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April 23, 2018
They also acknowledged the existence of a view that the right to privacy has not yet crystallised into a customary norm.
The International Group of Experts agreed that in addition to the confidentiality of communications, the right to privacy generally protects the personal data of individuals.421 It acknowledged that the precise definition of ‘personal data’ is a matter that has generated a degree of controversy with respect to regional human rights regimes and national
As such, the Experts concluded that, notwithstanding State practice, espionage remains subject to States’ applicable human rights law obligation to respect the right to privacy.
A State’s cyber activities that prevent access to valid health information or services on the Internet implicate this right. Online surveillance activities may also implicate the right if, for example, an individual refrains from seeking or communicating sensitive health-related information out of fear that his or her condition may be revealed to others.
technology is an enabler of rights, not a right as such.
The International Group of Experts further agreed that no customary international human ‘right to be forgotten’ currently exists.
International human rights law requires States to respect, as well as to protect (i.e., ensure respect for), human rights.430 The International Group of Experts agreed that these obligations apply in
The International Group of Experts could achieve no consensus as to whether States have an obligation to ensure access to cyberspace and cyber infrastructure, if such access is the only way to exercise a human right.442 Consider a situation in which a State has an electoral system requiring individuals to vote online. The Experts were unable to agree if the State is obliged to provide the necessary access to enable individuals who cannot otherwise do so to exercise their right to vote.
This makes no sense to me...
In this regard, international human rights law allows States to limit the enjoyment or exercise of certain human rights in order to protect other rights and to maintain national security and public order,451 including with respect to activities in cyberspace.
In these Experts’ view, a customary international law requirement of proportionality with regard to international human rights limitations may constitute lex ferenda, but not, in the current state of affairs, lex lata.
It must be cautioned that measures that are necessary (and proportionate, by the majority criterion) to achieve one legitimate aim may not be so for the purposes of
Restrictions on cyber activities that are otherwise protected by international human rights law must be
Consider a case in which unrest and violence has been occurring in an area populated by a particular ethnic group. Social media is being used to orchestrate the violent events. In such a situation, the fact that the measures the State takes to limit access to the social media affect the ethnic group more than other individuals in the State does not constitute unlawful discrimination.
For example, the ICCPR permits derogations from some of its provisions ‘in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed’.473 Similarly, the ECHR permits derogation from particular provisions ‘in time of war or other public emergency threatening the life of the nation’.474 The ACHR permits derogation in broader circumstances than permitted by the ICCPR and ECHR, that is, ‘[i]n time of war, public danger, or other emergency that threatens the independence or security of a State Party’ with respect to certain of the rights set
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ICCPR prohibits derogations that discriminate solely on the basis of race, colour, sex, language, religion, or social origin.477 The ICCPR, ACHR, and ECHR also bar derogations that are inconsistent with the States Parties’ other international legal
major international organisations such as the United Nations and its specialised agencies enjoy immunities and privileges by treaty that are akin to those to which diplomatic missions are entitled.
Many of the immunities set out in this Chapter apply to a more limited extent to family members of a diplomatic mission’s or consular post’s personnel, as well as to the administrative and technical staff of a mission or post and their
Take the example of a sending State that is using the cyber infrastructure of a diplomatic mission to transmit espionage malware into computers in the receiving State. Doing so is an abuse of the diplomatic function495 and therefore an internationally wrongful act
Nevertheless, the receiving State is not allowed to engage in cyber operations directed at cyber infrastructure in the premises as a countermeasure.
In other words, the fact that a receiving State’s cyber operation does not violate this Rule does not necessarily render it lawful under diplomatic and consular law.
The Experts concurred that a receiving State in extremis may take actions against the premises, or cyber infrastructure therein, of a diplomatic mission or consular post in self-defence
Given the contexts in which the United States and Estonia have invoked the terms ‘virtual embassy’ and ‘data embassy’, the Experts agreed that these entities, solely by virtue of the use of the term ‘embassy’, do not qualify as premises of a diplomatic mission. The Experts further pointed to the fact that mutual consent is required to establish diplomatic relations between States, and, in particular, to establish permanent diplomatic
For example, it is now commonplace for diplomatic missions to create official accounts on social media platforms, such as Facebook. The International Group of Experts concluded that the inviolability of a diplomatic mission’s premises does not apply to such a virtual presence. On the contrary, the premises of a diplomatic mission have been traditionally understood to imply physical presence.
