by Dr Ruwantissa Abeyratne
There are boundaries of acceptable state behaviour in cyberspace, just as there are everywhere else. ~ Jeremy Wright QC MP, Attorney General of The United Kingdom
( August 2, 2018, Montreal, Sri Lanka Guardian) CTV News recently reported an alarming statement by former CIA Director John Brennan who had said that Canada should be cautious about cyber interference in its upcoming general election in 2019. Director Brennan stated: “I think any democracy these days needs to be concerned about foreign interference in their elections” … Canada, like other countries in Europe and throughout the world, need to be mindful that there are individuals in countries out there that are going to try to do them harm, including in their electoral systems”. Brennan also stated that the next 9/11 could be a cyber attack. However, it is worthy of note that Brennan does not directly accuse Russia of cyber interference.
It will be recalled that President Obama in 2016 ordered a review of all cyber attacks that could have been carried out during the 2016 election cycle in the United States. Subsequently, The Washington Post is reported to have said: “It is the assessment of the intelligence community that Russia’s goal here was to favour one candidate over the other, to help Trump get elected”. Again, this is a statement of Russia’s goal rather than its active interference using a cyber platform.
The jury is still out on whether there has been direct cyber interference by a sovereign State or an instrumentality of a State, be it concerning the United States or any other country. However, one has to be mindful of the future possibility of such an eventuality and the need for States to band together to establish a cohesive and coherent international legal regime that gives clear direction on finding a miscreant legally reprehensible under a punitive set of rules.
Cyber technology is advancing in leaps and bounds and cannot be allowed to operate under a lawless environment. There are already existing principles of international law that effectively preclude interference by one State in the affairs of another State. For instance, The Charter of the United Nations in Article 2(4) stipulates that all Members are required to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. Additionally, Article 2 (7) provides that even the United Nations has no jurisdiction to intervene in matters which are essentially within the domestic jurisdiction of any State. The right of a State to retaliate against an armed attack (here the term “armed attack” can be imputed to cyber attacks) is contained in Article 51 of the Charter which states that nothing in the Charter would impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.
The responsibility of a State toward another State is clearly embodied in principles of State responsibility as enunciated by the International Law Commission – a Commission of jurists established by the United Nations General Assembly in 1947, to initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codification. In its 1949 Report to the General Assembly, the International Law Commission recommended a draft provision which required:
“every State has the duty to conduct its relations with other States in accordance with international law and with the principle that the sovereignty of each State is subject to the supremacy of international law”. No State has the right to interfere with the sovereignty of another State. Professor Huber in the 1928 Island of Palmas case was of the view: “Sovereignty in the relations between States signifies independence. Independence regarding a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State…territorial sovereignty…involves the exclusive right to display the activities of a State”. The International Court of Justice (ICJ) recognized in the 1949 Corfu Channel Case: “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States”.
The fundamental issue in the context of State responsibility is to consider whether a State should be considered responsible for its own failure or non-feasance to prevent a private act of cybercrime or interference or whether the conduct of the State itself can be impugned by identifying a nexus between the perpetrator’s conduct and the State. One view is that an agency paradigm, which may in some circumstances impute to a state reprehensibility on the basis that a principal-agent relationship between the State and the perpetrator existed, can obfuscate the issue and preclude one from conducting a meaningful legal study of the State’s conduct.
At the core of the principal-agent dilemma is the theory of complicity, which attributes liability to a State that was complicit in a private act. Hugo Grotius (1583-1645), founder of the modern natural law theory, first formulated this theory based on State responsibility that was not absolute. Grotius’ theory was that although a State did not have absolute responsibility for a private offence, it could be considered complicit through the notion of patienta or receptus. While the concept of patienta refers to a State’s inability to prevent a wrongdoing, receptus pertains to the refusal to punish the offender. The 18th Century philosopher Emerich de Vattel was of similar view as Grotius, holding that responsibility could only be attributed to the State if a sovereign refuses to repair the evil done by its subjects or punish an offender or deliver him to justice whether by subjecting him to local justice or by extraditing him.
Another theory is the condonation theory which is based on the fact that it is not illogical or arbitrary to suggest that a State must be held liable for its failure to take appropriate steps to punish persons who cause injury or harm to others for the reason that such States can be considered guilty of condoning the criminal acts and therefore become responsible for them.
The United Nations in 1970 stated that every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State. Furthermore, the UN stated that every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts.
It would be apt to end this essay with a quote from the Attorney General of The United Kingdom: “The international law prohibition on intervention in the internal affairs of other states is of particular importance in modern times when technology has an increasing role to play in every facet of our lives, including political campaigns and the conduct of elections. … the purpose of this principle is to ensure that all States remain free from external, coercive intervention in the matters of government which are at the heart of a state’s sovereignty, such as the freedom to choose its own political, social, economic and cultural system”.
The author is former Senior Legal Officer of The International Civil Aviation Organization and is currently a Senior Associate at Aviation Strategies International.
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