Definition

CollapseTargeted restrictive measures

The term “targeted restrictive measures” denotes sanctions taken by States outside of the framework of the United Nations, against individuals or companies which are being held responsible for conducting – or being otherwise involved in the conduct of – a cyber operation. Typically, restrictive measures take the form of travel bans or asset freezes for individuals and companies, but may also include other measures.[1] Targeted restrictive measures are measures typically taken within the domestic legal framework of a State or a group of States and operate territorially within the jurisdiction of that State or group of States. By virtue of their internal sovereignty, States are in principle free to adopt any measures they consider necessary or appropriate with regard to persons engaged in cyber activities.[2] To assess the legality of such restrictive measures taken within the domestic legal framework, it is necessary to inquire whether they violate any applicable international legal obligations of the acting State. This may be the case, for instance, if the targeted persons or entities enjoy jurisdictional immunities[3] or if the measures in question affect rights granted by an international agreement between the acting State and the State where such persons or entities are based (such as a bilateral trade agreement). In this case, the acting State would need to be able to invoke circumstances precluding the wrongfulness of such measures, in order for their imposition to be justified.[4] If no international legal obligations are breached, the restrictive measures are permissible under international law and may be qualified at most as acts of retorsion. Provided that these conditions are met, States may also impose such restrictive measures collectively.[5] Publicly available national positions that address this issue include: (2019), (2019).

National positions

Estonia (2019)

“More than simply attributing, we must take a stance that harmful cyber operations cannot be carried out without consequences. One good example would be EU’s Cyber Diplomacy Toolbox, which foresees a framework for joint EU diplomatic response to malicious cyber activities. Two weeks ago, EU Member States agreed on a horizontal framework which will allow to impose restrictive measures, or sanctions, against malicious cyber operations in similar manner as it is possible for terrorist acts or use of chemical weapons. Several allies have already taken diplomatic steps or set in place economic restrictive measures against adversarial states, or individuals responsible for harmful cyber operations.”^[6]

Netherlands (2019)

“As the international debate on the application and scope of international law in cyberspace proceeds, some countries continue to engage in harmful activities. Diplomatic measures against undesirable state-led cyber operations, ideally coordinated at international level or in coalition with like-minded countries, can be an effective way to strengthen the international legal order and protect security interests at home and abroad. The government is therefore working to strengthen our capacity to mount a diplomatic and political response to cyber operations that undermine our interests. The international response after the foiled cyber operation targeting the OPCW is a good example of this. The efforts of the mission network are essential in this respect, so as to ensure coordinated action. When assessing the options for responding, the focus above all must be on carefully and comprehensively weighing up the Netherlands’ interests, including those in the realm of security.

In order to provide further structure to international cooperation at EU level, an EU cyber diplomacy ‘toolbox’ has been developed, at the Netherlands’ initiative.6 The toolbox is a framework which allows various instruments of the Common Foreign and Security Policy to be used to hold parties conducting harmful cyber activities to account. In this connection, on 17 May 2019 an EU cyber sanctions regime was introduced at the Netherlands’ initiative, making it possible to freeze assets and impose entry bans.”^[7]

Appendixes

See also

Notes and references

Definition

CollapseState responsibility

Responsibility of States for internationally wrongful acts is a well-established concept in international law, resulting from the fact that each State has a legal personality and can bear legal obligations.[1] The law of State responsibility is largely customary in nature; its codification is provided by the International Law Commission’s Articles on State Responsibility.[2] While some of the Articles are more controversial, they are generally accepted as reflective of customary law.[3] The law of State responsibility also applies to cyber operations and other cyber activities.[4] Every internationally wrongful act of a State – entailing both acts and omissions –, has two elements: 1) attributability to the State under international law, and 2) breach of an international obligation of the State.[5]Besides these two elements, it is necessary to ascertain whether the act in question involved any 3) circumstances precluding wrongfulness.[6] An internationally wrongful act entails the State’s international responsibility and gives rise to legal consequences, including the obligation to cease the conduct (if applicable) and the obligation to make full reparation for the injury caused.[7] Publicly available national positions that address this issue include: (2020), (2021), (2022), (2023), (2023), (2019), (2021), (2020), (2021), (2021), (2020), (2021), (2022), (2021), (2021), (2022), (2021), (2018), (2021), (2022), (2021).

National positions

Australia (2020)

“The customary international law on State responsibility, much of which is reflected in the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts, applies to State behaviour in cyberspace. Under the law on State responsibility, there will be an internationally wrongful act of a State when its conduct in cyberspace – whether by act or omission – is attributable to it and constitutes a breach of one of its international obligations.”^[8]

Brazil (2021)

“Brazil agrees with the basic principle according to which “every internationally wrongful act of a State entails the international responsibility of that State”. This is a customary norm that has been confirmed by international tribunals on several occasions and that has been codified by the International Law Commission (ILC). According to customary international law, as codified by the ILC, an internationally wrongful act is an action or omission that is attributable to a state and constitutes a breach of its international obligations. By analogy, if a cyber operation attributable to a state breaches its international obligations, the state is responsible for this internationally wrongful act.

While many norms on state responsibility are generally considered customary international law, as reflected in the articles emanated from the ILC, there are other rules whose legal status is still unclear. The General Assembly took note of the ILC articles on state responsibility for internationally wrongful acts in its Resolution 56/83 of 2001. It has also commended the articles to the attention of governments without prejudice to the question of their future adoption. The ILC articles on state responsibility have been under consideration of the General Assembly for 18 years, and the debates on this issue at its Sixth Committee demonstrate that states have divergent views on their legal status.”^[9]

Canada (2022)

“28. The international law of State responsibility applies across the whole spectrum of substantive areas of international law, including in cyberspace. It governs such issues as the attribution of internationally wrongful acts to States. It also addresses circumstances precluding wrongfulness, including countermeasures, and possible remedies. The law of State responsibility is not concerned with the legality of the use of force, including in self-defence, which is a separate area of international law.

29. In Canada’s view, this well-established body of international law is not only applicable, but highly relevant in relation to contemporary cyber activities. To date, all publicly known malicious cyber activities have been widely interpreted by States as falling below the threshold (or thresholds) of the threat or use of force or armed attacks.”^[10]

“30. An internationally wrongful act in the cyber context is a cyber-related action or omission that: constitutes a breach of an international legal obligation, whether to another State or the entire international community; and is attributable to a State under international law.

31. International law recognises exceptions to what would otherwise be internationally wrongful acts. Examples include cases of self-defence and countermeasures.”^[11]

Costa Rica (2023)

“10. Costa Rica believes that, under customary international law, as codified in Articles 1 and 2 of the International Law Commission (ILC)’s Articles on Responsibility of States for Internationally Wrongful Acts (‘the ILC Articles’), cyber operations may amount to internationally wrongful acts engaging the responsibility of a State when they can be attributed to it and involve a breach of its international obligation(s).”^[12]

Denmark (2023)

“Denmark is of the view that the general rules of State responsibility apply in cyberspace. A State bears international responsibility if it breaches an international obligation owed to another State. A State may be responsible under international law for acts undertaken by an organ of the State or by actors exercising government authority on behalf of that State. Acts by a non-State actor may be attributable to a State where the non-State actor carries out a cyber operation under the instruction of, or under the direction or control of that State, or where the State actor acknowledges and adopts the operations carried out by the non-State actor as its own.

Each State may decide whether to publicly attribute cyber acts to other States or not. There is no obligation under international law for States to share documentation or other evidence supporting an attribution. The application of international law and State responsibility does not depend on public attribution.”^[13]

Estonia (2019)

“[…] states are responsible for their activities in cyberspace. Sovereignty entails not only rights, but also obligations. States are responsible for their internationally wrongful cyber operations just as they would be responsible for any other activity based on international treaties or customary international law. This is the case whether or not such acts are carried out by state organs or by non-state actors supported or controlled by the state. States cannot waive their responsibility by carrying out malicious cyber operations via non-state actors. If a cyber operation violates international law, this needs to be called out.”^[14]

Estonia (2021)

The law of state responsibility is a cornerstone for responsible state behaviour in cyberspace when it comes to assessing the unlawfulness of cyber operations below the threshold of use of force.

“The law of state responsibility includes key principles that govern when and how a state is held responsible for cyber operations that constitute a breach of international obligation, by either an act or an omission. A cyber operation can constitute an internationally wrongful act if it is attributable under international law and it constitutes a breach of international obligation under the law of state responsibility. States must comply with customary international law mirrored in the Articles for Responsibility of States for Internationally Wrongful Acts.

States are responsible for their activities in cyberspace. States are accountable for their internationally wrongful cyber operations just as they would be responsible for any other activity according to international treaties or customary international law. State responsibility applies regardless of whether such acts are carried out by a state or non-state actors instructed, directed or controlled by a state.

States cannot waive their responsibility by carrying out malicious cyber operations via non-state actors and proxies. For example, if a hacker group launches cyber operations which have been tailored according to instructions from a state, or the cyber operations are directed or controlled by that state, state responsibility can be established.”^[15]

“In order to enforce state responsibility, states maintain all rights to respond to malicious cyber operations in accordance with international law. If a cyber operation is unfriendly or violates international law obligations, injured states have the right to take measures such as retorsions, countermeasures or, in case of an armed attack, the right to self-defence. These measures can be either individual or collective. The main aim of reactive measures in response to a malicious cyber operation is to ensure responsible state behaviour in cyberspace and the peaceful use of ICTs.”