International law affords broad inviolability to a diplomatic mission’s or consular post’s archives, documents, and official correspondence, including in electronic
However, the Experts were divided over the question of whether all States, and not just the receiving State, are obliged to respect the inviolability of the sending State’s diplomatic and consular material when that material is at rest as opposed to in transit.
Thus, States may not escape the obligation to respect the inviolability of diplomatic or consular material by employing or otherwise resorting to an intermediary who initially acquires the protected material.
As an example, the material may be stolen or otherwise acquired improperly and posted on the Internet, as in the case of the Wikileaks incident. The majority took the position that this Rule no longer applies since its object and purpose of ensuring the confidentiality of the material has been defeated. In other words, if the material is openly accessible, it is not confidential as a matter of
for instance, should the authorities of the receiving State learn, from the sending State or any other source, that the sending State’s cyber communications are being impeded, it must take appropriate steps to terminate the impediment.
The premises of a diplomatic mission or consular post may not be used to engage in cyber activities that are incompatible with diplomatic or consular functions.
Using a diplomatic mission’s cyber infrastructure to engage in commercial activity, such as e-commerce, would likewise fail to qualify as a diplomatic function.
Diplomatic agents are entitled to immunity from the criminal jurisdiction of the receiving State for any activity that qualifies as cyber crime under the receiving State’s domestic laws while present in the country.545 This diplomatic immunity is absolute and unqualified. They also enjoy immunity from arrest and are exempt from the obligation to give evidence as a
To a great extent, the rules of the customary international law of the sea are reflected in the Law of the Sea Convention.
Exclusive flag State jurisdiction is a cardinal doctrine of the law of the sea. It provides that the flag State has full jurisdiction (Rule 8) over vessels flying its
One example is that States engaged in an armed conflict at sea may exercise ‘mere passage’ (Rule 49) through neutral State territorial seas, as distinct from the peacetime regime of ‘innocent passage
Antarctic Treaty regime, which prohibits military operations in that region for Parties
Similarly, a cyber attack (Rule 92) upon a merchant vessel reasonably believed to be breaching a blockade is lawful if the vessel, ‘after prior warning, clearly resist[s] capture
It provides warships or other duly authorised vessels the legal authority to board foreign non-sovereign immune vessels that they encounter on the high seas when there is a ‘reasonable ground for suspecting’ that any of the five situations set forth in this Rule is present – the vessel is engaged in piracy, slave trading, or unauthorised broadcasting; the vessel appears to be without nationality; or the vessel is of the nationality of the visiting vessel, even when flying a foreign flag or refusing to show its flag. The same customary law right is codified in Article 58 for an EEZ.
The International Group of Experts noted that social media could contribute to a finding of reasonable grounds for suspecting a vessel of conduct giving rise to a right of visit.
What does this mean?
A warship or other duly authorised vessel is entitled to visit and put an end to unauthorized broadcasting so long as it enjoys jurisdiction for that specific purpose.567 Such vessels include those of ‘any State where the transmissions can be received’ or ‘any State where authorised radio communication is suffering
The Experts noted, however, that the prohibition is limited to broadcasting designed for public consumption.
Posting of online material from the high seas poses no such risks. The Experts also observed that whether online material is posted from a vessel on the high seas or in the EEZ or from a city a continent away, the end result is identical. Therefore, they would limit the prohibition to those forms of broadcasting expressly set forth in the definition
The International Group of Experts was split with respect to whether the right of visit can be carried out virtually. Some Experts were of the view that such a ‘virtual visit’ is a reasonable exercise of the traditional right of visit. As an example, eligible vessels may use cyber means to verify the nationality of the vessel concerned by monitoring its communications or inspect its cyber infrastructure remotely when suspicion remains that the vessel is engaged in the activities set forth in this Rule.
In order for a vessel to claim the right of innocent passage through a coastal State’s territorial sea, any cyber operations conducted by the vessel must comply with the conditions imposed on that right.
Submarines must transit on the surface and show their flag in order to claim the right of innocent
Aircraft do not enjoy the right of innocent passage
For instance, a State may suspend passage temporarily in order to conduct military exercises involving cyber operations if the presence of other vessels may present a cyber security risk.
For example, the following cyber activities based on certain aspects of the Article would render passage non-innocent:
the launching, landing, or taking on board of aircraft or other military devices, including those that engage in, or are capable of conducting, cyber operations;
Drones..
The majority concluded that cyber activities undertaken while in innocent passage must not prejudice the security or good order of the coastal State, including its relations with other States and its duties with respect to those States.
