Attorney General explains UK’s position on applying international law to cyberspace
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Speech at Chatham House by the Attorney General, the Rt Hon Suella
Braverman QC MP, this evening setting out in more detail the UK’s
position on applying international law to cyberspace It is
fantastic to be standing here today in Chatham House to speak to
you all about cyber and international law. In 1982, on a visit to
Japan, Margaret Thatcher presented a ZX Spectrum to the Japanese
Prime Minister. “This is a Small. Home. Computer,” she told the
bemused premier,...Request free trial
Speech at Chatham House by the Attorney General, the Rt Hon Suella Braverman QC MP, this evening setting out in more detail the UK’s position on applying international law to cyberspace It is fantastic to be standing here today in Chatham House to speak to you all about cyber and international law. In 1982, on a visit to Japan, Margaret Thatcher presented a ZX Spectrum to the Japanese Prime Minister. “This is a Small. Home. Computer,” she told the bemused premier, before purposefully pressing a button on the keyboard which changed the screen to reveal a game of chess. Although by the end of the decade the British entrepreneur Sir Clive Sinclair had sold two and half million units of his ZX in the UK, for most people the personal computer was always just a bit of fun. Why would you painstakingly key in your contacts when you already had an address book? 40 years on, it’s hard to understate our reliance on computers. Just imagine how Margaret Thatcher would have reacted in 1982 if you had told her that the small electronic box in front of her would require defence from a dedicated state agency with a budget running into billions of pounds! As a sound fiscal conservative, she may have been tempted to knock it off the table, rather than showcase the British creation across the world. Once-novel uses of cyber technology, like making a medical appointment or shopping online, have now become routine and sometimes unavoidable. And since an event occurring in cyberspace can have real world consequences, it’s clear that it requires increasing levels of international co-operation, as can be seen in the India-UK cyber statement agreed during the Prime Minister’s recent visit there. Such agreements help States to trade goods, services and ideas. Cyber activity is also now part of how some disputes or tension between countries play out. Our reliance on cyber has, of course, created huge challenges. Events over the past 10 years, in particular, have demonstrated the vulnerability of critical sectors to disruptive State cyber activity. Perhaps most notoriously, the 2017 NotPetya cyber-attack, which masqueraded as ransomware but served principally to disrupt, affecting in particular Ukraine’s financial, energy and government institutions. But its indiscriminate design also caused wider disruption across the globe, costing firms in sectors of industry as varied as shipping, food production, pharmaceutical research and advertising, hundreds of millions in recovery costs. More recently, Microsoft reported that shortly before Russian’s illegal invasion of Ukraine, the Russian Main Intelligence Directorate (the GRU) targeted destructive malware against hundreds of systems across Ukraine affecting the IT, energy and financial sectors. The ongoing conflict in Ukraine has demonstrated, on the part of Russia, a callous disregard for established international rules. However, the unprecedented and united international response in support of Ukraine has also reinforced the value of having a framework that makes clear when State action is unlawful. Cyber is part of the conflict. As Sir Jeremy Fleming recently noted, we have seen cyber in this conflict, and lots of it. The UK, US, EU and other allies announced last week that Russia has been behind a series of cyber-attacks since the start of its illegal invasion. The most recent attack on communications company Viasat in Ukraine had a wider impact across the continent, disrupting wind farms and internet users in central Europe. Putin is also waging a dangerous disinformation war, hiding the truth from the Russian people. Shaping the international order Commentators often talk in hushed tones of cyber weapons, with little understanding of what they are, or of the rules which govern how they are used. This misunderstanding means we can see every cyber incident as an act of warfare which threatens to bring down the modern world around us and it’s not uncommon for even seasoned observers to think in this way, as they speak of cyber as a new battlespace where no rules apply. But cyberspace is not a lawless ‘grey zone’. International law governs and plays a fundamental role in regulating cyberspace. Which is why today I would like to set out how the UK considers international law applies in cyberspace during peacetime, against the backdrop of the Prime Minister’s Integrated Review and the Government’s National Cyber