[…]

“According to Article 2(a) of ARSIWA, an internationally wrongful act of a state has taken place when the conduct consisting of an action or omission is attributable to a state and the action or omission is wrongful under international law.”^[16]

Finland (2020)

“The law of State responsibility consists of secondary rules that apply generally in the absence of clear specific rules that modify their effect. As there is no specific regulation concerning State activities in cyberspace that would constitute such lex specialis, it can be concluded that the normal rules of State responsibility apply in cyberspace. When a State’s cyber operation violates its obligations under international law, it constitutes an internationally wrongful act. An internationally wrongful act of a State entails its international responsibility and gives rise to an obligation to make full reparation for the damage that may be caused by the act. This requires that the act is attributable to the State. The rules of attribution reflected in the UN International Law Commission’s Articles on State Responsibility remain fully valid in cyberspace. If State organs, or private groups or individuals acting on behalf of the State, can be identified as the authors of a cyber operation that violates the State’s international obligations, its international responsibility is engaged.”^[17]

Italy (2021)

“Italy concurs with the view that attribution of cyber wrongful acts from one State to another is governed by the general rules of international law on the attribution of State conduct as codified by the International Law Commission (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA). Still, Italy acknowledges the difficulties of applying the ARSIWA in a peculiar environment such as cyberspace.”^[18]

Japan (2021)

“Internationally wrongful acts committed by a State in cyberspace entail State responsibility. An internationally wrongful act occurs when the conduct of a State consisting of an action or omission violates an obligation prescribed by primary rules of international law. In the case of cyber operations as well, there is an internationally wrongful act when a State violates primary rules, including the principles of sovereignty, non-intervention, prohibition of the use of force, as well as various principles of international humanitarian law such as the principle of prohibition of attacks on civilian objects, and respect for basic human rights.”^[19]

“Regarding cyber operations as well, a State responsible for an internationally wrongful act is under the following obligations. First, the State shall cease the act if it is continuing. In addition, the State shall offer appropriate assurances and guarantees of non-repetition, if circumstances so require. Besides, the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.”

[…]

“There is an internationally wrongful act of a State when the act is attributable to the State under international law and when the act constitutes a breach of an obligation of the State under international law.”^[20]

New Zealand (2020)

“Where a state is subject to cyber activity that amounts to an internationally wrongful act, it may also invoke the international legal responsibility of the responsible state. States are responsible for internationally wrongful acts that can be attributed to them, including wrongful cyber activities.”^[21]

Norway (2021)

Key message

In order for a State to be held internationally responsible for a cyber operation, the operation has to be attributable to the State under international law. A State may also be held responsible under international law if it possesses knowledge of a cyber operation that is being carried out from its territory and causing serious adverse consequences with respect to a right of the target State under international law, and fails to take reasonably available measures to terminate the cyber operation.

“The general rules on State responsibility under international law apply to cyber operations just as they apply to other activities.

In order for a State to be held responsible for a cyber operation under international law, it is a condition that the cyber operation is attributable to the State under international law. Both State and non-State actors conduct cyber operations. Even if a cyber operation is not conducted by someone acting directly or indirectly on behalf of a State, the State may nevertheless be held responsible under international law if it fails to take adequate measures against cyber operations that target third States from or via its territory.”^[22]

Poland (2022)

6. A state is responsible for actions in cyberspace that violate international law

“Norms of customary international law concerning the assignment of responsibility to a state are reflected to a large extent in the articles covering the states’ responsibility for internationally wrongful acts as adopted in 2001 by the International Law Commission (hereinafter referred to as “Articles on the Responsibility of States”).”^[23]

Romania (2021)

“There is an internationally wrongful act of a State when conduct consisting of an action or omission is:

• attributable to the State under international law; and
• constitutes a breach of an international obligation of the State

Therefore, from the perspective of state responsibility under international law, attribution is one of the components”.^[24]

[…]

“Once attributed to a State and determined that the conduct constitutes a breach of an international obligation (the 2nd component), the international responsibility of that State is entailed and can be invoked by the injured State either individually (if the obligation breached is owed to that State or if that State was otherwise affected by the conduct) or collectively with other States if the obligation breached was owed to a group of States (including that State) or to the international community as a whole; the invocation of the responsibility of a State is a matter of political choice; however, the responsibility of a State for an international wrongful act is an objective circumstance from the legal standpoint, which exists independent of its invocation by the injured State(s); nevertheless, under draft articles of State responsibility there is a certain procedure to be followed by the injured State invoking the responsibility of another State (therefore a pubic invocation may not suffice).”^[25]

Russia (2021)

“The possibility of attributing responsibility for particular actions in information space to States demands further study on the basis of the existing international law. The international responsibility of a State is conditioned to the commission of an internationally wrongful act by this State. According to the Articles on Responsibility of States for Internationally Wrongful Acts (elaborated by the UN International Law Commission in 2001, taken note in the UNGA resolution A/RES/56/83), there is an internationally wrongful act of a State when conduct consisting of an action or omission: 1) is attributable to the State under international law; 2) constitutes a breach of an international legal obligation of the State. The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law (article 3).”^[26]

[…]

“Under customary international law, a State is responsible for activities of its institutions, as well as that of individuals acting under its control. In information space it may be difficult to determine whether an individual is acting under control of a State or with its acquiescence. In this regard, it becomes increasingly relevant to formalize the norm of the 2015 GGE report stating that all accusations of organizing and implementing wrongful acts brought against States should be substantiated, as legally binding. In any case, one should refrain from publicly imposing responsibility for an incident in information space on a particular State without supplying necessary technical evidence.”^[27]

Sweden (2022)

“An internationally wrongful act by a State entails the responsibility of that State under international law. The articles on State responsibility drafted by the International Law Commission constitute secondary norms of international law, identifying conditions when a State is internationally responsible for wrongful acts and the effects thereof. The general norms on State responsibility apply also in relation to wrongful acts in the cyber context.

Technical difficulties pose new challenges in identifying those responsible for cyber operations, compared with kinetic operations, but the rules on attribution under the law of State responsibility also apply in a cyber context.”^[28]

Switzerland (2021)

“The customary international rules on state responsibility are largely reflected in the draft articles issued by International Law Commission. They are also applicable to cyber incidents. They provide that any state action in violation of international law shall entail the international responsibility of that state, upon which a claim for full reparation may be made. This only applies if the action can be legally attributed to the state and is deemed to constitute an internationally wrongful act, i.e. in violation of international law.”^[29]

United Kingdom (2018)

“There are obviously practical difficulties involved in making any attributions of responsibilities when the action concerned is capable of crossing traditional territorial boundaries and sophisticated techniques are used to hide the identity and source of the operation. Those difficulties are compounded by the ready accessibility of cyber technologies and the resultant blurring of lines between the actions of governments and those of individuals.

The international law rules on the attribution of conduct to a state are clear, set out in the International Law Commissions Articles on State Responsibility, and require a state to bear responsibility in international law for its internationally wrongful acts, and also for the acts of individuals acting under its instruction, direction or control.”^[30]

United Kingdom (2021)

“A State is responsible under international law for cyber activities that are attributable to it in accordance with the rules on State responsibility. The responsibility of a State for activities that occur on its territory including in relation to activities in cyberspace is therefore determined in accordance with the rules of international law on State responsibility.”^[31]

United Kingdom (2022)

“I should also add that the nature of cyberspace means that it may not be evident, at least at first, whether a State is responsible for a particular action. This is also a space in which criminal gangs operate for financial profit. To be clear, State direction or control of non-State actors who undertake cyber operations of the kind I have described today would also represent unlawful conduct by that State, in line with international law on State responsibility. Cyber is no different from other spheres of activity in this sense. Provided that it is exercising the requisite degree of direction or control, a State is no less responsible for internationally unlawful cyber operations conducted by a ransomware gang than it would be for the unlawful actions of an armed group, or a corporation.”^[32]

United States (2021)

“Both the 2013 and 2015 GGE reports concluded that States must meet their international obligations regarding internationally wrongful acts attributable to them under international law. In addition, they must not use proxies to commit internationally wrongful acts using ICTs.

Under the law of State responsibility, a State is responsible for an internationally wrongful act when there is an act or omission that is attributable to it under international law that constitutes a breach of an international obligation of the State. Cyber activities may therefore constitute internationally wrongful acts under the law of State responsibility if they are inconsistent with an international obligation of the State and are attributable to it.”^[33]

Appendixes

See also

Notes and references

National positions

Costa Rica (2023)

“58. IHL affords specific protection to certain persons, objects and activities, such as medical personnel and units; humanitarian personnel and relief objects; and objects indispensable to the survival of the civilian population.”^[1]

Sweden (2022)

“Cyber operations in the context of an armed conflict need to comply not only with rules governing the conduct of hostilities; certain persons, objects and activities are subject to special protection, such as medical personnel and units, including their cyber infrastructure, and religious or humanitarian personnel and objects.”^[2]

Switzerland (2021)

“Full compliance with IHL is not limited to the rules and principles governing the conduct of hostilities. There are other specific rules of IHL that must be respected, including when conducting military operations that do not qualify as an ‘attack’. For example, certain categories of persons and objects are subject to special protection, such as medical, religious or humanitarian personnel and objects, which must be respected and protected in all circumstances.

