A Compendium of Good Practices

Developing a National
Position on the Interpretationof International Law andState Use of ICT
SECURITY AND TECHNOLOGY PROGRAMME

Contents
Acknowlegdements

3

Abbreviations

4

Executive Summary										

51 I N T R O D U C T I O N A N D C O N T E X T 								

62 T H E U T I L I T Y O F A N AT I O N A L P O S I T I O N 							

8

2.1Transparency and common understandings

8

2.1.1

Transparency on the national level

8

2.1.2

Transparency on the International level

9

2.2

National positions as a reference document

10

2.3

Fostering cooperation

10

2.4

Enhancing preparedness

11

2.5

Development of International law and promotion of compliance11

3 T H E S C O P E A N D C O N T E N T O F A N AT I O N A L P O S I T I O N 				

13

3.1

The scope of a national position								

13

3.2

The content of a national position							

134 T H E P R O C E S S O F D E V E L O P I N G A N AT I O N A L P O S I T I O N 				

16

4.1

Preliminary steps

17

4.2

Capacity-building

18

4.3

Drafting a national position

19

4.4

Adoption, publication and dissemination

21

5 C O N C L U S I O N 							

24R E F E R E N C E S 								

25Acknowledgements
Support from UNIDIR’s core funders provides the foundation for all of the Institute’s activities.
Work of the Security and Technology Programme on international cybersecurity is funded by theGovernments of Czechia, France, Germany, Italy, the Netherlands, Norway, Switzerland and theUnited Kingdom and by Microsoft. Dedicated funding for all activities leading to this compendium
was provided by the United States Government.
This compendium summarizes the outcomes of a dedicated closed-door workshop; the authors
wish to thank workshop participants for their active engagement and invaluable insights.

About UNIDIRThe United Nations Institute for Disarmament Research (UNIDIR) is a voluntarily funded, autonomous
institute within the United Nations. One of the few policy institutes worldwide focusing on disarmament,
UNIDIR generates knowledge and promotes dialogue and action on disarmament and security.
Based in Geneva, UNIDIR assists the international community to develop the practical, innovativeideas needed to find solutions to critical security problems.

Notes
The designations employed and the presentation of the material in this publication do not imply theexpression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning
the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitationof its frontiers or boundaries. The views expressed in the publication are the sole responsibility of theindividual authors. They do not necessary reflect the views or opinions of the United Nations, UNIDIR,
its staff members or sponsors.

About the Author
This report was produced by UNIDIR’s Security and Technology Programme. Dominique Steinbrecher
and Andraz Kastelic drafted the report; Elia Duran-Smith and Edward Madziwa contributed to thisreport.

Cover photography © istockphoto.com/Chinnapong. Design and layout by Kathleen Morf.
www.unidir.org – © UNIDIR 2024

ACKNOWLEDGEMENTS

3

Abbreviations
GGE

Group of Governmental Experts

ICJ

International Court of Justice

ICT

Information and communications technology

IHL

International humanitarian law

MFA

Ministry of Foreign Affairs

MOD

Ministry of Defence

MOJ

Ministry of Justice

OAS

Organization of American States

OEWG

Open-ended Working GroupA B B R E V I AT I O N S

4Executive Summary
This paper provides a collection of good practices and national experiences in developing a national
position on the interpretation of international law in cyberspace as recorded by the States that havealready developed and published one. It focuses on three aspects of a national position: utility, scopeand process.
National positions can foster transparency on the national level as well as internationally. They can
act as a reference document and can therefore guide bilateral engagement with international partners
as well as national contributions to multilateral processes dedicated to State use of information andcommunications technology (ICT) in the context of international peace and security. When drafted inconsultation with international partners, a national position can foster international cooperation. It canalso enhance preparedness to address future cyber operations by providing national guidelines withrespect to assessment, classification and response to variety of malicious cyber operations. Finally,
the utility of national positions can be found in their ability to contribute to the development of international law in general. This be not only through its interpretation, but also via the potential emergenceof new customary international law or codification efforts of a new legal regime.
National positions are dynamic in nature. A State’s national position could initially focus on key issues
as defined by that State’s interest and capacity. This approach requires prioritizing certain legal areas,
with the understanding that the position may evolve in the future. In particular, it may need to adapt
to technological developments and evolving multilateral discussions.
To maximize their utility, national positions should prioritize the interpretation of principles and rules
previously agreed by the various multilateral discussions as applicable to State use of ICT. When
deciding on the content of its national position, a State could further consult existing regional
approaches to the topic and the national positions of other States. Indeed, topics most frequently
addressed by existing national positions include the United Nations Charter, international
humanitarian law, the law of State responsibility, due diligence and international human rights law.
Last but not least, this compendium suggests 10 steps that a State could consider taking whendeveloping its national position – starting with defining the scope of the position through, inter alia,
threat landscape assessment and consideration of foreign policy priorities, and concluding withpublication and dissemination of the position.