Strategy. With particular focus on the rule on non-intervention, its application to key sectors, and avenues for response. I’m focusing on the law applicable in peacetime because the UK has already set out that cyber operations are capable of breaching the prohibition on the threat or use of force, and that the law applicable in armed conflict applies just the same to the use of cyber means as other means of waging war. And I want to be clear that in the same way that a country can lawfully respond when attacked militarily, there is also a basis to respond, and options available, in the face of hostile cyber operations in peacetime. The UK was one of the very first States to articulate publicly its views on the application of international law in cyberspace. I will build on what one of my predecessors, Jeremy Wright QC, said when he was Attorney General in May 2018, here in Chatham House. At that time, it was considered necessary to set out the fundamentals of the UK view - that the rules-based international order extends to cyberspace, and that there are boundaries of acceptable State behaviour in cyberspace as there are anywhere else. More recently, in June 2021, the UK published a statement as part of the United Nations ‘Group of Governmental Experts’ process, setting out the ways in which international law applies in cyberspace. And the UK continues to attach importance to States clearly setting out their views like this. Significantly, that UK statement concluded by noting the importance of moving “beyond discussion of general concepts and principles, and to be clear about what constitutes unlawful conduct in those sectors which are most vulnerable to destructive cyber conduct”. One of the Integrated Review’s stated goals is for the United Kingdom to “shape the international order as it develops in future frontiers”. Cyberspace stands out among these future frontiers. The National Cyber Strategy priorities include promoting a “free, open, peaceful and secure cyberspace”. International leadership and partnerships will be essential aspects of shaping and strengthening the international cyber governance framework to deliver these objectives. Partnerships like the ‘Quintet’ of Attorneys General, with my counterparts from Australia, Canada, New Zealand and the United States. The United Kingdom’s aim is to ensure that future frontiers evolve in a way that reflects our democratic values and interests and those of our allies. We want to build on increasing activism by likeminded States when it comes to international cyber governance. This includes making sure that the legal framework is properly applied, to protect the exercise of powers derived from the principle of State sovereignty – to which this Government attaches great importance – from external coercion by other States. The law needs to be clear and well understood if it is to be part of a framework for governing international relations and to rein in irresponsible cyber behaviour. Setting out more detail on what constitutes unlawful activity by States will bring greater clarity about when certain types of robust measures are justified in response. The rule on non-intervention Turning to the law - one of the rules of customary international law which is of particular importance in this area is the rule on non-intervention. Customary international law is the general practice of States accepted as law. As such, it is not static. It develops over time according to what States do and what they say. It can adapt to accommodate change in the world, including technological advances. Customary international law is a framework that can adapt to new frontiers and which governs States’ behaviour. A well-known formulation of the rule on non-intervention comes from the International Court of Justice in its Military and Paramilitary Activities judgment. According to the Court in that case, all States or groups of States are forbidden from intervening - …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. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The UK’s position is that the rule on non-intervention provides a clearly established basis in international law for assessing the legality of State conduct in cyberspace during peacetime. It serves as a benchmark by which to assess lawfulness, to hold those responsible to account, and to calibrate responses. This rule is particularly important in cyberspace for two main reasons. First, the rule on non-intervention lies at the heart of international law, serving to protect matters that are core to State sovereignty. As long ago as 1966, the UK made clear its position that: …the principle of non-intervention, as it applied in relations between States, [is] not explicitly set forth in the United Nations Charter but flow[s] directly and by necessary implication from the prohibition of the threat or use of force and from the principle of the sovereign equality of States… Four years later, in 1970, the UK set out its view that “non-intervention reflected the