This is also applicable to cyberspace. For cyber operations that are linked to any of these specially protected persons or objects, or to other activities governed by IHL, all of the relevant, specific rules must be observed.”^[3]

Appendixes

See also

Notes and references

Definition

CollapseSovereignty

Sovereignty is a core principle of international law. According to a widely accepted definition of the term in the 1928 Island of Palmas arbitral award, [s]overeignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.[1] Multiple declarations by the UN,[2] NATO,[3] OSCE,[4] the European Union,[5] and individual States have confirmed that international law applies in cyberspace. Accordingly, so too does the principle of sovereignty.[6] However, there is some debate as to whether this principle operates as a standalone rule of international law, the breach of which gives rise to state responsibility. For the proponents of this view, the prohibition on violating the sovereignty of other States is a substantive primary rule of international law, the breach of which is an internationally wrongful act. This view was unanimously accepted by the experts who prepared the Tallinn Manual 2.0.[7] It has also been adopted by several States including Austria,[8] Brazil, [9] Canada,[10] the Czech Republic,[11] Estonia,[12] Finland,[13] France,[14] Germany,[15] Iran,[16] Italy,[17] Japan,[18] the Netherlands,[19] New Zealand,[20] Norway,[21] Romania[22] and Sweden.[23] By contrast, the opposing view is that sovereignty is a principle of international law that may guide State interactions, but it does not amount to a standalone primary rule.[24] This view has been adopted by one State, the United Kingdom,[25] and has been partially endorsed by the U.S. Department of Defense General Counsel.[26] By this approach, cyber operations cannot violate sovereignty as a rule of international law, although they may constitute prohibited intervention, use of force, or other internationally wrongful acts. The remainder of this section proceeds on the basis of the former “sovereignty-as-rule” approach. Those espousing the latter “sovereignty-as-principle” approach should refer to other relevant sections of the legal analysis (such as that on the prohibition of intervention or use of force). It is understood that sovereignty has both an internal and an external component.[27] In the cyber context, the “internal” facet of sovereignty entails that “[a] State enjoys sovereign authority with regard to the cyber infrastructure, persons, and cyber activities located within its territory, subject to its international legal obligations.”[28][29] This encompasses both private and public infrastructure.[30] The external component entails that States are “free to conduct cyber activities in [their] international relations”, subject to their international law obligations.[31] As a general rule, each State must respect the sovereignty of other States.[32]However, within the cyber realm – and particularly regarding remote cyber operations – there is still no agreement on the criteria[33] and the required threshold[34] to qualify an operation as a sovereignty violation.[35] It is clear that a cyber operation with severe destructive effects, comparable to a “non-cyber” armed attack or a use of force against a State, constitutes a violation of its sovereignty; however, with more subtle cyber operations, the question is far from settled.[36] Accordingly, the assessment needs to be done on a case-by-case basis.[37] The following modalities, highlighted in the Tallinn Manual 2.0, represent different ways of determining what a “sovereignty violation” might mean in the context of cyber operations: A State organ conducting cyber operations against a target State or entities or persons located there while physically present in the target State’s territory violates the target State’s sovereignty.[38] This was agreed by all Experts drafting the Manual; however, “a few” of the Experts thought that the extensive State practice carved out an exception for espionage operations.[39] Causation of physical damage or injury by remote means;[40] again, “a few” Experts took the position that this is a relevant but not a determinative factor by itself.[41] Causation of a loss of functionality of cyber infrastructure: although the Tallinn Manual 2.0 experts agreed that a loss of functionality constituted “damage” and thus a breach of sovereignty, no consensus could be achieved as on the precise threshold for a loss of functionality (the necessity of reinstallation of the operating system or other software was proposed but not universally accepted);[42] Below this threshold, there was no agreement among the Experts whether operations that do not cause physical consequences or a loss of functionality qualify as a violation of sovereignty.[43] Interference with data or services that are necessary for the exercise of “inherently governmental functions“;[44] although the Experts could not conclusively define the term “inherently governmental functions”, they agreed that, for example, the conduct of elections would so qualify.[45] Usurpation of “inherently governmental functions”, such as exercise of law enforcement functions in another State’s territory without justification.[46] The Tallinn Manual’s view of what constitutes a violation of sovereignty has been expressly endorsed by several States including Canada,[47] Germany[48] and the Netherlands;[49] and followed to some extent by other States, such as the Czech Republic,[50] Norway,[51] Sweden[52] and Switzerland.[53] An alternative test has been proposed by France, which argues that a breach of sovereignty occurs already when there is “any unauthorised penetration by a State of [the victim State’s] systems”;[54]similarly, Iran has argued that “unlawful intrusion to the (public or private) cyber structures” abroad may qualify as a breach of sovereignty.[55] Attributing the relevant cyber operation to a State different from the target State is a necessary prerequisite for qualifying the cyber operation as a violation of the target State’s sovereignty. Whether non-State actors can violate territorial sovereignty on their own is a matter of disagreement.[56] Publicly available national positions that address this issue include: (2020), (2021), (2022), (2021), (2023), (2020), (2023), (2019), (2021), (2020), (2019), (2021), (2020), (2023), (2020), (2021), (2021), (2021), (2019), (2020), (2021), (2023), (2022), (2021), (2021), (2022), (2021), (2018), (2021), (2022), (2012), (2016), (2020), (2021).

National positions

Australia (2020)

“To the extent that a State enjoys the right to exercise sovereignty over objects and activities within its territory, it necessarily shoulders corresponding responsibilities to ensure those objects and activities are not used to harm other States.”^[57]

Brazil (2021)

“State sovereignty is one of the founding principles of international law. As the ICJ has stated in the Corfu Channel Case, “between independent States, the respect for territorial sovereignty is an essential foundation for ‘international relations’”. It is applicable as a standalone rule, including to the use of ICTs by States, and entails an independent obligation of “every State to respect the territorial sovereignty of others”. Currently, there is neither broad state practice nor sufficient opinio juris to generate new customary international norm allowing for the violation of State sovereignty, including by means of ICTs.

Violations of State sovereignty by another State, including by means of ICTs, constitute an internationally wrongful act and entail the international responsibility of the State in violation. Interceptions of telecommunications, for instance, whether or not they are considered to have crossed the threshold of an intervention in the internal affairs of another State, would nevertheless be considered an internationally wrongful act because they violate state sovereignty. Similarly, cyber operations against information systems located in another State’s territory or causing extraterritorial effects might also constitute a breach of sovereignty.”^[58]

Canada (2022)

“10. Sovereignty is a fundamental element of international law and international relations. It is axiomatic that the principle of sovereignty applies in cyberspace, just as it does elsewhere. It animates a number of obligations for all States.”^[59]

“13. Territorial sovereignty is a rule under international law.^[60] Every State must respect the territorial sovereignty of every other State. States enjoy sovereignty over their territory, including in particular infrastructure located within their territory and activities associated with that infrastructure. An infringement upon the affected State’s territorial integrity, or an interference with or usurpation of inherently governmental functions of the affected State, would be a violation of territorial sovereignty.^[61]“^[62]

“14. In assessing the possible infringement of a State’s territorial sovereignty, several key factors must be considered. The scope, scale, impact or severity of disruption caused, including the disruption of economic and societal activities, essential services, inherently governmental functions, public order or public safety must be assessed to determine whether a violation of the territorial sovereignty of the affected State has taken place.

15. In general, the impact or severity of cyber effects will be evaluated in the same manner and according to the same criteria as for physical activities. Cyber activities that rise above a level of negligible or de minimis effects, causing significant harmful effects within the territory of another State without that State’s consent, could amount to a violation of the rule of territorial sovereignty with respect to the affected State. It is also important to note that cyber activities with effects in another State do not constitute physical presence in the territory of that State. As such, territorial sovereignty is not violated by virtue merely of remote activities having been carried out on or through the cyber infrastructure located within the territory of another State. Furthermore, cyber activities carried out remotely from within Canada with negligible effects in a foreign State do not involve an extraterritorial exercise of enforcement jurisdiction by Canada.

16. Cyber activities that cause a loss of functionality with respect to cyber infrastructure located within the territory of the affected State may also constitute a violation of territorial sovereignty if the resulting loss of functionality causes significant harmful effects similar to those caused by physical damage to persons or property. For example, a violation of the territorial sovereignty will occur when the cyber activity creates a significant harmful effect that necessitates the repair or replacement of physical components of cyber infrastructure in the affected State. The loss of functionality of physical equipment that relies on the affected infrastructure in order to operate could also form part of the violation. The assessment of the effects includes both intended and unintended consequences that reach the threshold required to trigger a violation.

17. The rule of territorial sovereignty does not require consent for every cyber activity that has effects, including some loss of functionality, in another State. Activities causing negligible or de minimis effects would not constitute a violation of territorial sovereignty regardless of whether they are conducted in the cyber or non-cyber context. Nor are States precluded by the rule of territorial sovereignty from taking measures that have negligible or de minimis effects to defend against the harmful activity of malicious cyber actors or to protect their national security interests. For example, Canada considers that a cyber activity that requires rebooting or the reinstallation of an operating system is likely not a violation of territorial sovereignty.