EXECUTIVE SUMMARY

5

1 Introduction and context
International law is the set of rules that guide relations between sovereign States, forming a framework
for their peaceful coexistence. The Charter of the United Nations is the cornerstone of the contemporaryinternational legal order. Despite the political, economic, societal and scientific progress that havebeen made since its adoption in 1945, the Charter remains a vital tool for maintaining order, promoting
justice, and fostering confidence and cooperation in our interconnected world.1 Indeed, in the context
of information and communications technology (ICT), States recognized that international law is“essential to maintaining peace and stability and promoting an open, secure, stable, accessible andpeaceful information and communications technology environment”.2
In 2013, the Group of Governmental Experts (GGE) on Developments in the Field of Information andTelecommunications in the Context of International Security agreed that international law applies to
the State use of ICT.3 This outcome was welcomed by the United Nations General Assembly.4 States
have subsequently continued to discuss how international law applies to State behaviour in the digitaldomain.5 To facilitate these exchanges, the Open-Ended Working Group (OEWG) on Security of andin the use of Information and Communications Technologies 2021–2025 has repeatedly called on
Member States to “continue to voluntarily share their national views, which may include national statements and State practice, on how international law applies in the use of ICTs”.6
To date, however, only 29 States have developed and published individual national positions on
how international law applies to State conduct in cyberspace.7 The relatively low numbers of national
positions may be attributed to various factors, including limited awareness, resource constraints or aperception that the issue is not of immediate concern; certain States have said as much in statements
to the OEWG.
The problem has been exacerbated by the lack of geographical representation among the Member
States that have published a national position. More than half of the States with individual public
national positions belong to the Western European and other States group.8 Only a handful of Statesfrom other regions have published individual national positions. Recently, the African Union publisheda Common African Position on the Application of International Law in Cyberspace and called on its
member States to consider developing and issuing individual, national views on the interpretationof international law in the context of the use of ICT.9

1	This was noted as early as 1970. General Assembly, A/RES/2625(XXV), Preamble.
2
General Assembly, A/RES/75/240.
3
General Assembly, A/68/98, 2013, para. 19.
4
General Assembly, A/RES/68/243.
5
General Assembly, A/78/265, 2023, para. 30.
6Ibid, para. 34.
7
See UNIDIR’s Cyber Policy Portal, https://www.cyberpolicyportal.org.
8
Department for General Assembly and Conference Management, “Regional Groups”.
9
African Union, “Common African Position”.

INTRODUCTION AND CONTEXT

6

A greater number of individual national interpretations of international law in cyberspace andgeographical diversity of national positions stating these interpretations, could foster greater
confidence among States. They could also facilitate comprehensive international deliberations
on common understandings of how international law applies in cyberspace.
To facilitate peer-to-peer capacity-building and support United Nations Member States in theirmultilateral engagements on how international law applies in cyberspace, UNIDIR’s Security andTechnology Programme set out to collect good practices and lessons learned from the States thathave developed and published their national interpretation positions. The research team collected
the data through a dedicated workshop, held in Geneva on 18 January 2024, that focused on theutility of a national position, its scope and its development process.
This compendium is based on the insights shared by the representatives of the 19 Member Statesthat attended the workshop.10 This is, two-thirds of the States with an existing position at the time ofwriting, and represents a diverse collection of the lessons and good practices identified during theworkshop discussions.

