In response to the recent anti-government protests, Cuba has been restricting access to social media sites in order to disrupt communications to, from, and within the country. Unfortunately, it is a tactic that has become a common tool of authoritarian governments for stifling dissent. The Cuban action raises the law and policy question of whether the United States could step in to provide Internet access to Cubans.
From an international law perspective, a government’s interference with Internet access and other forms of communication of its own citizenry is typically analyzed in the context of the international human right of freedom of expression, which includes the right to “seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice” (ICCPR, art. 19; UDHR; art. 19). Moreover, today it is well-accepted that the same “same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice” (UN Human Rights Council Res. 32/13, 2016).
The legal issue in cases of Internet shutdown, either entirely or in part, is therefore whether the restriction complies with the requirement that limitations on the freedom of expression are prescribed by law, pursue a legitimate aim such as national security of health, are necessary for the achievement of that aim, and are proportionate to any resulting interference with the enjoyment or exercise of the right (Tallinn Manual 2.0, Rule 37).
This is, of course, an essential question in the Cuban case. However, a unique aspect of the Cuban situation is the possibility that the United States might move to provide communications to the Cuban population. That option surfaced publicly on July 14 when Senator Marco Rubio (R-FL) sent just such a request to the White House:
The [Cuban] regime cruelly uses its grip on the flow of information to monitor and repress its own citizens. Now, as historic protests for freedom take place across Cuba, the regime leverages its stranglehold on the Internet to silence key voices of dissent, shut down the ability to coordinate protests, and restrict the capacity of the Cuban people to share with the world scenes of their brutal treatment at the hands of the regime.
In my letter to you on 12 July outlining steps to be taken to support the historic protests, I urged you to facilitate open and free Internet for the people of Cuba. Without it, the Cuban people, who yearn for basic political and economic freedoms, can more easily be monitored, suppressed, detained, and brutalized by the regime without accountability. Bringing free and open Internet will help the Cuban people communicate with one another without censorship and repression and show them that the world stands beside them in their quest for liberty.
Senator Rubio noted that U.S. firms have the technical capability to provide “fiber-less solutions” in remote regions on relatively short notice, citing the case of balloon-supplied emergency connectivity for Puerto Rico during Hurricane Maria in 2017. Governor Ron DeSantis of Florida made the same request of the White House.
The next day, the President weighed in during the joint press conference with Chancellor Angela Merkel. Asked about the situation in Cuba, but not about the suppression of communications, the President volunteered, “And one of the things that you did not ask but we’re considering is — they’ve cut off access to the Internet. We’re considering whether we have the technological ability to reinstate that access.”
But may the United States take such actions consistent with its obligations under international law? The two most likely international law rules such an operation would violate are the requirement to respect sovereignty and the prohibition on intervention in the internal affairs of other states. This post examines both possibilities.
It should be cautioned that the United States has not taken a firm position on whether a rule of sovereignty exists in international law. Although the United Kingdom has opined that it does not, every other state that has spoken directly to the issue has taken the opposite, and more defensible, view. Therefore, irrespective of the U.S. position (whatever it may be), other states, including key allies that accept the rule like France, Germany, and Japan, will evaluate any U.S. action to provide connectivity in Cuba against a legal requirement to respect other states’ sovereignty.
Sovereignty may be violated on two bases (Tallinn Manual 2.0, Rule 4). First, the causation of effects on another state’s territory without the latter’s consent can sometimes violate its sovereignty. This is certainly the case if damage or injury occurs or when cyberinfrastructure is permanently disabled. Unfortunately, no consensus exists on where the threshold lies below that level. Most states that have embraced a sovereignty rule have not taken a stand on where that threshold lies. France has gone furthest, stating that “Any unauthorised penetration by a State of French systems or any production of effects on French territory via a digital vector may constitute, at the least, a breach of sovereignty.”
In this case, the operation would presumably be conducted from outside Cuban territory because unconsented to presence of, for instance, balloons, aircraft, or vessels that provide connectivity while in another state’s territory (national airspace, territorial waters, land) would constitute a violation based solely on their location, and do so irrespective of the nature of effects the operation causes (Tallinn Manual 2.0, at 18-19). Therefore, whether the effects of a U.S. operation originating beyond Cuba’s borders would qualify the operation as a sovereignty violation is the issue at hand.
Effects may be direct or indirect. The immediate impact of the prospective U.S. operation would be the restoration of Internet connectivity in Cuba. Even by the French threshold for a sovereignty breach, styling such an effect as a violation would be questionable. To begin with, most consideration of qualifying effects focuses on the degree of physical impact suffered by objects located in another state’s territory; the greater the extent of negative impact on them, the more likely the operation is to be characterized as a sovereignty violation. For instance, physical damage is usually considered to qualify, while short-term temporary denial of services or causing the targeted cyber infrastructure to operate in a manner other than that for which it was designed remain open questions.