18. The other key basis for assessing a violation of territorial sovereignty is whether a cyber activity interferes with or usurps the inherently governmental functions of another State. Cyber activities that have significant harmful effects on the exercise of inherently governmental functions would constitute an internationally wrongful act. For Canada, this would include government activities in areas such as health care services, law enforcement, administration of elections, tax collection, national defence and the conduct of international relations, and the services on which these depend. There can be a violation of territorial sovereignty by way of effects on governmental functions regardless of whether there is physical damage, injury, or loss of functionality. An example would be a cyber activity that interrupts health care delivery by blocking access to patient health records or emergency room services, resulting in risk to the health or life of patients.

19. Importantly, some cyber activities, such as cyber espionage, do not amount to a breach of territorial sovereignty, and hence to a violation of international law.^[63] They may however be prohibited under the national laws of a State.^[64]

20. It is possible that a series of cyber activities could lead to significant harmful effects that violate the rule of territorial sovereignty. This is the case even if the individual cyber activity on its own would not reach this threshold.

21. Canada will assess whether a violation of territorial sovereignty has occurred on a case-by-case basis. As noted below, Canada believes further State practice and opinio juris will help clarify the scope of customary law in this area over time. In any event, Canada considers that the existence of varied approaches to assessing the legality of cyber activities should not prevent States from agreeing that particular malicious cyber activities are internationally wrongful acts.”^[65]

China (2021)

“The principle of sovereignty applies in cyberspace. States should exercise jurisdiction over the ICT infrastructure, resources, data as well as ICT-related activities within their territories, and have the rights to protect their information systems and important data against damage resulting from threats, interference, attack and sabotage. States have the right to make ICT-related public policies, laws and regulations to protect legitimate interests of their citizens, enterprises and social organizations. States should refrain from using ICTs to interfere in intermal affairs of other States and undermine their political, economic and social stability, or to conduct activities that undermine other States’ national security and public interests. States should participate in the management and distribution of international Internet resources on equal footings, and build a global Internet governance system of multilateralism, democracy and transparency.”^[66]

“State sovereignty in cyberspace is a legally binding principle under international law. If a State infringes on the internal supremacy and external independence that another State enjoys on the basis of its national sovereignty over ICT-related infrastructure, entities and activities as well as relevant data and information within its territory, it is a violation of the principle of sovereignty, which will constitute a wrongful act under international law. The acts may include, among others, unauthorized penetration into the network systems in the territory or within the jurisdiction of another State, causing disruption or damage of relevant infrastructure or undermining a State’s exclusive sovereign rights in cyberspace.”^[67]

Costa Rica (2023)

“18. Sovereignty is a fundamental principle of international law, underpinning the entire international legal order and firmly grounding the position of States therein. Sovereignty has been traditionally understood in a territorial and physical sense. It means, first and foremost, a State’s right to exercise legislative, adjudicative, and enforcement jurisdiction in its territory, as well as the power to regulate the conduct of certain persons and events abroad. Sovereign rights also have corollary duties, in particular, the obligation of a State to respect other States’ sovereign rights and protect them within its territory.

19. Sovereignty also applies to cyberspace, including its physical and non-physical components. After all, in the digital age, a State’s sovereign powers over its territory and other objects or subjects are increasingly exercised through and dependent on the use of ICTs. In Costa Rica’s view, sovereignty is also a self-standing right accompanied by a binding international legal obligation that can be breached by both cyber and non-cyber activities.

20. Such breaches may occur when cyber operations cause physical damage or loss of functionality of cyber infrastructure located in the victim State, regardless of ownership. Examples range from personal computers to programmable logic controllers or industrial computers that control energy, water, and sanitation facilities. For Costa Rica, a loss of functionality of these devices may occur in two ways. First, when the cyber operation attributable to another State entails the need to repair or replace physical components of the targeted cyber infrastructure or compromises physical equipment reliant on such infrastructure. Second, loss of functionality may occur if the operating system or database upon which the targeted cyber infrastructure relies stops functioning as intended, as may be the case, for instance, as a result of ransomware.

21. Breaches of sovereignty may also occur when a State engages in cyber operations that constitute a usurpation of inherently governmental functions, irrespective of any physical or non-physical effects on hardware or software located in the territory of the victim State. Examples of cyber operations amounting to this type of violation are those interfering with a State’s democratic processes, such as elections, responses to a national security or health emergency, such as the COVID-19 pandemic, and its choice of foreign policy.

22. It is important to note that it is often difficult to technically distinguish between a mere data-gathering operation from an operation penetrating a governmental system in order to interfere with a State’s sovereign functions. Real-world examples show that, once a piece of malware successfully enters a system or network, it remains a latent threat to its integrity. This may damage software or hardware and thus interfere with the conduct of State affairs. Furthermore, surveillance operations may be carried out in ways that lead to breaches of State sovereignty or other rules of international law. As such, Costa Rica believes that, in some circumstances, cyber espionage may amount to a breach of State sovereignty”.^[68]

Czech Republic (2020)

“[…]the Czech Republic recalls that the principles of sovereignty and sovereign equality of States are cornerstones of the UN Charter and thus concurs with the conclusion contained in the report of the UN GGE that in their use of ICT´s States are obliged to observe principles of international law, including the principle of sovereignty. The Czech Republic concurs with those considering the principle of sovereignty as an independent right and the respect to sovereignty as an independent obligation.

The Czech Republic firmly believes that under this principle States may freely exercise without interference in any form by another State both aspects of sovereignty in cyberspace, be it an internal one, with the exclusive jurisdiction over the ICTs located on its territory, or the external one, including the determination of its foreign policy, subject only to obligations under international law. The Czech Republic considers the following cyber operations in a State’s territory as violation of its sovereignty, if attributable to another State:

A. a cyber operation causing death or injury to persons or significant physical damage;

B.a cyber operation causing damage to or disruption of cyber or other infrastructure with a significant impact on national security, economy, public health or environment;

C.a cyber operation interfering with any data or services which are essential for the exercise of inherently governmental functions, and thereby significantly disrupting the exercise of those functions; for example, distributing ransomware which encrypts the computers used by a government and thus significantly delaying the payment of retirement pensions;

D. cyber operation against a State or entities or persons located therein, including international organisations, conducted by a physically present organ of another State;”^[69]

Denmark (2023)

“Sovereignty denotes each State’s authority to exercise within its territory the functions of a State, to the exclusion of any other State. Denmark is of the view that sovereignty is not only a principle but a primary rule of international law a breach of which amounts to an internationally wrongful act and if attributable to a State it may give rise to State responsibility.

Denmark shares the view that sovereignty applies to States’ cyber activities as has been widely endorsed by other States who have voiced their national positions on international law in cyberspace.

Sovereignty has both an internal and external dimension. Internal sovereignty signifies the independent right of a State to exercise the functions of a State in regard to a given territory to the exclusion of any other State. It pertains to a State’s jurisdiction over all persons, entities, and objects within its territory and some manifestations of the State outside its territory.

It follows that all States may exercise sovereignty over any cyber infrastructure located on their territory and all activities associated with that infrastructure – irrespective of whether such infrastructure or activity is of a public or private character. In the exercise of governmental authority, the State may promulgate and enforce domestic laws or protect cyber infrastructure and cyber activity located or taking place in its territory unless prohibited from doing so by its international legal obligations such as the limitations set out in international human rights conventions and international law on State and diplomatic immunity. A State’s internal sovereignty also encompasses an obligation for the State not to allow its territory to be used for acts contrary to the rights of other States (as further elaborated under section 6 on due diligence).

External sovereignty pertains to the international equal rights and duties of a State in its relations to other States. It derives from the principle of sovereign equality of States as recognized in article 2(1) of the UN Charter and requires all States to respect the territorial integrity and political independence of other States. Other principles and rules of international law such as the prohibition of the use of force, the prohibition on intervention, and the right of self-defence are based on this principle.

As sovereignty is a primary rule under international law States are obliged to respect the sovereignty of other States and must not conduct activities that violate another State’s sovereignty. Whether or not a given act in cyberspace is done in violation of another State’s sovereignty requires a case-by-case assessment of all relevant factors, in particular the nature of and the effects caused by the cyber operation. Denmark supports the view that the lawfulness of a cyber operation should be assessed based on two different bases: the degree of infringement upon the target State’s territorial integrity, and whether there has been an interference with or usurpation of inherently governmental functions. Unlike the prohibition on intervention, a breach of sovereignty is not contingent on a coercion element.

With respect to infringements on a State’s territory Denmark generally shares the view that cyber operations which result in physical damage or injury constitute a violation of a State’s sovereignty and may also violate the principle of non-intervention, or the prohibition of the use of force, cf. section 3 and 4. In addition to physical damage or injury loss of functionality may also, depending on its nature, scale, and effects, constitute such a violation. Cyber operations that alter or delete data without necessarily resulting in physical damage or loss of functionality may also, based on a case-by-case assessment of the nature, scale, and effects of the operation in question, constitute a violation. Cyber activities causing negligible physical effects or loss of functionality would generally not be considered a violation of sovereignty.

