32 Fifth Report Annex B 7. Bolivia also offered a positive response. But its answer focused on the international law “to be applied in armed conflicts,” offering views on how to differentiate when international humanitarian law (IHL) would (and would not) apply.12 As such, it is not clear whether Bolivia’s positive response extends to the application of other sub-fields of international law beyond the jus ad bellum and the jus in bello. 8. Guatemala and Guyana both expressed positive support for international law’s application. Yet, both offered caveats about how universally the extant law might apply. Without offering any examples, Guatemala noted that there could be areas where “the novelty of cyberspace does preclude the application of certain international rights or obligations.”13 Guyana, meanwhile, noted that “cyber operations do not fit into traditional concepts” and pointed out “a raging debate as to whether existing fields of international law apply to cyberspace.”14 Acknowledging the prior work of the GGE, Guyana “respectfully submitted that while it is acknowledged that international law should or ought to apply to cyberspace, it is difficult to easily apply existing principles” such as the use of force which “traditionally implies some physical element and armed attacks which traditionally imply some sort of weapon.”15 9. Thus, even as the overall application of international law to cyber operations appears well entrenched, these last two responses suggest the need for further dialogue and discussion. It would be useful to identify which particular areas of international law’s application give certain States pause and why. Doing so would help illuminate just how much convergence (or divergence) of views exist on how international legal regimes govern State and State-sponsored cyber operations. 10. Comments by Member States to the OEWG reinforce these points. They reflect a broad consensus that international law, including the UN Charter, applies to cyberspace. Canada, Chile, Colombia, Mexico, Uruguay, and the Bolivia Response, supra note 1, at 2-7. Thus, Bolivia suggested that IHL would not govern cyber-operations involving national security, propaganda, espionage, manipulation of strategic critical infrastructure, cyber operations with political objectives, or those hacking into private systems putting at risk the state’s economic and social operations. Id. at 3-7. 13 Guatemala Response, supra note 1, at 1-2. 14 Guyana Response, supra note 1, at 1-2 15 Id. 12 Inter-American Juridical Committee United States all made this point quite explicitly.16 Some States (e.g., Nicaragua and Venezuela (represented by the Maduro regime)) questioned the suitability of existing international law in cyberspace even as they accepted its application in that context.17 Several other comments added a new layer of concern not raised in the Committee Questionnaire responses – i.e., whether differences in legal capacity might impact the law’s actual application or evolution (as States who possess advanced cybersecurity infrastructure may have a corresponding capacity to disproportionately influence the content and boundaries of rules for cyberspace over States lacking such a capacity).18 Question 3 Can a cyber operation by itself constitute a use of force? Can it constitute an armed attack that triggers a right of self-defense under Article 51 of the UN Charter? Can a cyber operation qualify as a use of force or armed attack without causing the violent effects that have been used to mark such thresholds in past kinetic conflicts? 11. Most (but not all) States appear to accept the application of international law on the use of force (e.g., the jus ad bellum) to their cyber operations. This question sought to identify which States in the region adhere to this dominant view versus alternative positions. At the same time, additional application questions have arisen among States who accept the jus ad bellum in cyberspace, most notably the extent to which thresholds for the “use of force” or See Canada Comments, supra note 5; Colombia Comments, supra note 5; Chile comments, supra note 5; Mexico Comments, supra note 5; United States comments, supra note 5; Uruguay Comments supra note 5. 17 Nicaragua Comments, supra note 5 (suggesting we are faced with the “poor applicability” of international law in this sphere but “does not deny in principle that IL is applicable to the sphere of ICTs”); Venezuela Comments, supra note 5 (reaffirming a need to “adapt the international law to the context of ICTs, considering the legal gaps that exist”). In its comments to the OEWG, Argentina called for bifurcating the OEWG’s suggestions on clarifying the application of the prohibition on the use of force and IHL See Argentina Comments, supra note 5. 18 See, e.g., Mexico Comments, supra note 5; Bolivia Comments supra note 5; Ecuador Comments, supra note 5. 16 International Law and State Cyber Operations 33