principle of the sovereign equality of states.” And that these principles were equally valid and interrelated. More colloquially, we might say that sovereignty and non-intervention are two sides of the same coin. States have expressed different views on the precise significance of sovereignty in cyberspace. The UK reiterated its own position on this point as recently as June 2021. Namely, that any prohibition on the activities of States, whether in relation to cyberspace or other matters, must be clearly established in international law. The general concept of sovereignty by itself does not provide a sufficient or clear basis for extrapolating a specific rule of sovereignty or additional prohibition for cyber conduct going beyond that of non-intervention. What matters in practice is whether there has been a violation of international law. Differences in legal reasoning must not obscure the common ground which I believe exists when it comes to certain types of unacceptable and unlawful cyber behaviours. I think that common ground also extends to an appreciation that we must carefully preserve the space for perfectly legitimate everyday cyber activity which traverses multiple international boundaries millions of times a second. Second, the rule on non-intervention is also of increasing relevance due to the prevalence of hostile activity by States that falls below the threshold of the use of force or is on the margins of it. In such circumstances, the rule on non-intervention becomes particularly significant as another benchmark by which States can define behaviour as unlawful. Threshold for a prohibited intervention Having identified the importance of the rule on non-intervention, I will now turn to the threshold for its application. The fact that behaviour attributed to another State is unwelcome, irresponsible, or indeed hostile, does not mean that it is also unlawful. A core element of the non-intervention rule is that the offending behaviour must be coercive. Coercion was rightly described in the Military and Paramilitary Activities case as “the very essence” of a prohibited intervention. It is this coercive element that most obviously distinguishes an intervention prohibited under international law from, for example, more routine and legitimate information-gathering and influencing activities that States carry out as part of international relations. But what exactly is coercion? Some have characterised coercion as forcing a State to act differently from how it otherwise would – that is, compelling it into a specific act or omission. Imagine, for example, a cyber operation to delay another State’s election, or to prevent it from distributing tax revenues to fund essential services. To my mind, these are certainly forms of coercion. But I want to be clear today that coercion can be broader than this. In essence, an intervention in the affairs of another State will be unlawful if it is forcible, dictatorial, or otherwise coercive, depriving a State of its freedom of control over matters which it is permitted to decide freely by the principle of State sovereignty. While the precise boundaries of coercion are yet to crystallise in international law, we should be ready to consider whether disruptive cyber behaviours are coercive even where it might not be possible to point to a specific course of conduct which a State has been forced into or prevented from taking. Of course, in considering whether the threshold for a prohibited intervention is met, all relevant circumstances, including the overall scale and effect of a cyber operation, need to be considered. But I believe that we can and should be clearer about the types of disruptive State activity which are likely to be unlawful in cyberspace. Illustrative examples It is therefore important to bring the non-intervention rule to life in the cyber context, through examples of what kinds of cyber behaviours could be unlawful in peacetime. To move the focus to the types of coercive and disruptive behaviours that responsible States should be clear are unlawful when it comes to the conduct of international affairs in peacetime. And being clear on what is unlawful means we can then be clearer on the range of potential options that can lawfully be taken in response. That is, the kinds of activities which would require legal justification, for example, as a proportionate response to prior illegality by another State. This is crucial in enabling States to act within the law whilst taking robust and decisive action. With that in mind, today I will set out new detail to illustrate how this rule applies. A non-exhaustive list, to move this discussion forward. I will cover four of the most significant sectors that are vulnerable to disruptive cyber conduct: energy security; essential medical care; economic stability; and democratic processes. Ensuring the provision of essential medical services and secure and reliable energy supply to a population are sovereign functions of a State. They are matters in respect of which international law affords free choice to States. The Integrated Review highlights the interconnected nature of the global health system, and the importance of building resilience to address global health risks. Covid is a clear example. Likewise, energy security is recognised as including protection of critical national infrastructure from cyber security risks. Covert cyber operations by a foreign State which coercively restrict or prevent the provision of essential medical services or essential energy supplies would breach the rule on non-intervention. Of course, every case needs to be assessed on its facts, but prohibited cyber activity in the energy and medical sectors could include:
Turning to economic stability, covert cyber operations by a foreign State that coercively interfere with a State’s freedom to manage its domestic economy, or to ensure provision of domestic financial services crucial to the State’s financial system, would breach the rule on non-intervention. Such cyber operations could include disruption to the networks controlling a State’s fundamental ability to conduct monetary policy or to raise and distribute revenue, for instance through taxation. Or disruption to systems which support lending, saving and insurance across the economy. Lastly, democratic processes. Free and open elections, using processes in which a population has confidence, are an essential part of the political system in democratic States. All States have the freedom to make their views known about processes in other countries – delivering hard, sometimes unwelcome messages, and drawing attention to concerns. This is part and parcel of international relations. However, covert cyber operations by a foreign State which coercively interfere with free and fair electoral processes would constitute a prohibited intervention. Again, every activity needs to be assessed on its facts, but such activities could include:
I hope that these illustrative examples will assist in the future when considering what is unlawful in cyberspace. I should also add that the nature of cyberspace means that it may not be evident, at least at first, whether a State is responsible for a particular action. This is also a space in which criminal gangs operate for financial profit. To be clear, State direction or control of non-State actors who undertake cyber operations of the kind I have described today would also represent unlawful conduct by that State, in line with international law on State responsibility. Cyber is no different from other spheres of activity in this sense. Provided that it is exercising the requisite degree of direction or control, a State is no less responsible for internationally unlawful cyber operations conducted by a ransomware gang than it would be for the unlawful actions of an armed group, or a corporation. Response options If a State carries out irresponsible, hostile, or unlawful cyber activity, what then are the options available to the victim State? There are a wide range of effective response options available to impose a cost on States carrying out irresponsible or hostile cyber activity, regardless of whether the cyber activity constitutes an internationally unlawful act. These kinds of measures, referred to as acts of retorsion in international law, could include economic sanctions, restrictions on freedom of movement, exclusion from international groupings and wider diplomatic measures. So, there are always options available to stand up to unacceptable behaviour. And you do not have to look far to see how the impact of taking these kinds of measures is amplified when acting alongside other like-minded States. Let me be clear. This means that when states like Russia or China carry out irresponsible or hostile cyber activity, the UK and our allies are always able to take action, whether or not the activity was itself unlawful. Today that might be in response to hostile cyber activity occurring in Ukraine, tomorrow it could be a response to hostile activity in Taiwan. Where a State falls victim to unlawful cyber activity carried out against it by another State, it may also be appropriate to pursue remedies through the courts. Current events in Ukraine have demonstrated the continued relevance of forums like the International Court of Justice (ICJ) in the context of a wider response. The UK has accepted the compulsory jurisdiction of the ICJ, and we encourage others to do likewise. Beyond this, under the international law doctrine of countermeasures, a State may respond to a prior unlawful act, in ways which would under normal circumstances be unlawful, in order to stop the offending behaviour and ensure reparation. The UK has previously made clear that countermeasures are available in response to unlawful cyber operations by another State. It is also clear that countermeasures need not be of the same character as the threat and could involve non-cyber means, where it is the right option in order to bring unlawful behaviour in cyberspace to an end.
