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April 23, 2018
If a sovereign immune vessel is conducting cyber activities that are inconsistent with the right of innocent passage, the coastal State’s remedy is to ‘require’ the vessel immediately to depart.594 The International Group of Experts agreed that doing so can ultimately include forceful measures.
During an international armed conflict, a neutral coastal State may not discriminate between the belligerents with respect to cyber operations in that State’s territorial sea.
The 1907 Hague Convention XIII prohibits a belligerent from erecting ‘any apparatus for the purpose of communicating with the belligerent forces on land or sea’ in neutral territory or
For instance, a DDoS operation initiated from aboard a vessel against cyber infrastructure located in the coastal State that violates the coastal State’s domestic law would qualify.
Although innocent passage cannot be impeded or interrupted in order to exercise civil jurisdiction over a person on-board a foreign vessel in the territorial sea, this Rule does not prevent the coastal State or any other legal person from filing civil suit against the vessel, a member of the crew, or a passenger in a subsequent proceeding.
As distinct from innocent passage, transit passage may not be suspended by the coastal
Additionally, vessels and aircraft may transit in their ‘normal mode’, that is, submarines may transit submerged and aircraft may overfly the
A State enjoys sovereignty (Rule 1) over its archipelagic waters, the airspace above the waters, and the seabed and subsoil lying below
Therefore, in their territorial sea, States have the right to regulate the laying, maintenance, repair, and replacement of submarine communication cables and to adopt laws and regulations in respect of their protection
States may lay submarine communication cables in the EEZ of another State, but must pay due regard to the rights and duties of the coastal State.632 Coastal States may not regulate or impede the laying of submarine communication cables in their EEZ or on their continental shelf and shall exercise due regard with respect to the rights and duties of other States to lay submarine communication
A coastal State ‘may not impede the laying or maintenance of … cables’ on the continental shelf unless the actions taken qualify as ‘reasonable measures for the exploration of the continental shelf [or] the exploitation of its natural
Land-locked States have the right of access to and from the sea for the purpose of exercising high seas freedoms.641 The laying of submarine communication cables is one of the freedoms and, thus, land-locked States are entitled to lay submarine communication cables, in particular with a view to connecting their territories to the global cyber
the majority of the International Group of Experts agreed that States have the right to replace all existing cables (at least outside the limits of the territorial sea) that are outdated or have become inoperative.
The Experts noted, however, that a tapping operation in the territorial sea or archipelagic waters does not violate the sovereignty of other States, such as those that laid and operate the cable.
Although it is generally considered that there is an altitude above the earth’s surface where the application of air law ends and that of space law ( Chapter 10) begins, the International Group of Experts acknowledged that no international agreement exists as to the precise delineation between air and space
The Chicago Convention has near universal application and the International Group of Experts considered most of its provisions, including those cited below, to reflect customary international law.
If cyber operations in airspace also involve outer space, they are governed by both air law and space law
A State may regulate the operation of aircraft, including those conducting cyber operations, in its national airspace.
As distinct from maritime transit through the territorial sea (Rule 48), there is no right of innocent passage for foreign aircraft through the airspace above a State’s territorial
Pursuant to Article 5 of the Chicago Convention, States Parties have agreed to permit, on a non-discriminatory basis, all foreign civil aircraft not engaged in scheduled international air service the right to transit their airspace and make non-traffic stops without the necessity of obtaining prior permission.
During flight within a State’s national airspace, civil aircraft are subject to the full jurisdiction (Rule 9) of that State.
When an aircraft is in international airspace, generally only the State of registry may exercise enforcement jurisdiction
The Experts agreed that if the State aircraft is conducting cyber operations rising to the level of an armed attack (Rule 71) against the subjacent State, or if that State has reasonable grounds to conclude that the aircraft is about to do so imminently (Rule 73), it is entitled to resort to necessary and proportionate
However, the majority of the International Group of Experts took the position that, although the presence of the military aircraft conducting cyber operations would be a clear violation of at least sovereignty (Rule 4), force may only be used by the subjacent State if the aircraft is in fact engaged in an armed attack, or if the subjacent State has reasonable grounds to conclude that an armed attack is imminent.
Accordingly, cyber operations in international airspace do not require the consent of any other State and States may freely conduct cyber operations in international airspace absent a prohibition set forth in international law, such as engaging in airborne cyber operations that violate another State’s sovereignty (Rule 4), amount to unlawful intervention (Rule 66), or breach a State’s neutrality during an international armed conflict
Since they are not governed by the Chicago Convention regime, State aircraft, including military aircraft, are not subject to FIRs.