10	The 19 States were Australia, Brazil, Canada, Czechia, Estonia, Finland, France, Germany, Italy, Kenya, the Netherlands,
Norway, Pakistan, Poland, the Russian Federation, Singapore, Sweden, Switzerland and the United States of America.

INTRODUCTION AND CONTEXT

7

2 The utility of a national position
This section highlights various, interrelated reasons in favour of developing and publishinga national position on the interpretation of international law in cyberspace.

Utility of a national position•

Promotes transparency and common understandings•

2.1> National level•		> International level•

Serves as a reference document for international dialogue•

Fosters cooperation among different stakeholders•

Enhances national preparedness to address malicious cyber operations•

Provides a platform to further clarify and contribute to the development•of international law and promote its complianceTransparency and common understandings

Among the States that have already done so, a commonly expressed rationale for developing andpublishing an individual national position is the need to enhance transparency on the national andinternational levels. Transparency in turn facilitates the development of common understandings
on how international law applies in cyberspace.
2.1.1

Transparency on the national level

The process of developing a national position contributes to the identification of relevant national
stakeholders that are, or should be, engaged in the discussion on international law in cyberspaceand relevant existing national efforts.11 It also provides national structures with an opportunity toreflect on complex legal issues and to clarify their understandings of the law in the domain of ICT.
The process of developing a national position inherently includes an element of capacity-building12
and thus promotes knowledge-sharing among the domestic stakeholders. Additionally, the process
promotes national dialogue and cooperation, and it minimizes the potential for the duplication of efforts.

11	In some cases, institutional constraints include the distribution of expertise in a way that is difficult to articulate, andthus the need for further internal dialogue which can be fostered through the process of developing a national position.
See, in this regard, OAS, “Improving Transparency”, paras 18–19.
12
See Section 4.2 below.

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8Last but not least, if the process culminates in the adoption of a position, the outcome is a common
national platform. This ensures consistency across the different agencies and departments intheir efforts related to international cybersecurity, and therefore contributes to the State’s internal
coherence in the interpretation of the existing international legal framework.
2.1.2

Transparency on the International level

Publishing or sharing a national position also constitutes an exercise in transparency on the international level. It promotes confidence by advancing legal clarity and certainty and, thus, predictability
in international relations. It can reduce the risks of misunderstandings and the potential for escalation
in international relations, thereby aiding common efforts towards international peace and security.
Elaboration of a national interpretation of international law helps with identifying sensitive orcontroversial issues and, by establishing so-called red lines, communicates legal expectations of
the behaviour of other States. Some workshop participants suggested such national positions cantherefore have a deterrent function.
Moreover, transparency in relation to the international community could facilitate international dialogue.
National positions can contribute to the development of common international understandings on
how international law applies to cyberspace and the identification of situations to which internationallaw applies. A national position can also be a valuable instrument for identification of areas of international convergence and divergence, and pathways to address potential gaps.
United Nations Members States have found similar consensus on transparency in various multilateral processes. For example, the 2019–2021 GGE on Advancing Responsible State Behaviour in
Cyberspace in the Context of International Security stated that international law is key to enhancing
confidence among States.13 It also acknowledged that discussion and exchanges of views by States
on how specific rules and principles of international law apply to the use of ICTs is essential for“deepening common understandings, avoiding misunderstandings and increasing predictability
and stability”.14
In the same vein, the 2019–2021 OEWG on Developments in the Field of Information and Telecommunications in the Context of International Security recommended in its final report that States
continue to develop their national views and assessments on how international law applies to theiruse of ICTs and to voluntarily share such positions and practices. Its rationale was that deepening
common understanding on the issue would contribute to building consensus within the international
community.15

13
14
15

General Assembly, A/76/135, para. 69.
General Assembly, A/76/135, paras 72–73.
General Assembly, A/75/816, paras 36–37.

