The international community recently took an important step toward establishing global norms of behavior in cyberspace with the publication of the UN’s outcome report from its 2014/2015 Group of Governmental Experts (GGE) on Information Security. The report reflects the consensus of 20 governmental experts who discussed measures to promote stability and conflict prevention in cyberspace. Mandated by the General Assembly, the GGE met for discussions over the course of one year to arrive at the recommendations contained in the report.
Many view the document as the latest contribution advancing the international debate on much needed norms of behavior in cyberspace. Some have even called it a diplomatic victory for the United States after the Group adopted a number of the US’s proposals. Yet, a crucial portion of the report dealing with the way international law applies to the use of information and communication technologies (ICTs) remains largely un-scrutinized. This is despite the fact that the group was convened to study “the issues of the use of information and communications technologies in conflicts and how international law applies to the use of information and communications technologies by States.”
While these aspects have been the subject of academic debates for years, progress has been slow in international forums like the UN. States have been reluctant to express explicit or comprehensive views on these questions. It is thus worth taking a closer look at how much progress the Group was able to achieve. Perhaps less than surprising given the complexity of legal questions, the GGE’s treatment of international law is not groundbreaking as it leaves a number of existing controversies unresolved.
The 2013 Report Baseline
This year’s report followed the breakthrough work of an earlier Group in 2013 where governmental experts for the first time agreed on the applicability of international law to state actions in cyberspace. The 2013 report simply and unambiguously stated that “[i]nternational law, and in particular the Charter of the United Nations, is applicable.” At the same time, the 2013 report acknowledged that common understandings on how international law applies require further study and that “[g]iven the unique attributes of ICTs, additional norms could be developed over time.”
This rationale reflected a compromise between states favoring the negotiation of new legal norms (e.g., Russia) and those states that have emphasized the adequacy of existing legal frameworks (e.g., the US). As a result, the report acknowledged the application of existing laws while leaving the door open for the elaboration or promulgation of additional ones. This year’s GGE was to pick up on this 2013 baseline by examining more closely how international law applies to the actions of states in cyberspace. Strikingly, some countries, most notably Russia and China, appear to be backtracking from the 2013 commitments compounding the lack of common understandings in this area. Thus, it becomes readily apparent that the tasking of the 2015 Group was no easy one.
Overall, this year’s report reaffirms the bulk of the findings of the 2013 GGE without significantly furthering understandings of how international law applies to state conduct. The language is largely a restatement of the earlier report adding only a few additional points. There are a number of Charter obligations that find repeated reference in the report, including sovereign equality, the peaceful settlement of disputes, the prohibition on the use of force, non-intervention, and the respect for human rights and fundamental freedoms. These are seen as being “of central importance” to the application of international law. But no further guidance is given with regard to their implementation, and it remains unclear what added value their repeated mention is supposed to bring.
More importantly, the report’s “workaround language” continues to veil a number of controversial points that have remained unresolved. For one, the document does not explicitly mention the term “self-defense” although it arguably alludes to it. As was the case with the 2013 report, countries such as China have been reluctant to explicitly reference the right to self-defense and its application to cyberspace. They argued that this would be an implicit sanctioning or encouraging of offensive cyber activities.
This year’s report again does not mention the term “self-defense,” but notes that the Charter applies in its entirety, including the “inherent right of States to take measures consistent with international law and recognised in the Charter.” For Western diplomats, the phrase “inherent right” unambiguously references Article 51 of the UN Charter, the only provision containing this wording. In the end, the report’s wording allows for differing interpretations without resolving the underlying controversy.
A second major issue concerns the application of international humanitarian law. This body of law was not explicitly mentioned in the 2013 report, leaving open whether the Group of Governmental Experts considered it to be applicable to state actions in cyberspace. Again, a number of countries including China have been opposed to the inclusion of international humanitarian law. This year’s report makes little progress in this regard as it merely “notes” the legal principles of humanity, necessity, proportionality, and distinction. Although these principles comprise core tenets of international humanitarian law, this wording is far from a clear acknowledgement that international humanitarian law applies to state actions in cyberspace.
Given the complexity of legal questions when it comes to the use of information and communication technologies by States, the limited progress made by the 2015 GGE is perhaps less than surprising. When judged against the Group’s mandate, the current report does not provide significant insights. Neither the use of information and communication technologies during conflict has been meaningfully addressed, nor the controversies over the right to self-defense and international humanitarian law.
As the US representative, Michele Markoff, remarked, “[m]ore robust statements on how international law applies were contested by a few key States, and we did not achieve all of the progress we would have liked in this area.” Thus, in the absence of progress made outside of the UN process, the resolution of these issues is left to future GGEs that will have to grapple with the same contentious points.