In the case of the operation under consideration, there would be a territorial effect in the sense that cyberinfrastructure that otherwise could not connect to the Internet would be capable of doing so. But the affected cyber infrastructure would suffer no damage at all; indeed, those systems would work precisely as intended. To the extent an operation resulting in temporary loss of functionality is of uncertain legal status vis-à-vis the rule of sovereignty, one causing the restoration of functionality would seem even less likely to be a be unlawful, at least on the basis of the territorial aspect of sovereignty. This is especially so here because the U.S. operation would enable Cubans to exercise the international human right of expression, including receiving and imparting information. It must be cautioned, however, that this does not rule out other scenarios in which restoring Internet functionality without the territorial consent could amount to a sovereignty violation based on a different purpose (for example, if done to facilitate operations against defensive systems).
Sometimes indirect effects can qualify a cyber operation as a sovereignty violation, as in a disinformation campaign that causes individuals to self-treat a medical condition such as COVID-19 improperly, thereby putting public health at grave risk, or one that incites violence in another state; the foreseeable and intended effects would be at the requisite threshold. Yet, in the Cuban situation, the mere provision of access to social media and other forms of communication would not be designed to cause any particular indirect effect that would reach the breach threshold, nor would it foreseeably do so.
The second manner in which a state can violate sovereignty is by interfering with, or usurping, another state’s inherently governmental functions. These are functions that governments alone perform (or authorize private entities to perform on their behalf), such as conducting elections or engaging in law enforcement (Tallinn Manual 2.0, Rule 4). The prohibition on usurping inherently governmental functions does not apply in this situation, for Internet connectivity is often provided by private entities. It is not an inherently governmental function.
However, an operation to provide connectivity could interfere with certain inherently governmental functions. For example, it would do so when a state blocks access to the Internet or specific sites for valid law enforcement purposes, like impeding access to sites that sell narcotics or disrupting the online organization violence. When such state actions comply with the requirements for limiting human rights mentioned earlier, they enjoy the protection that sovereignty provides to the exercise of inherently governmental functions. It may be a more complicated question when a state blocks access for such legitimate purposes but in a manner that’s not fully consistent with human rights – once again though, that hypothetical scenario is not relevant to the facts at hand in Cuba.
What’s happening in Cuba is clear. The government is trying to disrupt expressions of public dissent, not enforce domestic law in a way that is close to consistent with Cuba’s human rights obligation. Its actions might have an indirect or coincidental effect of disrupting certain criminality, but they must be motivated by a legitimate aim to qualify as the lawful exercise of an inherently governmental function. Suppressing political dissent is not only an illegitimate aim in human rights law, it is unlawful when carried out in a manner that interferes with protected expression. In any event, the sweeping nature of the Cuban restrictions does not satisfy the human rights law condition of proportionality.
As explained, an operation to extend connectivity to Cuba is unlikely to violate Cuba’s sovereignty even by the most liberal interpretation of where the threshold for violation lies. The other internationally wrongful act of relevance to such an operation is intervention into the internal affairs of another state (Tallinn Manual 2.0, Rules 66).
In its Paramilitary Activities judgment (para. 205), the International Court of Justice explained that intervention consists of (1) interference with another state’s domaine reserve in a manner that is (2) coercive. Coerciveness in this context would typically involve compelling another state to adopt or execute policy against its will or refrain from doing so despite its wishes.
Providing Internet connectivity to a population contrary to the government’s wishes, especially when that government has taken action to deny the population that connectivity, is plainly coercive. The target state has adopted a policy and is executing it, and another state is engaged in activity that effectively frustrates that policy. Therefore, the legal issue is whether Cuba’s policy decision to deny connectivity lies within its domaine reserve, not the coerciveness of the prospective U.S. actions.
It does not. As the ICJ noted in Paramilitary Activities, a “prohibited intervention must … be one bearing on matters in which each State is permitted, by the principle of State sovereignty. to decide freely” (para. 205). In other words, the domaine réservé consists of those areas of activity left by international law to regulation by states themselves, such as political, social, or economic policy. International human rights law, as noted, governs activities by and in states that involve freedom of expression. This being so, the proposed U.S. action cannot qualify as unlawful intervention based on interfering with Cuba’s actions alone because it will not intrude into a Cuban domaine réservé.
To so qualify, the consequence of providing connectivity would have to involve an activity that human rights or other international law do not reach. An example would be providing connectivity to an insurgent group that enables it to communicate information of military value, which does not enjoy human rights law protection. Therefore, in the same way that “financial support, training, supply of weapons, intelligence and logistic support” to such a group can qualify as intervention (Paramilitary Activities, para. 242), so too would delivering connectivity that enhances an insurgent group’s military capabilities. But there is no suggestion that the United States will be doing anything along these lines here.
There are situations in which the provision of Internet connectivity would be unlawful under international law. This is most likely to be the case during a non-international armed conflict in which a state is assisting an insurgent group in this manner to counteract the territorial state’s shutdown of the group’s access. But merely making access possible for individuals in another state is unlikely to violate any rule of international law, especially when the latter’s interference with Internet access and other forms of communication are violations under international human rights law, as in Cuba. In sum, and irrespective of the separate question of whether the prospective U.S. action is a sound policy decision, it is a legal option for U.S. policymakers.