Furthermore, interference with or usurpation of a State’s inherently governmental functions may constitute a violation of a State’s sovereignty or prohibited intervention. This assessment is not contingent on whether physical damage, injury, or loss of functionality have occurred, but rather if a cyber operation has interfered with data or services necessary for the exercise of inherently governmental functions. This applies irrespective of whether such inherently government functions are performed by the State itself (either by central, regional or local government) or have been delegated to non-governmental entities.”^[70]

Estonia (2019)

“Sovereignty entails not only rights, but also obligations.”^[71]

Estonia (2021)

Sovereignty as a fundamental principle of international law applies in cyberspace.

“The 2013 and 2015 GGE consensus reports underscore that sovereignty and the international norms and principles that flow from it apply to state conduct of ICT-related activities. In addition, the 2013 GGE emphasised the importance of international law, the Charter of the UN and the principle of sovereignty as the basis for the use of ICTs by states.

States have territorial sovereignty over the ICT infrastructure and persons engaged in cyber activities on their territory. However, states’ right to exercise sovereignty on their territory is not unlimited; states must respect international law, including human rights obligations. States also bear the responsibility to comply with legal obligations flowing from sovereignty – for example, the responsibility not to breach the sovereignty of other states and to take reasonable efforts to ensure that their territory is not used to adversely affect the rights of other states. The principle of sovereignty is also closely linked with the principle of non-intervention and the principles of the prohibition of the threat or use of force.

The violation of sovereignty through cyber means can breach international law, and therefore may give the victim state the right to take measures, including countermeasures. Views on what constitutes a breach of sovereignty in cyberspace differ. Malicious cyber operations can be complex, cross several jurisdictions and may not always produce physical effects on targeted infrastructure.”^[72]

Finland (2020)

“It is undisputed that the principle of State sovereignty applies in cyberspace. While cyberspace as a whole cannot be subject to appropriation by any State, each State has jurisdiction over the cyber infrastructure and the persons engaged in cyber activities within its territory.”

“Finland sees sovereignty as a primary rule of international law, a breach of which amounts to an internationally wrongful act and triggers State responsibility. This rule is fully applicable in cyberspace. Whether an unauthorized cyber intrusion violates the target State’s sovereignty depends on its nature and consequences and is subject to a case-by-case assessment.”^[73]

France (2019)

“Cyberattacks may constitute a violation of sovereignty. The international norms and principles that flow from State sovereignty apply to the use of ICT by States and to their territorial jurisdiction over ICT infrastructure. France exercises its sovereignty over the information systems located on its territory”.^[74]

“Any cyberattack against French digital systems or any effects produced on French territory by digital means by a State organ, a person or an entity exercising elements of governmental authority or by a person or persons acting on the instructions of or under the direction or control of a State constitutes a breach of sovereignty.”^[75]

“The principle of sovereignty applies to cyberspace. France exercises its sovereignty over the information systems located on its territory. The gravity of a breach of sovereignty will be assessed on a case-by-case basis in accordance with French cyberdefence governance arrangements in order to determine possible responses in compliance with international law”.^[76]

Germany (2021)

“The legal principle of State sovereignty applies to States’ activities with regard to cyberspace. State sovereignty implies, inter alia, that a State retains a right of regulation, enforcement and adjudication (jurisdiction) with regard to both persons engaging in cyber activities and cyber infrastructure on its territory. It is limited only by relevant rules of international law, including international humanitarian law and international human rights law. Germany recognizes that due to the high degree of cross-border interconnectedness of cyber infrastructures, a State’s exercise of its jurisdiction may have unavoidable and immediate repercussions for the cyber infrastructure of other States. While this does not limit a State’s right to exercise its jurisdiction, due regard has to be given to potential adverse effects on third States.

By virtue of sovereignty, a State’s political independence is protected and it retains the right to freely choose its political, social, economic and cultural system. Inter alia, a State may generally decide freely which role information and communication technologies should play in its governmental, administrative and adjudicative proceedings. Foreign interference in the conduct of elections of a State may under certain circumstances constitute a breach of sovereignty or, if pursued by means of coercion, of the prohibition of wrongful intervention. Moreover, by virtue of its sovereignty, a State may decide freely over its foreign policy also in the field of information and communication technologies.

Furthermore, a State’s territorial sovereignty is protected. Due to the rootedness of all cyber activities in the actions of human beings using physical infrastructure, cyberspace is not a deterritorialized forum. In this regard, Germany underlines that there are no independent ‘cyber borders’ incongruent with a State’s physical borders which would limit or disregard the territorial scope of its sovereignty. Within its borders, a State has the exclusive right – within the framework of international law – to fully exercise its authority, which includes the protection of cyber activities, persons engaging therein as well as cyber infrastructures in the territory of a State against cyber and non-cyber-related interferences attributable to foreign States.”^[77]

“Germany agrees with the view that cyber operations attributable to States which violate the sovereignty of another State are contrary to international law. In this regard, State sovereignty constitutes a legal norm in its own right and may apply directly as a general norm also in cases in which more specific rules applicable to State behaviour, such as the prohibition of intervention or the use of force, are not applicable. Violations of State sovereignty may inter alia involve its territorial dimension; in this regard, the following categories of cases may be relevant (without excluding the possibility of other cases):

Germany essentially concurs with the view proffered, inter alia, in the Tallinn Manual 2.0 that cyber operations attributable to a State which lead to physical effects and harm in the territory of another State constitute a violation of that State’s territorial sovereignty. This encompasses physical damage to cyber infrastructure components per se and physical effects of such damage on persons or on other infrastructure, i.e. cyber or analogue infrastructure components connected to the damaged cyber component or infrastructure located in the vicinity of the damaged cyber infrastructure (provided a sufficient causal link can be established).

Germany generally also concurs with the view expressed and discussed in the Tallinn Manual 2.0 that certain effects in form of functional impairments with regard to cyber infrastructures located in a State’s territory may constitute a violation of a State’s territorial sovereignty. In Germany’s view, this may also apply to certain substantial non-physical (i.e. software-related) functional impairments. In such situations, an evaluation of all relevant circumstances of the individual case will be necessary. If functional impairments result in substantive secondary or indirect physical effects in the territory of the target State (and a sufficient causal link to the cyber operation can be established), a violation of territorial sovereignty will appear highly probable.

In any case, negligible physical effects and functional impairments below a certain impact threshold cannot – taken by themselves – be deemed to constitute a violation of territorial sovereignty.

Generally, the fact that a piece of critical infrastructure (i.e. infrastructure which plays an indispensable role in ensuring the functioning of the State and its society) or a company of special public interest in the territory of a State has been affected may indicate that a State’s territorial sovereignty has been violated. However, this cannot in and of itself constitute a violation, inter alia because uniform international definitions of the terms do not yet exist. Also, cyber operations in which infrastructures and/or companies which do not qualify as ‘critical’ or ‘of particular public interest’ are affected may likewise violate the territorial sovereignty of a State.”^[78]

Iran (2020)

“Article II: Sovereignty Policies of Armed forces of the Islamic Republic of Iran

1. The Islamic Republic of Iran has developed its sovereignty fields consistent with necessary capabilities for protection of its strategic military, economic, social, cultural, and political authority. In doing so, the development of expertise and advanced cyber tools for active and deterrent cyber-defense is, among others, one of the significant priorities for the protection of the strategic authority of the state.

2. Rules of modern international law imply the existence of limited territory in geographical borders of states exercising sovereignty or at least jurisdiction within those borders. According to the armed forces of the Islamic Republic of Iran, the territorial sovereignty and jurisdiction of the states are also extended to all elements of the cyberspace.

3. Any intentional use of cyber-force with tangible or non-tangible implications which is or can be a threat to the national security or may, due to political, economic, social, and cultural destabilization, result in destabilization of national security constitutes a violation of the sovereignty of the state.

4. Any utilization of cyberspace if and when involves unlawful intrusion to the (public or private) cyber structures which is under the control of another state, maybe constituted as the violation of the sovereignty of the targeted state.

5. The sovereignty of states is not an extra-legal matter. It shall be interpreted under the other fundamental legal principles such as non-intervention, good faith, self-determination, and other basic principles. It must be kept in mind that the sovereignty of states is subject to the principle of equality and the sovereignty of any state is not above the sovereignty of the other states. Therefore, any limiting and freezing measure, including sanctions, constitutes the violation of the sovereignty of independent states because of not respecting the sovereignty of target states.”^[79]

Ireland (2023)

“4. State sovereignty and international norms and principles that flow from sovereignty apply to the conduct by states of ICT-related activities and to their jurisdiction over ICT infrastructure within their territory.[1]. The principle of state sovereignty encompasses the concepts of territorial integrity and territorial authority, the independence of state powers, and the equality of states in the international order. A state enjoys a right to exercise jurisdiction in terms of regulation, adjudication and enforcement in relation to cyber infrastructure as well as persons engaging in cyber activities on its territory. A state may also be entitled, in limited circumstances, to exercise extraterritorial jurisdiction in accordance with international law.

5. The International Court of Justice (ICJ) in the Nicaragua case noted that “the principle of respect for state sovereignty […] is closely linked with the principles of prohibition of the use of force and non-intervention”.[2] In line with the stated position of many other states, Ireland considers that respect for sovereignty is an obligation in its own right. A violation of state sovereignty by way of cyber activities is capable of amounting to an internationally wrongful act and triggering state responsibility, even if such a violation falls short of the threshold of non-intervention or the use of force.

