A positive step in States’ collective attributions. But States’ inability to condemn some/all this behavior as internationally unlawful is equally important - if States can’t say it violates IL, doesn’t this imply IL permits it? washingtonpost.com/national-secur…
What violations could there be? Depending on target and effects, some of these ops may implicate the duty of non-intervention chathamhouse.org/2019/12/applic…
And for States who accept sovereignty breaches in cyberspace, there’s an easier case to make justsecurity.org/77402/three-in…
Note - it shouldn’t matter if these were govt actors working off hours for private gain or private entities under the control of a State - both scenarios trigger State responsibility under IL (See ASR ch. 2) legal.un.org/ilc/texts/inst…
& even if State responsibility isn’t triggered directly, notifying a State it’s playing host to actors violating rights of others triggers ‘due diligence’ - IL requires that State to proactively take steps to stop such activity repository.essex.ac.uk/30352/
But if States can only say ‘this is bad - stop it’ without addressing intl law, I worry we are getting to a point where the Lotus Principle applies - What intl law doesn’t prohibit, it permits. worldcourts.com/pcij/eng/decis…
States could forestall that implication if they include at least some reference to intl law in their collective statements.
To be clear - I’m not calling for blanket denunciations - not all State cyber ops violate intl law. But the inability to flag at least some ops as legally off limits (or even to say they raise important intl law questions) is problematic
If US/EU & NATO member states can’t agree to do so, it cuts against their attempts to go beyond saying IL applies in cyber (it does) to say it does so effectively; if IL is silent here, is it really an effective tool to regulate state behavior in cyberspace?
It’s not like States have never invoked intl law in their accusations (although the 1 example I know of was the attempted hacking of #OPCW, which involved treaty breaches beyond the customary rules I flagged above) gov.uk/government/new…
So I’ll be looking carefully at the announced collective attributions today to see if they mention intl law at all (press reports so far suggest they won’t) cnn.com/2021/07/19/pol…
For my part, I think international law does have important positive and negative obligations relating to ransomware when States are involved as actors or territorial hosts.
In the coming days, the #OxfordProcess will be turning its attention to this issue. As we’ve done on health care, elections, & info ops, we hope to show States that IL lawyers can agree on how intl law applies here justsecurity.org/76742/oxford-s…
But whether it’s a universal acknowledgment or just one among ‘like-minded’ states, it’s long past time for States themselves to agree that IL not only applies ‘in principle’ but to actually (and openly) apply it in their accusations papers.ssrn.com/sol3/papers.cf…
As predicted, a great statement in many respects. But the silence on intl law violations speaks volumes (esp on attempts to get the Ebola virus - there’s low hanging fruit there). whitehouse.gov/briefing-room/…
NATO statement does mention international law (yeah!). But it largely does so to signal IL constraints on NATO itself; nothing about whether China breached any IL here nor what IL might obligate China to do going forward. nato.int/cps/en/natohq/…
Japan’s statement shows the breadth of this collective attribution. But it also doesn’t move the needle on international law. mofa.go.jp/press/danwa/pr…
And here’s the EU. Again strong condemnation of behavior that is ‘irresponsible’ and ‘harmful’ but nothing about it being unlawful (nor any legal duties China might have). The reference to GGE norms are important but they remain ‘voluntary’ consilium.europa.eu/en/press/press…
Australia follows a similar path - showing unity in condemning China and invoking GGE norms of responsible State behavior but silent on whether China’s activities were consistent with its international legal obligations. foreignminister.gov.au/minister/maris…
Here’s the UK statement - further reiterates a like-minded opposition by accusing States to Chinese behavior w/o casting it in legal terms (responsibility reference here doesn’t = int’l legal responsibility) gov.uk/government/new…
Oh Canada! Viewing Chinese behavior as irresponsible but silent on intl law canada.ca/en/global-affa…
Such a remarkable political collaboration revealed in these statements - those involved deserve accolades for getting it all together. Still, having done so w/o using IL, hope they also calibrated the implications for their IL positions in staying silent
The polysemous meaning of silence in int'l law is worth more thought (@azaria_danae has a project ongoing) & I take you & @Schmitt_ILaw's pt that silence need not = OJ re permission. But it's also been yrs of silence-hard to say IL doing much work if it can't even get a mention!
I missed New Zealand's statement earlier - it reinforces my thesis that all this condemnation comes with an apparent attempt to avoid addressing its int'l legal implications beehive.govt.nz/release/new-ze…
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