However, some countries simply do not have the capability to
respond effectively by themselves in the face of hostile and
unlawful cyber intrusions. It is open to States to consider how
the international law framework accommodates, or could
accommodate, calls by an injured State for assistance in
responding collectively. I’ve focused today on the application of international law to cyberspace, but I also want to touch on the broader context. Applying the international law framework to this new frontier is just one part of a wide-ranging international effort, by the UK and other like-minded States, to promote a free, open, peaceful and secure cyberspace. There are a range of additional measures currently being taken domestically and internationally to counter harmful behaviour in cyberspace. Improving cyber resilience is central to reducing cyber-attacks and their real-world impact. Over the last decade the UK has delivered a wide range of interventions aimed at strengthening the UK’s cyber resilience, including through the creation of the National Cyber Security Centre (NCSC). Resilience is a core element of the UK’s National Cyber Strategy. My colleague the Chancellor of the Duchy of Lancaster spoke last week at the annual CYBER UK conference about the importance of resilience – how this is something we all need to take responsibility for, across the public and private sectors, to ensure that the benefits of technology are felt by the whole of society. States have always had a duty to protect their external border from foreign attack but cyber has, in a sense, increased the size of that border, by an unimaginable factor. Viewed this way, the UK’s external border is no longer just around the corners of Great Britain and around Northern Ireland. It is located in every household and business in the country. But just because the scale of the challenge has increased, it does not change our fundamental duty to protect citizens, families and businesses from the array of threats present in cyberspace. The UK has also developed a cutting-edge capability to carry out cyber operations to keep ourselves and our friends and allies protected from those who seek to harm us – the National Cyber Force. The National Cyber Force draws together personnel from intelligence and defence in this area under one unified command for the first time. It can conduct offensive cyber operations - flexible, scalable measures to meet a full range of operational requirements. And, importantly, the National Cyber Force operates under an established legal framework. Unlike some of our adversaries, it respects international law. It is important that democratic States can lawfully draw on the capabilities of offensive cyber, and its operation not be confined to those States which are content to act irresponsibly or to cause harm. This goes to the heart of how the UK operates as a responsible cyber power. The role of law enforcement is also important. The police and National Crime Agency are focused on addressing the cybercrime threat here in the UK. Our domestic legislation such as the Computer Misuse Act enables the prosecution of criminals attacking our computer systems, and I have no doubt we will ensure that the law here in the UK will continue to evolve as the threat does. Law enforcement authorities are also working together across the globe, including on the basis of international agreements such as the Budapest Convention. This encourages a common approach to cybercrime, adopting appropriate domestic criminal law frameworks and fostering international cooperation. And closer cooperation in the criminal justice space means that ransomware gangs cannot act with impunity. Coordination between States, in a more general sense, is also crucial in responding to hostile State activity in cyberspace and imposing a cost on those who seek to abuse the freedom and opportunity that technological progress has provided them. States are developing more sophisticated and coordinated diplomatic and economic responses. This can be seen in the response to the recent operation targeting Microsoft Exchange servers, where 39 partners including NATO, the EU and Japan coordinated in attributing hostile cyber activity to China. It can also be seen in the response to the Russian SolarWinds hack which saw coordinated US, UK and allied sanctions and other measures. Working with States to reach shared agreement on prohibited behaviours for key sectors, like those I have set out today, will help us move beyond theoretical discussions around sovereignty and non-intervention. To help define what responsible cyber power means in practice.
When taken in collaboration with other efforts – improving
resilience, promoting cyber security, international cooperation,
and having the operational capability to respond effectively to
those seeking to harm us – international law can help us all to
realise this vision of a free, open, peaceful and secure
cyberspace. In closing, I will make a few final remarks. International law matters in cyberspace because if we don’t shape the rules here, if we don’t have a clear framework to counter hostile activity in cyberspace, and if we don’t get cyber security right, the effects will be likely to be felt more often and in hugely disruptive ways by ordinary people. For example, a single cyber breach in 2020 cost a local council here in the UK an estimated £10 million in recovery costs and significantly disrupted services provided to the local population for months by shutting down IT systems and stopping the council from carrying out property purchases within the borough. Championing a cyber governance framework that is founded in international law means we can also provide a secure foundation for international partnerships on technology. To unlock the potential of fields such as Artificial Intelligence and quantum computing. The UK and its allies are at the forefront of this work. Earlier this year, the Foreign Secretary concluded a Cyber and Critical Technology Partnership with her Australian counterpart to strengthen global technology supply chains and promote the UK’s positive technology vision. Providing further detail on how international law applies in cyberspace, as I have sought to do today, will help us to more effectively ‘call out’ the most egregious hostile State behaviour as unlawful. The UK will continue to call out behaviour – both irresponsible and unlawful. Our approach will also encourage more agile and decisive international action in response to specific threats, using our full freedom of manoeuvre within the law. It will help all States understand the parameters and thresholds of lawful or unlawful action. It will serve to avoid inadvertent or damaging escalations. And our approach will enable us to do these things in close partnership with the many other States who share our ambition to shape and strengthen the international order in future frontiers. |