6. A violation of a state’s sovereignty may arise where a cyber-operation attributable to another state causes physical damage to ICT or other infrastructure (whether or not in state ownership or control), functional impairment to such infrastructure, interference with data, and/or secondary effects. The nature and consequences of a cyber-operation are relevant to determining whether a violation has occurred in any given case.

7. Sovereignty may not be relied on to justify a state’s non-compliance with applicable obligations under international law. Ireland notes with regret that sovereignty has at times been relied on by some states as justification for cyber measures and/or restrictions within their jurisdiction – such as cyber surveillance or censorship – which compromise human rights, in particular the right to freedom of expression, freedom of thought, conscience and religion, and the right to privacy.”^[80]

Israel (2020)

“To begin with, there are diverging views regarding whether sovereignty is merely a principle, from which legal rules are derived, or a binding rule of international law in itself, the violation of which could be considered an internationally wrongful act. This issue has many facets, and while I will not offer any definitive position for the time being, I would like to stress a number of important points.

A second, and related, point is that States undoubtedly have sovereign interests in protecting cyber infrastructure and data located in their territory. However, States may also have legitimate sovereign interests with respect to data outside their territory. For example, as governments store more and more of their data by using cloud services provided by third parties, whose servers are located abroad, how do we describe the interest that they have in relation to that data? Would the interest in protecting the data not be a sovereign interest in this case as well? Or, alternatively, when a State conducts a criminal investigation and needs to access data located abroad from its own territory, under what circumstances does it need to request the consent of the territorial State? Of course, there are no easy answers to these questions, and some of them are currently being discussed, such as in the context of the protocol to the Budapest Cybercrime Convention currently being negotiated to address this very topic.

These questions reflect an inherent tension between States’ legitimate interest and the concept of territorial sovereignty, as we understand it in the physical world. In practice, States occasionally do conduct cyber activities that transit through, and target, networks and computers located in other States, for example for national defense, cybersecurity, or law enforcement purposes. Under existing international law, it is not clear whether these types of actions are violations of the rule of territorial sovereignty, or perhaps that our understanding of territorial sovereignty in cyberspace is substantively different from its meaning in the physical world.”^[81]

Italy (2021)

“Italy attaches fundamental importance to the application of the principle of sovereignty to cyberspace, including its ancillary rules, such as the right to internal self-determination. Italy considers that both the internal and external aspects of sovereignty apply in cyberspace.

The principle of sovereignty is a primary rule of international law, the violation of which amounts to an internationally wrongful act. Italy considers that the principle in question prohibits a State from conducting cyber operations, which produce harmful effects on the territory of another State, irrespective of the physical location of the perpetrator. Italy finds that, according to the same principle, a State may not conduct cyber operations from the territory of another State without its express authorization. This is without prejudice to situations of distress where the state of necessity entails the applicability of a different discipline.

Each State’s exclusive jurisdiction over the physical, social and logical layers of cyberspace located on its territory may be exercised within the limits imposed by international law, including international obligations deriving from diplomatic privileges and immunities and those arising from human rights obligations. Responses to violations of sovereignty should be assessed on a case-by-case basis taking into account the nature and consequences of each violation.”^[82]

Japan (2021)

“A State must not violate the sovereignty of another State by cyber operations. Moreover, a State must not intervene in matters within domestic jurisdiction of another State by cyber operations.”^[83]

“On the other hand, regarding a violation of sovereignty that does not necessarily constitute an intervention, in the Lotus case, the Permanent Court of International Justice held that a State may not exercise its power in the territory of another State, while, in the Island of Palmas case, the Arbitral Tribunal stated as follows: “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.” Taking these and other judgments into account, the Government of Japan considers that there exist certain forms of violation of sovereignty which may not necessarily constitute unlawful intervention prohibited under the principle of non-intervention.

With respect to violation of sovereignty, the International Court of Justice (ICJ), in the Nicaragua case (1986), held that the United States had acted in breach of its obligation under customary international law not to intervene in the affairs of another State, and, in addition, that the United States, by directing or authorizing overflights of Nicaraguan territory, had acted in breach of its obligation under customary international law not to violate the sovereignty of another State. In addition, in the Costa Rica v. Nicaragua case (2015), the ICJ cited the absence of evidence that Costa Rica exercised authority on Nicaragua ’s territory as the reason for dismissing Nicaragua’s claim concerning the violation of its territorial integrity and sovereignty. Considering these cases, it can be presumed that, in some cases, a violation of sovereignty constitutes a violation of international law even when it does not fall within the scope of unlawful intervention.”^[84]

“An act of causing physical damage or loss of functionality by means of cyber operations against critical infrastructure, including medical institutions, may constitute an unlawful intervention, depending on the circumstances, and at any rate, it may constitute a violation of sovereignty. As various opinions were expressed on the relationship between violation of sovereignty and unlawful intervention at the sixth GGE and the OEWG, it is desirable that a common understanding be forged through State practices and future discussions.”^[85]

Kenya (2021)

“The UN Charter forms a strong foundation for the interpretation of existing international laws underlined by inter alia the principles of State sovereignty, sovereign equality, and settlement of international disputes by peaceful means. It is the Charter’s emphasis on these principles that is fully aligned with Kenya’s peaceful stance in international affairs.”^[86]

Netherlands (2019)

“The principle of sovereignty, i.e. that states are equal and independent and hold the highest authority within their own borders, is one of the fundamental principles of international law. More specific rules of international law, such as the prohibition of the use of force, the principle of non-intervention and the right of self-defence stem from this principle. These rules will be discussed in more detail below.

According to some countries and legal scholars, the sovereignty principle does not constitute an independently binding rule of international law that is separate from the other rules derived from it. The Netherlands does not share this view. It believes that respect for the sovereignty of other countries is an obligation in its own right, the violation of which may in turn constitute an internationally wrongful act. This view is supported, for example, by the case law of the International Court of Justice, which ruled in Nicaragua v. United States of America that the United States had acted in breach of its obligation under customary international law not to violate the sovereignty of another state. Below the government will discuss the significance of this obligation in more detail.

Firstly, sovereignty implies that states have exclusive jurisdiction over all persons, property and events within their territory, within the limits of their obligations under international law, such as those relating to diplomatic privileges and immunity, and those arising from human rights conventions. This is the internal aspect of sovereignty. Secondly, sovereignty implies that states may freely and independently determine their own foreign policy, enter into international obligations and relations, and carry out activities beyond their own borders, provided they respect the rules of international law. This is the external aspect of sovereignty.

Both aspects apply equally in cyberspace. States have exclusive authority over the physical, human and immaterial (logical or software-related) aspects of cyberspace within their territory. Within their territory they may, for example, set rules concerning the technical specifications of mobile networks, cybersecurity and resilience against cyberattacks, take measures to combat cybercrime, and enforce the law with a view to protecting the confidentiality of personal data. In addition, they may independently pursue foreign ‘cyber’ policy and enter into treaty obligations in the area of cybersecurity. The Netherlands’ decision to accede to the Convention on Cybercrime of the Council of Europe is an example of the exercise of Dutch sovereignty.

States have an obligation to respect the sovereignty of other states and to refrain from activities that constitute a violation of other countries’ sovereignty. Equally, countries may not conduct cyber operations that violate the sovereignty of another country. It should be noted in this regard that the precise boundaries of what is and is not permissible have yet to fully crystallise. This is due to the firmly territorial and physical connotations of the traditional concept of sovereignty. The principle has traditionally been aimed at protecting a state’s authority over property and persons within its own national borders. In cyberspace, the concepts of territoriality and physical tangibility are often less clear. It is possible, for example, for a single cyber operation to be made up of numerous components or activities initiated from or deployed via different countries in a way that cannot always be traced. In addition, there are various ways of masking the geographic origin of activities performed in cyberspace. What is more, data stored using a cloud-based system is often moved from one location to another, and those locations are not always traceable. So it is by no means always possible to establish whether a cyber operation involves a cross-border component and thus violates a country’s sovereignty. Even if the origin or route of a cyber operation can be established, these kinds of operations do not always have a direct physical or tangible impact.

From the perspective of law enforcement (which is part of a state’s internal sovereignty), the manner in which the principle of sovereignty should be applied has not fully crystallised at international level either. Shared investigative practices do seem to be developing in Europe and around the world, however. Data relevant to criminal investigations is increasingly stored beyond national borders, for example in the cloud, in mainly private data centres. And when it comes to criminal offences committed on, or by means of, the internet, the location of data – including malicious software or code – and physical infrastructure is often largely irrelevant. It is easy to hide one’s identity and location on the internet, moreover, and more and more communications are now encrypted. Even in purely domestic criminal cases – including cybercrime – where the suspect and victim are both in the Netherlands, cyber investigations often encounter data stored beyond our borders, particularly when investigators require access to data held by online service providers or hosting services, or need to search networks or (covertly) gain remote entry to an automated system. The act of exercising investigative powers in a cross-border context is traditionally deemed a violation of a country’s sovereignty unless the country in question has explicitly granted permission (by means of a treaty or other instrument). Opinion is divided as to what qualifies as exercising investigative powers in a cross-border context and when it is permissible without a legal basis founded in a treaty. In cyberspace too, countries’ practices differ in their practical approaches to the principle of sovereignty in relation to criminal investigations. The Netherlands actively participates in international consultations on the scope for making investigations more effective, paying specific attention to ensuring the right safeguards are in place.