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9Similar views have also been clearly reflected in existing national positions.16 Moreover, improved
transparency in the application of international law in cyberspace has been stressed as the clear
objective for regional projects.17
Finally, according to the 2019–2021 GGE and the 2019–2021 OEWG, transparency measures suchas the voluntary exchange of views constitute confidence-building measures.18 This has also
been reaffirmed at the regional level, for example in the list of cooperation and confidence-building
measures in cyberspace composed by the Inter-American Committee against Terrorism of theOrganization of American States (OAS/CICTE),19 as well as by other stakeholders.20

2.2

National positions as a reference document

National positions have proven to be useful as reference documents or “road maps” for enhancing
international dialogue by guiding governments’ engagements and statements in international multilateral processes, regional dialogues and bilateral interactions. At the same time, they are consideredas dynamic documents that may benefit from the continuous discussion at the international level andfrom capacity-building activities within these settings.

2.3

Fostering cooperation

Relatedly, the development of national positions can foster engagement among States and otherrelevant stakeholders in the field of ICTs. This is particularly the case when the State drafting a
position consults with different stakeholders and international partners, seeking guidance, assistanceor feedback. In turn, this could open new avenues for bilateral, regional and international cooperationand technical assistance or capacity-building efforts.21 Effective cooperation has a prominent role in
the framework of responsible State behaviour in the use of ICT and has been identified as essential
for peaceful and stable cyberspace.22

16	See, for example, African Union “Common African Position”, para. 4; Canadian Government, “International Law
Applicable in Cyberspace”, para. 5; Costa Rican Ministry of Foreign Affairs, “Costa Rica’s Position”, para. 5; Chinese
Ministry of Foreign Affairs, “China’s Positions”; Czech Ministry of Foreign Affairs, “Position Paper”, p. 1; Danish
Government, “Denmark’s Position Paper”, p. 2; French Ministry of Armed Forces, “International Law Applied toOperations in Cyberspace”, p. 1; German Federal Government, “On the Application of International Law in Cyberspace”,
p. 2; Irish Department of Foreign Affairs, “Position Paper”, para. 2; Japanese Ministry of Foreign Affairs, “Basic Position”,
p. 2; Netherlands Government, “International Law in Cyberspace”, p. 1; Polish Ministry of Foreign Affairs, “Republic of
Poland’s Position”, p. 1; Swedish Government Offices, “Position Paper”, p. 1; United Kingdom Foreign, Commonwealthand Development Office, “Application of International Law to States’ Conduct in Cyberspace”; General Assembly,
A/76/136, p. 18 (Brazil), pp. 23–24 (Estonia), p. 53 (Kenya), p. 136 (United States); Egan, “International Law andStability in Cyberspace”, pp. 6–7.
17	OAS, “Improving Transparency”, para. 1.
18	General Assembly, A/76/135, paras 82ff; General Assembly, A/75/816, paras 41ff.
19	OAS/CICTE, “List of Consolidated Cooperation and Confidence-building Measures in Cyberspace”, para. 8.
20	See, for example, Oxford Institute for Ethics, Law and Armed Conflict, “ELAC Intervention”; Moynihan,“The Vital Role of International Law”.
21	For example, during the development of the common African position, a capacity-building programme was organizedfor diplomats, experts and government lawyers in the region, which was funded and co-organized with the Governmentof Canada. See Helal, “The Common African Position”.
22	General Assembly, A/76/135, para. 5.

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2.4

Enhancing preparedness

By clarifying a State’s interpretation of thresholds of acceptable State use of ICTs under internationallaw, a national position not only contributes to international dialogue but can also enhance national
preparedness to respond to malicious cyber operations. The development of a national position
can contribute to the State’s preparedness by providing a clear framework for assessing, classifying
and responding to malicious cyber operations.

