Thirteen years of negotiations at the United Nations aimed at restricting cyberwarfare collapsed in June, it has emerged, due to an acrimonious dispute that pitted Russia, China and Cuba against western countries.
The dispute among legal and military experts at the UN, along old cold war lines, has reinforced distrust at a time of mounting diplomatic tension over cyber-attacks, such as the 2016 hacking of the US Democratic National Committee’s (DNC) computers. That break-in was allegedly coordinated by Russian intelligenceand intended to assist Donald Trump’s presidential campaign.
Negotiations aimed at forging an international legal framework governing cybersecurity began in 2004. Experts from 25 countries, including the UK and all the other members of the UN security council, participated in the discussions.
But in June, diplomats at the UN abandoned any hope of making further progress, amid a row centred on the right to self-defence in the face of cyber-attacks.
At previous sessions, officials accepted that the principles of international law should apply to cyberspace, including the UN charter itself. Article 51 of the charter states that nothing shall “impair the right of individual or collective self-defence” in the face of an armed attack.
The Cuban representative, Miguel Rodríguez, told the final meeting of negotiatorsthat recognising self-defence rights in cyberspace would lead to militarisation of cyberspace and “legitimise … unilateral punitive force actions, including the application of sanctions and even military action by states claiming to be victims” of hacking attacks.
Without naming Russia or China, Michele Markoff, who led the US delegation to the UN’s Group of Governmental Experts (GGE), released a statement in the aftermath of the collapse of negotiations attacking “those who are unwilling to affirm the applicability of these international legal rules and principles”.
Such countries “believe their states are free to act in or through cyberspace to achieve their political ends with no limits or constraints on their actions”, Markoff said. “That is a dangerous and unsupportable view.”
Speaking at a cybersecurity conference in Israel after the breakdown of the UN process, a senior Russian official, Oleg Khramov, blamed western countries for the impasse. “Talks about the need to adopt rules of behaviour in the information space remained mere talk. We all were thrown years back,” he said.
Perhaps Russia, China and Cuba want to avoid the perception that ‘the west’ gets to dictate the rules of the game
Mike Schmitt, professor of international law at Exeter University and a former US air force lawyer, has been monitoring the UN GGE discussions. He said he feared a calculated decision has been made by Moscow and Beijing that the west has more to lose if there is no guaranteed right to retaliate against cyber-attacks.
“Perhaps [Russia, China and Cuba] … want to avoid the perception that ‘the west’ gets to dictate the rules of the game for cyberspace,” he wrote on the Just Security blog.
“Or perhaps the answer is legal-operational in the sense that they want to deprive the west of a legal justification for responding to hostile cyber operations that they themselves launch.”
Part of the dispute was over the difficulty of establishing who is responsible for a foreign cyber-attack. Proving whether hackers had state backing is extremely difficult, particularly for countries that do not possess adequate technological resources.
The legal row over cyberwarfare echoes international concerns over the deployment of drones. Both technologies permit the application of force by remote control, effectively lowering the threshold for future conflicts.
Schmitt, who is also the editor of the Tallinn Manual on International Law Applicable to Cyber Warfare, said: “From the western perspective, Russia and China are the two countries they are most concerned about. I’m comfortable with the US intelligence conclusion that the Russians [were responsible for hacking into the DNC].
“There are a number of states that like legal ambiguity because it gives them flexibility. [They] can operate without risking any collective [punishment] for being a lawbreaker … It may not be in their national interest to clarify the law. There are no more sessions planned for the GGE but there are discussions about what to do next.”
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