A/66/152
(e) Resolution 64/211, in which the General Assembly invited all Member
States to take detailed stock of their national cybersecurity efforts to date, in the
above areas as well as others, using an annexed self-assessment tool, and to share
those successful measures and best practices that could assist other Member States
in their efforts.
B.
Norms applicable in the context of hostilities
Despite the unique attributes of information and communications technologies,
existing principles of international law serve as the appropriate framework within
which to identify and analyse the rules and norms of behaviour that should govern
the use of cyberspace in connection with hostilities. There are two distinct but
related bodies of law to consider in this regard: jus ad bellum and jus in bello. The
first provides the framework for considering whether an incident in cyberspace rises
to the level of a use of force triggering a nation’s right to self-defence. The second
provides the framework for identifying the rules governing the use of cyberspace in
the context of an armed conflict.
Jus ad bellum. Much of the legal framework governing the use of force and
self-defence is derived from three provisions of the Charter of the United Nations:
(a) Article 2(4) of the Charter provides that “[a]ll Members shall refrain in
their international relations from the threat or use of force against the territorial
integrity or political independence of any state …”;
(b) Article 39 of the Charter establishes the Security Council as the arbiter of
whether a threat to the peace, breaches of the peace, or acts of aggression have
occurred, and charges the Security Council with making recommendations or
decisions as to what measures under Articles 41 or 42 of the Charter are appropriate
in response;
(c) Article 51 of the Charter recognizes and reinforces the principle that
“[n]othing in the present Charter shall impair the right of individual or collective
self-defence if an armed attack occurs against a Member of the United Nations, until
the Security Council has taken measures necessary to maintain international peace
and security”.
It may be difficult to reach a definitive legal conclusion as to whether a
disruptive activity in cyberspace constitutes an armed attack triggering the right to
self-defence. For example, where the threat actor and the motive are unknown, and
effects result that do not directly cause substantial death or physical destruction, it
may be possible to reach differing conclusions about whether an armed attack has
occurred. However, such ambiguities and room for disagreement do not suggest the
need for a new legal framework specific to cyberspace. Instead, they simply reflect
the challenges in applying the Charter framework that already exists in many
contexts. Nevertheless, under some circumstances, a disruptive activity in
cyberspace could constitute an armed attack. In that context, the following
established principles would apply:
(a) The right of self-defence against an imminent or actual armed attack
applies whether the attacker is a State actor or a non-State actor;
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