs, it was highlighted that certain questions on how international law
applies to the use of ICTs have yet to be fully clarified. Some States proposed that such
questions include, inter alia, the kind of ICT-related activity that might be interpreted by other
States as a threat or use of force (Art. 2(4) of the Charter) or that might give a State cause to
invoke its inherent right to self-defence (Art. 51 of the Charter). They also include questions
relevant to how the principles of international humanitarian law, such as principles of
humanity, necessity, proportionality, distinction and precaution, apply to ICT operations. In
this regard, some States noted that discussions on the applicability of international
humanitarian law to the use of ICTs by States needed to be approached with prudence. States
noted that further study was required on these important topics in future discussions.
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