2.5

Development of International law and promotion of compliance

The clarification and exchange of States’ views can contribute to the development of internationallaw in different ways.
First, the process of drafting a national position can provide a platform to further clarify and contributeto the development of general rules of international law. Second, national positions can contributeto the interpretation of international law by defining how existing treaty law and the rules of customaryinternational law apply and can be extended to the cyber domain by means of interpretation.23
Third, national positions could themselves contribute to the development of customary internationallaw, one of the main sources of international law.24 The emergence of customary rules requires
the concurrent existence of a general State practice and an acknowledgement by States that thisparticular practice is guided by the existence of a legal rule or, in other words, a sense of legal
obligation. National positions on international law in cyberspace can serve as evidence of one of
the elements of customary international law: they can be seen as the expression of opinions by aState in regard to international rights and obligations in cyberspace or can be interpreted as evidenceof corresponding practice of a State. When they reach a high level of international adoption, national
positions can therefore serve as a basis for the development of international law. More specifically,
they can contribute to the formation of new rules of customary international law in the context of Stateuse of ICT.
In addition, some States currently maintain that cyber threats to international peace and security
necessitate an international response in a form of a new, dedicated legal regime.25 For example,
a number of States co-sponsored a OEWG paper that outlined a concept for a United Nations
convention on ensuring international information security.26 In addition to facilitating international
dialogue on how existing international law applies to cyberspace, national positions would enable
the States to contribute to the discussion on “whether gaps in common understandings exist on
how international law applies”27 and evaluate the proposals as above.

23	For further discussions on the concept of “dynamic” or “evolutionary” interpretation of international law, see Vienna
Convention on the Law of Treaties, Article 31(3)(b); ICJ, “Costa Rica v. Nicaragua”, p. 213, para. 66; Marco Roscini,
Cyber Operations and the Use of Force, p. 19ff.
24	See Statute of the International Court of Justice, Article 38(b).
25	General Assembly, A/77/275, annex.
26	Russian Federation et al., “Updated Concept”.
27	General Assembly, A/77/275, annex, para. 15(b)(i)–(ii) and International Law section, Recommended Next Steps 2.

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Last but not least, some States suggest that national positions contribute to the strengthening of
the rule of international law and promote compliance.28
However, as highlighted above, for this to materialize requires engagement by a broader range ofStates, diverse voices and a better geographical representation in the international dialogue on
how international law applies to the State use of ICT. As stressed by the African Union in its common
African position and in line with the principle of sovereign equality, “[a]ll States have an equal rightto participate in the articulation of rules of international law that apply in cyberspace and the viewsof all States have equal weight and value in this process”.29

28	See, for example, Polish Ministry of Foreign Affairs, “Republic of Poland’s Position”, p. 1.
29	African Union, “Common African Position”, para. 6. See also in this regard discussion in the realm of the OAS: OAS,
“Improving Transparency”, p. 17. See also EU Cyber Direct, “Toward an EU Position”, p. 2.

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3 The scope and content
of a national position
By summarizing the deliberations of the workshop, this section provides guidance on the scopeand content of a national position on the interpretation of international law in cyberspace.

3.1

The scope of a national position

The workshop discussions emphasized the dynamic nature of national positions. A position therefore
does not need to be exhaustive but should instead focus on the most important issues as defined by
the individual State based on its national priorities and capacity. This necessitates prioritization of legal
areas to be addressed initially, while national positions can develop over time through a continued
improvement process. A State could choose to address, for example, the most contentious legal
issues in the context of State use of ICTs; those that are considered more relevant given the current
threat landscape; or topics that are aligned with its foreign policy priorities. The scope of the national
position may also depend on the desired impact (various aspects of the utility of a national position
are discussed in section 2).
Existing national positions refer to their non-exhaustive character.30 Arguments for this are based on
the fact that positions may eventually need to adapt in order to address rapid technological developments
or to enable continuing and meaningful engagement in the evolving multilateral discussions.31 Indeed,some States have already complemented or updated their initial national positions on international law
in cyberspace.

3.2

The content of a national position

Workshop discussions indicated that the structure of a national position should clearly reflect its
purpose. Accordingly, a national position would probably benefit from an introduction and conclusion,
not only to frame the content but also to provide its purpose. This could include the backdrop to thedevelopment of the national position on the interpretation of international law, such as the specificthreat landscape and the need for transparency, preparedness and cooperation in this regard.