However, they are required to fly with due regard to the safety of other aircraft and the rights of other States and therefore often cooperate with air traffic control authorities.
A State may not conduct cyber operations that jeopardise the safety of international civil aviation.
The International Group of Experts agreed that no State exercises sovereignty over outer space, the moon, or celestial bodies, nor may such sovereignty be
In the event more than one State is involved in the launching of a space object, the launching States must agree on which of them is to register the object.
provides that the earth’s moon and other celestial bodies shall be used exclusively for peaceful purposes and forbids the establishment of military bases, installations and fortifications, the testing of any type of weapon, and the conduct of military manoeuvres on celestial bodies.
The Experts were also of the view that it is lawful to exercise the right of self-defence in outer space or to employ space-based assets to defend against armed attacks occurring on the earth
Special consideration would also have to be given to the amount of space debris that could be created by the operation, not only with respect to the law of self-defence, but, where applicable, other legal regimes, such as the law of armed conflict ( Part IV ) and the law of neutrality ( Chapter 20
The International Group of Experts agreed, therefore, that when cyber activities are conducted in or through outer space, States must consider the impact of their cyber activities on astronauts and, relatedly, the equipment on which astronauts depend for their survival.
which provides that States are responsible for assuring that their ‘national activities in outer space’, including those of non-governmental entities, ‘are carried out in conformity with the provisions’ of the Outer Space Treaty. It further provides, ‘[t]he activities of non-governmental entities in outer space … shall require authorisation and continuing supervision by the appropriate State Party to the Treaty.’ If an international organisation registers
cause a satellite it has launched to crash on the earth, the launching State is liable for any physical damage irrespective of any lack of intent or negligence.
In the second situation, the negligent or intentional act is that of a third State. For example, assume State A is the sole launching State and is operating its satellite in accordance with all applicable international law. State B’s cyber operation causes (either negligently or intentionally) the satellite to deorbit, thereby resulting in damage on the territory of State C. State C would be entitled to bring a claim against State A under the Liability Convention or the Outer Space Treaty (assuming State A is a Party to one or both) even if State C knows that State B’s actions caused the
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By the Article, the absolute liability regime does not apply to damage caused to one space object by another in outer space. It specifically provides that if damage is caused to a space object or to persons or property on board such a space object, liability only attaches ‘if the damage is due to [the State’s] fault or the fault of persons for whom it is
Accordingly, this Rule sets forth three distinct obligations for States: to ensure the establishment of infrastructure that facilitates rapid and uninterrupted international telecommunications; to safeguard that infrastructure; and to maintain it.
The International Group of Experts agreed that the duties set forth in this Rule are obligations of conduct, not of result.
However, the majority was of the view that a State supplying telecommunication services in another State without the latter’s consent is impermissible on the ground that each State enjoys the sovereign prerogative to regulate its telecommunication sector, including who provides services and how they do
It was divided as to the question of the lawfulness of another State’s activities to remotely restore telecommunication services in a State that has suspended service, for instance, by offering Internet access from a high altitude aircraft.
A State’s use of radio stations may not harmfully interfere with other States’ protected use of radio frequencies for wireless cyber communications or services.
However, the Experts also agreed that extraterritorial jamming is lawful to prevent violation of jus cogens norms, as in the case of the radio broadcasts that incited the Rwandan genocide in 1994.
If the jamming is likely to cause incidental loss of civilian lives or harm to civilian property, the loss or damage qualifies as collateral damage that must be considered in the proportionality analysis (Rule 113) and the precautions in attack requirements
A State retains its entire freedom under international telecommunication law with regard to military radio installations.
The International Group of Experts agreed that this means, for example, that a State is not obliged to record a frequency assignment for a military communications satellite in geostationary earth orbit with the ITU,735 as would otherwise be required by the ITU Radio Regulations.
These Experts looked, for instance, to Article 2(4) of the UN Charter, which imposes no prohibition on States with respect to any use of force against non-State actors (Rule 68). In their view, it would be incongruent for Articles 2(3) and 33(1) to impose requirements regarding the peaceful settlement of disputes with non-State actors when Article 2(4) fails to prohibit the use of force by a State against them.
bring about by peaceful means … adjustment or settlement of international disputes or situations which might lead to a breach of the peace’. Accordingly, they suggested that a broad interpretation is merited.
The State accused of having used the proxies denies its involvement in any of the cyber operations in question, whereas in reality the proxy actors operated under that State’s effective control (Rule 17). Lying about its activities is not acting in good faith.