In general the government endorses Rule 4, proposed by the drafters of the Tallinn Manual 2.0, on establishing the boundaries of sovereignty in cyberspace.5 Under this rule, a violation of sovereignty is deemed to occur if there is 1) infringement upon the target State’s territorial integrity; and 2) there has been an interference with or usurpation of inherently governmental functions of another state. The precise interpretation of these factors is a matter of debate.”^[87]

New Zealand (2020)

“The principle of sovereignty prohibits the interference by one state in the inherently governmental functions of another and prohibits the exercise of state power or authority on the territory of another state. In the physical realm, the principle has legal effect through the prohibition on the use of force, through the rule of non-intervention and also through a standalone rule of territorial sovereignty. Subject to limited exceptions (e.g. authorisation by the United Nations Security Council, self-defence, consent), that standalone rule prohibits a state from sending its troops or police forces into or through, or its aircraft over, foreign territory, and prohibits a state from carrying out official investigations or otherwise exercising jurisdiction on foreign territory.

In the cyber realm, the principle of sovereignty is given effect through the prohibition on the use of force and the rule of non-intervention. New Zealand considers that the standalone rule of territorial sovereignty also applies in the cyber context but acknowledges that further state practice is required for the precise boundaries of its application to crystallise.

In New Zealand’s view, the application of the rule of territorial sovereignty in cyberspace must take into account some critical features that distinguish cyberspace from the physical realm. In particular: i) cyberspace contains a virtual element which has no clear territorial link; ii) cyber activity may involve cyber infrastructure operating simultaneously in multiple territories and diffuse jurisdictions; and iii) the lack of physical distance in cyberspace means malicious actors can apply instantaneous effects on targets without warning. These features present unique opportunities for malicious actors and significant defensive challenges for states. They also make it difficult for states to prevent malicious cyber activity being conducted from or routed through their territory.

Bearing those factors in mind, and having regard to developing state practice, New Zealand considers that territorial sovereignty prohibits states from using cyber means to cause significant harmful effects manifesting on the territory of another state. However, New Zealand does not consider that territorial sovereignty prohibits every unauthorised intrusion into a foreign ICT system or prohibits all cyber activity which has effects on the territory of another state. There is a range of circumstances – in addition to pure espionage activity – in which an unauthorised cyber intrusion, including one causing effects on the territory of another state, would not be internationally wrongful. For example, New Zealand considers that the rule of territorial sovereignty as applied in the cyber context does not prohibit states from taking necessary measures, with minimally destructive effects, to defend against the harmful activity of malicious cyber actors.

A detailed factual enquiry is required in each case to determine whether state cyber activity that has effects manifesting on the territory of another state, but which does not amount to a use of force or a prohibited intervention, nonetheless involves a violation of the standalone rule of territorial sovereignty. That factual enquiry should take into account the scale and significance of the effects, the objective of the activity, and the nature of the target.”^[88]

Norway (2021)

Key message
Sovereignty is not just a principle, but also a primary rule of international law. A State must not conduct cyber operations that violate another State’s sovereignty. Whether a cyber operation violates the target State’s sovereignty depends on the nature of the operation, the scale of the intrusion and its consequences, and must be assessed on a case-by-case basis.

“The principle of sovereignty is one of the fundamental principles of international law and applies in cyberspace. It refers to the supreme authority of every State within its territory to the exclusion of other States, and also in its relations with other States.

The internal dimension of a State’s sovereignty includes the exclusive right to exercise jurisdiction within its territory, including over the information systems located on its territory, and to exercise independent State powers. The external dimension includes the right of the State to decide its foreign policy and to enter into international agreements. Both dimensions of sovereignty apply in cyberspace, subject only to obligations under international law.

Norway is of the view that sovereignty constitutes both an international law principle from which various rules derive, such as the prohibition of intervention and the prohibition of the use of force, and a primary rule in its own right capable of being violated. Thus, cyber operations that do not amount to a prohibited intervention or a prohibited use of force may nevertheless amount to a violation of a State’s sovereignty under international law.

The International Court of Justice (ICJ) has consistently held that States have an obligation to respect the territorial integrity and political independence of other States as a matter of international law. In a cyber context this means that a State must not conduct cyber operations that violate another State’s sovereignty.

A cyber operation that manifests itself on another State’s territory may, depending on its nature, the scale of the intrusion and its consequences, constitute a violation of sovereignty.

Causing physical damage by cyber means on another State’s territory may easily qualify as a violation of territorial sovereignty. For example, a cyber operation against an industrial control system at a petrochemical plant that led to a malfunction and a subsequent fire would constitute a violation of the State’s territorial sovereignty. In addition to physical damage, causing cyber infrastructure to lose functionality may also be taken into consideration and may amount to a violation. This includes the use of crypto viruses to encrypt data and thus render them unusable for a substantial period of time.

The principle of sovereignty encompasses cyber infrastructure located in a State’s territory irrespective of whether it is governmental or private.

Similarly, a cyber operation that interferes with or usurps the inherently governmental functions of another State may constitute a violation of sovereignty.

This is based on the premise that a State enjoys the exclusive right to exercise within its territory, ‘to the exclusion of any other State, the functions of a State’. Accordingly, what matters is not whether physical damage, injury, or loss of functionality has resulted, but whether the cyber operation has interfered with data or services that are necessary for the exercise of inherently governmental functions. Cases in point would include altering or deleting data or blocking digital communication between public bodies and citizens so as to interfere with the delivery of social services, the conduct of elections, the collection of taxes, or the performance of key national defence activities. Another example could be the manipulation of police communications so that patrol cars are unable to communicate with police dispatch/operation centres. In this context it is irrelevant whether the inherently governmental function is performed by central, regional or local governments and authorities, or by non-governmental bodies in the exercise of powers delegated by such governments or authorities. Conducting elections is a clear example of an inherently governmental function. In contrast to the case of a cyber operation in breach of the prohibition of intervention, there is no requirement for the interference to reach to the level of coercion.

The precise threshold of what constitute a cyber operation in violation of sovereignty is not settled in international law, and will depend on a case-by-case assessment.”^[89]

Pakistan (2023)

“6. Pakistan believes that the principles of non-use of force, sovereign equality of all nations, non-interventionism, and peaceful settlement of disputes, as enshrined in the UN Charter, continue to apply in cyberspace as in the physical world.”^[90]

Poland (2022)

2. The principle of sovereignty applies to cyberspace

“State sovereignty is a basic principle of international law. According to this principle, states are independent and equal in international relations, while their territorial integrity and political independence are inviolable. As a consequence, states exercise supreme power over their own territory.

The principle of sovereignty is closely linked to the principle of non-intervention in affairs falling under the domestic jurisdiction of a state. The norms concerning the jurisdiction of a state and the immunities of a state and its representatives are also derived from the principle of sovereignty.

A state exercises power over cyberspace users located within its territory, over IT infrastructure and over data. While respecting the norms of international law by which it is bound, it may exercise its sovereign prerogatives over such actors and facilities. It is also entitled to protect them. As a result, the Republic of Poland takes the position that the violation of a state‘s sovereignty may occur both in the event of an attack against state infrastructure and against private infrastructure. A mere fact that IT infrastructure is linked in a number of ways with an international network does not result in the state‘s losing any of its rights with respect to such infrastructure.

As it was indicated earlier, sovereignty has an external dimension as well. External sovereignty means that a state is independent in its external relations and is capable of freely engaging in any actions in cyberspace, also outside its own territory, subject to restrictions under international law. Another consequence of sovereignty is a state’s capacity to enter into treaties, including those on cyberspace.

The principle of sovereignty requires other states to refrain from any actions that would violate sovereignty, and in particular states are obliged not to knowingly make their territory available for the purposes of acts that would violate the rights of other states. Poland is of the opinion that in the event of a hostile operation conducted in cyberspace, causing serious adverse effects within the territory of a state, such actions should be considered a violation of the principle of sovereignty, irrespective of whether such effects are of kinetic nature or are limited to cyberspace. The violation of the principle of sovereignty may be exemplified by a conduct attributable to a third country that consists in interfering with the functioning of state organs, for instance by preventing the proper functioning of ICT networks, services or systems of public entities, or by a theft, erasure or public disclosure of data belonging to such entities.”^[91]

“Actions in cyberspace that violate the prohibition of the use of force and the principle of non-intervention in affairs falling under the domestic jurisdiction of a state would also violate the principle of sovereignty.”^[92]

Romania (2021)

“Romania considers that respect for the state sovereignty is an international obligation per se, the breach of which constitutes an internationally wrongful act; States have an obligation to respect the sovereignty of other States and refrain from activities that constitute a violation of their sovereignty; this holds true both in what concerns the internal as well as the external facet of the principle of sovereignty.

At the same time, we acknowledge that the difficulty in relation to this principle lies in the absence in cyberspace context of the territoriality and physical dimensions, which are the specific elements of the analysis when dealing with the sovereignty in the traditional sense.