30	See, for example, African Union, “Common African Position”, para. 10; Canadian Government, “International Law
Applicable in Cyberspace”, para. 7; Czech Ministry of Foreign Affairs, “Position Paper”, p. 1; Danish Government,“Denmark’s Position Paper”; Irish Department of Foreign Affairs, “Position Paper”, para. 3; Italian Ministry of Foreign
Affairs and International Cooperation, “Italian Position Paper”, p. 3; Swiss Federal Department of Foreign Affairs,“Switzerland’s Position Paper”, p. 1; United Kingdom Foreign, Commonwealth and Development Office, “Applicationof International Law to States’ Conduct in Cyberspace”; General Assembly, A/76/136, p. 18 (Brazil), p. 75 (Romania)
p. 85, para. 21 (Singapore); Koh, “International Law in Cyberspace”, p. 3.
31	See, for example, African Union, “Common African Position”, para. 10; Canadian Government, “International Law
Applicable in Cyberspace”, para. 7; Danish Government, “Denmark’s Position Paper”; General Assembly, A/76/136,
p. 85, para. 20 (Singapore); Swedish Government Offices, “Position Paper”, p. 1, among others.

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13The content of the existing national positions is diverse, which is reflected in the heterogenous
positions expressed in the relevant multilateral discussions on international law in cyberspace.
What is more, recent international discussions suggest that some Member States either questionor are cautious about the application of certain bodies of law or specific rules.
Nonetheless, the representatives of United Nations Member States participating at the workshop
identified appropriate topics for national positions. These bodies of law, listed below in no particularorder, reflect the focused discussions of the 2021–2025 OEWG and enjoyed varying degree ofsupport during the workshop.

• The applicability of international law to cyberspace and key concerns in this regard• United Nations Charter: most participants stressed that national positions should
address issues under the United Nations Charter, including:

•
•
•
•

State sovereignty
The principle of non-intervention
The prohibition of the threat and use of force
The peaceful settlement of disputes• Other branches of international law•••

International human rights law
International humanitarian law
The law of neutrality• The law of State responsibility, with particular focus on•••

Attribution

Countermeasures
Due diligence• Other issues:

some participants opined that States should also address the role of private
actors, international cooperation, capacity-building, and the link with cybercrime
and technological development.

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14When deciding on the content of the national position, most States sought inspiration in the outcomesof the multilateral discussions on international law in cyberspace, in regional approaches to the topic
and in the national positions of other States.
Indeed, the list of topics above closely follows those identified by the relevant multilateral processes
as having central importance.32 Moreover, an analysis of the 30 positions publicly available as ofMarch 2024 indicates congruence on the issues that should be dealt with in a national position:33
All current national positions refer tothe general topic of the applicability ofinternational law in cyberspace
28 national positions refer to State
sovereignty
27 national positions address the applicability of international humanitarian law(IHL) to cyber operations (some referringto the topic more generally and others
dealing in depth with issues such as conflictclassification, the notion of attack under IHL
and the application of the principles on the
conduct of hostilities)
The vast majority of positions discuss
the law on State responsibility, with
26 addressing in particular the complex
topic of attribution and 25 discussing
countermeasures
26 national positions address theprinciple of non-intervention and theprohibition of the use of force
24 national positions address the rightto self-defence under the United Nations
Charter as well as the issue of due diligence
23 positions refer to the application ofinternational human rights law in cyberspace

Other topics widely addressed by the existing national positions are the peaceful settlement of disputes,
acts of retorsion, the plea of necessity and the law of neutrality.

32	The specific topics are: (a) sovereign equality and State sovereignty; (b) the principle of non-intervention; (c) the
peaceful settlement of disputes; (d) the prohibition of the threat and use of force and the inherent right of States to takemeasures consistent with international law and as recognized in the United Nations Charter; (e) respect for human rights
and fundamental freedoms; (f) due diligence; (g) the law on State responsibility; and (h) that international humanitarian
law applies only in situations of armed conflict, recalling the established international legal principles including, whereapplicable, the principles of humanity, necessity, proportionality and distinction. See General Assembly, A/70/174,
paras 26–28; General Assembly, A/76/135, paras 70–71.
33	See all the publicly available national positions on UNIDIR’s Cyber Policy Portal, https://cyberpolicyportal.org.

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4 The process of developinga national position
This section summarizes the workshop outcomes related to the process of developing a national
position on the interpretation of international law in cyberspace. In particular, it outlines how todevelop a national position and who should be involved and identifies the key lessons learnedby States that have developed a national position.
The following 10 steps emerged as good practices related to the process of developing a national
position. The list represents a set of recommendations which can be used as guidance throughout
the process of development of a national position; they should not be treated as rigid requirements
for success and should be adapted to each specific national context.

