U.N. Seeking State Positions on Sovereignty in Cyberspace
● The U.N. Open-Ended Working Group on developments in the field of information and communications technologies in the context of international security (OEWG), established by the General Assembly through resolution 73/27, is seeking State positions on how international law applies to cyberspace.
● The OEWG hosted its first substantive session for State engagement in September 2019 and its second in February 2020. The February session yielded an ongoing debate regarding whether sovereignty is a principle of international law, in which case an interference in cyberspace would not necessary invoke the law of State responsibility, or whether it is a rule of international law, in which case States would be obligated to respect sovereignty in cyberspace and an interference would constitute an internationally wrongful act. The sovereignty-as-a-rule position thus would enable a target State of a cyberattack to seek reparation under the law of State responsibility and/or respond with proportionate countermeasures.
● Notably, Austria and the Czech Republic took the sovereignty-as-a-rule position with their proffered statements, arguing that sovereignty is an independent right and as such, a State-sponsored cyberattack may violate a targeted State’s sovereignty under certain conditions. Conversely, the United States and the United Kingdom have taken the sovereignty-as-a-principle position. They argue that sovereignty does not create independent legal obligations apart from protections from other established rules of international law. Further, the United States has maintained that this is due to a lack of sufficient State practice and opinio juris regarding the recognition of sovereignty as a rule of international law.
● This ongoing debate illustrates the need for small and developing States to voice their positions to the OEWG. This process will help determine State practice and opinio juris in this field, and influence the OEWG’s final report. At the present, five States openly support the sovereignty-as-a-rule approach while a minority, including the U.K. and USA, which both possess advanced cyber capacities, openly support the sovereignty-as-a-principal position.
● It is critical for small and developing States to share their positions in order to influence the development of the international law which governs this field. This is particularly important given that cybercrime has been on the rise during the COVID-19 pandemic, according to U.N. disarmament chief Izumi Nakamitsu. On May 22, Nakamitsu briefed the Security Council that this includes a 600% increase in malicious emails during the pandemic, as well as “worrying reports of attacks against healthcare organizations and medical research facilities worldwide.” This developing framework of international law may offer States a means to protect themselves from State-sponsored cybercrime.
IILA encourages States to voice their positions during the third (and final) OEWG substantive session presently scheduled for July 6-10, 2020. In advance of this session, the Chair of the OEWG, Ambassador Jürg Lauber of Switzerland, will be hosting rounds of informal virtual meetings on June 15, 17 and 19 in order to give States the opportunity to engage in preliminary debates and identify further areas of convergence. IILA can help small and developing States prepare for these discussions and weigh the important legal implications of each position.