In relation to these aspects, RO is of the view that cyber operations (conducted by a State organ or by a person or entity exercising elements of governmental authority or by a person acting under the instructions of or under the direction or control of a State) that interferes with or prevents in any way a State from exercising its (internal and/ or external) sovereign prerogatives (i.e. authority over its territory, over the property and persons situated therein) constitute a violation of the principle of State sovereignty and, thus, a breach of international law.

If there is not a State or State endorsed operation one can speak of a criminal act, which should be investigated and punished in accordance with the criminal law of the State concerned.”^[93]

Singapore (2021)

“Singapore affirms that the following key principles enshrined in the UN Charter apply in cyberspace as they do in the physical world, and are of fundamental importance to small States, such as Singapore:

• First, the principles of State sovereignty and sovereign equality of all States. Singapore’s position is that a cyber operation could, in certain circumstances, amount to a violation of sovereignty.^[94]

Sweden (2022)

“The principle of sovereign equality of States is also applicable to cyberspace. Within their territories, States have jurisdiction and the right to exercise authority within the framework of international law. At international level, States are independent and enjoy sovereign equality in relation to other States. State sovereignty provides a basic foundation for other principles and rules such as those governing the prohibition of intervention and the prohibition of the use of force. However, States also have an obligation to respect the sovereignty of other States, and a breach of this obligation would amount to a wrongful act and give rise to State responsibility.

A State’s jurisdiction and authority apply to persons and objects within its territorial borders, including cyber-related activities. A State has a right to protect persons and objects within its territory, or otherwise under its jurisdiction, against interference by cyber means. A State’s authority and jurisdiction include a responsibility not to allow knowingly its territory to be used for acts contrary to the rights of other States.

In general, Sweden is of the view that violations of sovereignty may arise from cyber operations that result in damage or loss of functionality. Altering and interfering with data without causing physical harm may also violate sovereignty. Such acts include those directed against cyber infrastructure belonging to private individuals or entities. Interference with a State’s inherently governmental functions may also constitute a violation of State sovereignty, including when undertaken with cyber means.

Whether an intrusion has in fact resulted in a violation of sovereignty needs to be assessed on a case-by-case basis taking into consideration the nature and character of the intrusion.”^[95]

Switzerland (2021)

“State sovereignty is also applicable to cyberspace. Owing to the special characteristics of cyberspace, which has no clear territorial boundaries, putting the principle of sovereignty into practice is a particular challenge. One major issue is who has jurisdiction over or access to digital data. In the cyber context, the key question is which states have legitimate control over digital data and are authorised to access that data – which may, depending on the circumstances, be stored on a different territory or may not be localised geographically. Conversely, in terms of interstate relations at cybersecurity level, the principle of sovereignty provides wide scope for protection against cyber operations.For example, state sovereignty protects information and communication technologies (ICT) infrastructure on a state’s territory against unauthorised intrusion or material damage. This includes the computer networks, systems and software supported by the ICT infrastructure, regardless of whether the infrastructure is private or public.

Switzerland recognises that defining what constitutes a violation of the principle of sovereignty in cyberspace is particularly challenging and has yet to be clarified conclusively. It supports considering the following two criteria in such assessments: first, does the incident violate the state’s territorial integrity and second, does it constitute interference with or usurpation of an inherently governmental function. A precise definition of these criteria is a question of interpretation and subject to debate. The current debate includes among other aspects i) incidents whereby the functionality of infrastructure or related equipment has been damaged or limited, ii) cases where data has been altered or deleted, interfering with the fulfilment of inherently governmental functions such as providing social services, conducting elections and referendums, or collecting taxes, and iii) situations in which a state has sought to influence, disrupt or delay democratic decision-making processes in another state through the coordinated use of legal and illegal methods in cyberspace e.g. propaganda, disinformation and covert actions by intelligence services. The assessment of an individual case depends on the nature of the cyber incident and its repercussions.”^[96]

United Kingdom (2018)

“[..]a further contested area amongst those engaged in the application of international law to cyber space is the regulation of activities that fall below the threshold of a prohibited intervention, but nonetheless may be perceived as affecting the territorial sovereignty of another state without that state’s prior consent. Some have sought to argue for the existence of a cyber specific rule of a “violation of territorial sovereignty” in relation to interference in the computer networks of another state without its consent. Sovereignty is of course fundamental to the international rules-based system. But I am not persuaded that we can currently extrapolate from that general principle a specific rule or additional prohibition for cyber activity beyond that of a prohibited intervention. The UK Government’s position is therefore that there is no such rule as a matter of current international law.^[97]

United Kingdom (2021)

“Sovereignty, as a general principle, is a fundamental concept in international law. The United Kingdom recalls that any prohibition on the activities of States whether in relation to cyberspace or other matters, must be clearly established either in customary international law or in a treaty binding upon the States concerned. The United Kingdom does not consider that the general concept of sovereignty by itself provides a sufficient or clear basis for extrapolating a specific rule or additional prohibition for cyber conduct going beyond that of non-intervention referred to above. At the same time, the United Kingdom notes that differing viewpoints on such issues should not prevent States from assessing whether particular situations amount to internationally wrongful acts and arriving at common conclusions on such matters.”^[98]

United Kingdom (2022)

“States have expressed different views on the precise significance of sovereignty in cyberspace. The UK reiterated its own position on this point as recently as June 2021. Namely, that any prohibition on the activities of States, whether in relation to cyberspace or other matters, must be clearly established in international law. The general concept of sovereignty by itself does not provide a sufficient or clear basis for extrapolating a specific rule of sovereignty or additional prohibition for cyber conduct going beyond that of non-intervention.”^[99]

United States (2012)

“States conducting activities in cyberspace must take into account the sovereignty of other states, including outside the context of armed conflict. The physical infrastructure that supports the Internet and cyber activities is generally located in sovereign territory and subject to the jurisdiction of the territorial state. Because of the interconnected, interoperable nature of cyberspace, operations targeting networked information infrastructures in one country may create effects in another country. Whenever a state contemplates conducting activities in cyberspace, the sovereignty of other states needs to be considered.”^[100]

United States (2016)

“[..] remote cyber operations involving computers or other networked devices located on another State’s territory do not constitute a per se violation of international law. In other words, there is no absolute prohibition on such operations as a matter of international law. This is perhaps most clear where such activities in another State’s territory have no effects or de minimis effects.

Most States, including the United States, engage in intelligence collection abroad. As President Obama said, the collection of intelligence overseas is “not unique to America.” As the President has also affirmed, the United States, like other nations, has gathered intelligence throughout its history to ensure that national security and foreign policy decisionmakers have access to timely, accurate, and insightful information. Indeed, the President issued a directive in 2014 to clarify the principles that would be followed by the United States in undertaking the collection of signals intelligence abroad.

Such widespread and perhaps nearly universal practice by States of intelligence collection abroad indicates that there is no per se prohibition on such activities under customary international law. I would caution, however, that because “intelligence collection” is not a defined term, the absence of a per se prohibition on these activities does not settle the question of whether a specific intelligence collection activity might nonetheless violate a provision of international law.

Although certain activities—including cyber operations — may violate another State’s domestic law, that is a separate question from whether such activities violate international law. The United States is deeply respectful of other States’ sovereign authority to prescribe laws governing activities in their territory. Disrespecting another State’s domestic laws can have serious legal and foreign policy consequences. As a legal matter, such an action could result in the criminal prosecution and punishment of a State’s agents in the United States or abroad, for example, for offenses such as espionage or for violations of foreign analogs to provisions such as the U.S. Computer Fraud and Abuse Act. From a foreign policy perspective, one can look to the consequences that flow from disclosures related to such programs. But such domestic law and foreign policy issues do not resolve the independent question of whether the activity violates international law.”^[101]

United States (2020)

“As a threshold matter, in analyzing proposed cyber operations, DoD lawyers take into account the principle of State sovereignty. States have sovereignty over the information and communications technology infrastructure within their territory. The implications of sovereignty for cyberspace are complex, and we continue to study this issue and how State practice evolves in this area, even if it does not appear that there exists a rule that all infringements on sovereignty in cyberspace necessarily involve violations of international law.”^[102]

United States (2021)

“As recognized in the 2013 and 2015 GGE reports, State sovereignty and the international principles that flow from sovereignty apply to States’ ICT-related activities and to their jurisdiction over ICT infrastructure within their territory.

The United States believes that State sovereignty, among other long-standing international legal principles, must be taken into account in the conduct of activities in cyberspace. Whenever a State contemplates conducting activities in cyberspace, the equal sovereignty of other States needs to be considered.

The implications of sovereignty for cyber activities are complex, but we can start by noting two important implications of sovereignty for ICT-related activities. First, we acknowledge the continuing relevance of territorial jurisdiction, even to cyber activities, and second, we acknowledge the exercise of jurisdiction by the territorial State is not unlimited; it must also be consistent with applicable international law, including international human rights obligations.”^[103]

“In certain circumstances, one State’s non-consensual cyber operation in another State’s territory, even if it falls below the threshold of a use of force or non-intervention, could also violate international law. However, a State’s remote cyber operations involving computers or other networked devices located on another State’s territory do not constitute a per se violation of international law. In other words, there is no absolute prohibition on such operations as a matter of international law. This is perhaps most clear where such activities in another State’s territory have no effects or de minimise effects. The very design of the Internet may lead to some encroachment on other sovereign jurisdictions.”^[104]

Appendixes

See also

Notes and references