1

WHAT? Scope

2

WHO? Stakeholders involved

3

HOW? Key institutional steps

4

WHEN? Plan

Capacity-building

5

Capacity-building

Drafting a national 		
position

6

Background resources and interpretation tools

7

Collaborations and consultations

8

General drafting principles

9

Adoption

10

Publication and dissemination

Preliminary steps

Adoption, publicationand dissemination

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4.1 Preliminary steps

1

WHAT? Define the scope:A.

Identify the target audience and the desired impact of the national position.

B. Identify key questions that the national position should address.
C. Define the main areas of international law that the national position should address.
As stressed in sections 2 and 3, in defining the content of its national position a Statecan draw inspiration from other States’ positions and the discussions within multilateraland regional processes, among other sources.
D. Within the preliminary steps, and to better understand the framework in which the national
position will be developed, a State could also take the following preliminary actions:>Define the threat landscape in the State, to be able to shape the position accordingly.

>

Identify the national security and foreign policy priorities of the State oninternational law topics and cybersecurity issues that should necessarily be
included in the position or on which the State would require an in-depth analysis.

2

WHO? Define the stakeholders involved:
A.

Identify the agencies and departments that should be involved in the process.

B. Allocate the roles and responsibilities among the different stakeholders involved.
C. Identify the penholder and create a mandate for the agency or department taking thelead in the drafting of the position. According to some States participating in the workshop,
the establishment of a small drafting group proved to be a good practice as did the
involvement of national legal advisers or experts. In addition to legal experts, and given
the complexities of cyberspace, States could consider involving a broad range of experts
with technical, practical and operational experience.
D. Establish regular consultations with and updates to the larger group of stakeholders.
An analysis of the existing national positions indicates that they could be prepared by, orin consultation with, the Ministry of Foreign Affairs (MFA),34 the Ministry or Department of
Defence (MOD/DOD)35 and/or the Ministry of Justice (MOJ) or Attorney-General’s Office.36
In many cases, the process also involved other ministries, departments or agencies, suchas the National Cybersecurity Agency.37

34	See Canadian Government, “International Law Applicable in Cyberspace”; Costa Rican Ministry of Foreign Affairs, “Costa
Rica’s Position”; Finnish Ministry for Foreign Affairs, “Finland Published its Positions”; Irish Department of Foreign Affairs,“Position Paper”; Japanese Ministry of Foreign Affairs, “Basic Position”; New Zealand Foreign Affairs & Trade, “The Applicationof International Law”, p. 4; Polish Ministry of Foreign Affairs, “Republic of Poland’s Position”; Swiss Federal Department of
Foreign Affairs, “Switzerland’s Position Paper”.

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3

HOW? Identify key institutional steps:
A.

Anticipate the requirements of the institutional context with which the drafting of thenational position will have to comply. For example, necessary reviews and approvalsby specific authorities, agencies or public powers, and the definition of which authority(or authorities) will adopt the position.

B. Ensure the allocation of an appropriate and dedicated budget to assure the necessaryfinancial and human resources.

4

WHEN? Formulate a plan:
Establish a clear timeline for the development of the national position, with precise deadlines.
To avoid unexpected delays and considering the number of stakeholders involved, the timeline
should factor in processes such as the time needed for internal and external consultations.
It should also accommodate the time for its revision and approval.

4.2 Capacity-building

5

Capacity-Building
Building the capacity of those involved in the development of the national position is arecommended cross-cutting step. It facilitates provision of the legal and technical expertise
required for a knowledgeable interpretation of international law and for development of theState’s views on how it applies to cyberspace, considering all the necessary backgroundand existing discussions. Capacity-building can take the form of exercises, scenario-based
workshops, training programmes, conferences, etc. It can also benefit from bilateral, regional
and international cooperation. Capacity-building activities should follow the principles ofcapacity-building as agreed by the 2019–2021 OEWG.38
States could consider capacity-building activities for all the involved stakeholders. This will not
only facilitate development of the position but contribute to confidence among various relevant
national entities and promote internal cohesion.

