The Hague Process: Courses on the International Law Applicable to Cyber Operations
INTERVENTION IN
CYBERSPACE
Principle of Non-Intervention
• Foundation in customary international law and numerous treaties (although not expressly in UN Charter)
• Stems from sovereignty & principle of sovereign equality
• Example: Arts. 19-20 OAS Charter
• No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or
attempted threat against the personality of the State or against its political, economic, and cultural elements.
• No State may use or encourage the use of coercive measures of an economic or political character in order to force the sovereign will of another State and obtain from it advantages of any kind
Principle of Non-Intervention
• [T]he principle forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a
political, economic, social and cultural system, and the formulation of foreign policy.
ICJ Nicaragua, para. 205
Principle of Non-Intervention
• Intervention is wrongful when it uses methods of
coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited
intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State.
ICJ Nicaragua, para. 205
UN GGE 2015
• “[T]he Group identified as of central importance the
commitments of States to the following principles of the Charter and other international law: ... non-intervention in the internal affairs of other States” (pt. 26)
• “In their use of ICTs, States must observe, among other principles of international law, ... non-intervention in the internal affairs of other States” (pt. 28(b))
Elements of Intervention
• May not intervene in another State’s affairs (domaine réservé)
• Internal or external
• Act must be “coercive”
• Includes intervention by cyber means
• Example: Manipulation of election returns
• Example: Use of cyber ops to force other State to agree to particular terms in treaty
Intervention Generally
• Prohibition and protection applies only to States
• Example: Company or hacker group conducts hostile cyber ops to compel State to adopt policy – not intervention
• Unless “attributable” to a State
• Separate prohibition for some int’l orgs.
• E.g., Art 2(7) UN Charter
• Relationship with use of force prohibition; concept of coercion is wider
• Non-coercive act may still be violation of sovereignty
Domaine Réservé
• Matters left to States by international law
• Law vests States with discretion or freedom to choose option
• Not mean matters unregulated by int’l law at all
• Precise contours difficult to identify
• Includes “choice of a political, economic, social, and cultural system, and the formulation of foreign
policy” (Nicaragua)
• Language policy, elections, structure of government
• Example: Provision of malware to insurgent group
Domaine Réservé
• Includes foreign affairs
• Must be sole prerogative of State
• Example: Recognition of States and governments, treaty terms
• Example: Alter diplomatic communications during negotiations
• Not include matters committed to international law
• Example: Human rights law (limits States control over cyber activities)
• Example: Matters agreed to in treaty (e.g., sharing cyber infrastructure)
• Area of domaine réservé shrinking
Distinguish from Inherently Governmental Functions
• Distinguish from “inherently governmental function” (sovereignty)
• Function of State v. control of State over area of activity
• Example: On-line education not inherently governmental, but generally left to States
Coercion
• Nicaragua: “The element of coercion … defines, and indeed forms the very essence of prohibited
intervention ….”
• Not defined with clarity
• But certainly more than (cyber) uses of force; also includes threats to use force
• The coercive effect must be intended
• Act designed to deprive another State of freedom of choice
• Cause State to act in way otherwise would not act
• Cause State to refrain from acting in way would otherwise act
Coercion
• Examples
• Altering election returns; hacking election machines
• Blocking stock trading to compel State to withdraw recognition of another government
• Disrupting government activities on-line to force an internal decision with regard to trade policy
• Every cyber use of force
Coercion
• Careful: Cyber op must be designed to influence outcome or voluntary conduct
• Not cyber espionage
• Not maliciousness or retaliation:
• Example: Defacing websites
• Not persuasion, criticism, public diplomacy, propaganda
• Example: State-sponsored online media
campaign criticising another State’s policies;
bots and fake news