35	See, for example, French Ministry of Armed Forces, “International Law Applied to Operations in Cyberspace”; Ney, “Remarks”.
36Wright, “Cyber and International Law”; Braverman, “International Law in Future Frontiers”; Schöndorf, “Israel’s Perspective”.
37	See, for example, Czech Ministry of Foreign Affairs, “Position Paper”, p. 1; German Federal Government, “On the
Application of International Law in Cyberspace”; Italian Ministry of Foreign Affairs and International Cooperation,“Italian Position Paper”, p. 3; Netherlands Minister of Foreign Affairs, Letter; Musæus, “Norway’s Position Paper”;
Australian Government, “Australia’s Position”.
38	General Assembly, A/75/816, para. 56.

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4.3 Drafting a national position

6

Background resources and interpretation tools
Varied sources can be a useful resource to be consulted during the drafting process.
They may include the following:A.

Final and annual progress reports from United Nations multilateral processes,
such as the GGEs and the OEWGs, can be useful resources to trigger the development,
drafting and publishing of a position, and as a baseline to establish the timeline of these
efforts. In addition, all other relevant documents submitted to those processes (such as
working papers, non-papers, background documents and presentations) are also relevant
sources. Background documents from regional processes can also prove very useful forthe identification of relevant regional perspectives.

B. Academic literature and case law>

Academic literature can be a useful source for the understanding and interpretationof the rules and principles of international law. Further, some existing national
positions point to experts reports and studies, position papers by relevantinternational organizations and institutions (such as, for example, the International
Committee of the Red Cross), and academic projects as relevant reference material.39>

International case law, in particular from the International Court of Justice (ICJ),
was highlighted as useful and is indeed widely featured in a number of existing
national positions.40

C. Other national positions were referred to as useful inspiration when drafting a national
position.41
Some States note in their national positions that, in formulating their views, the starting point
was the traditional sources of international law as enshrined in Article 38 of the ICJ Statute.42
Many other normative instruments are referenced in the existing national positions, suchas the International Law Commission’s Articles on Responsibility of States for InternationallyWrongful Acts. Further, some national positions rely on treaty interpretation rules43 toascertain the applicability and relevance of the provision in cyberspace.44

39	See, for example, Czech Ministry of Foreign Affairs, “Position Paper”, p. 1; Costa Rican Ministry of Foreign Affairs,“Costa Rica’s Position”, para. 6; German Federal Government, “On the Application of International Law in Cyberspace”,
pp. 2, 16; Japanese Ministry of Foreign Affairs, “Basic Position”, p. 1; General Assembly, A/76/136, p. 18 (Brazil);
Egan, “International Law and Stability in Cyberspace”, p. 6.
40	For example, some of the most cited cases and advisory opinions of the ICJ in available national positions include,
among others, ICJ, “Nicaragua v. United States of America”; ICJ, “Democratic Republic of the Congo v. Uganda”;
ICJ, “Corfu Channel Case”; ICJ, “Legality of the Threat or Use of Nuclear Weapons”.
41	See all the publicly available national positions on UNIDIR’s Cyber Policy Portal, https://cyberpolicyportal.org.
42	Netherlands Government, “Appendix: International Law in Cyberspace”, p. 1; General Assembly, A/76/136, p. 18 (Brazil).
43	Notably, Article 31 of the Vienna Convention on the Law of the Treaties.
44	See, for example, Schöndorf, “Israel’s Perspective”, p. 397; German Federal Government, “On the Applicationof International Law in Cyberspace”, p. 16.

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7Collaborations and consultations
The interactive nature of the process has been highlighted by several States as very relevant.
Both internal and external collaboration is considered to be a good practice during the processof developing a national position.
A.

Inter-agency/departmental consultations assist with the identification of andengagement with all relevant stakeholders across the government in a regular dialogue
on contributions to the development of the national position and on building internal
coherence. An initial draft outline could be shared with the relevant stakeholders for initial
feedback and agreement on the scope and content; this can be followed by subsequent
periodic rounds of consultations. The usual agencies/departments involved in thedevelopment include the MFA, the MOD/DOD, the MOJ and the Attorney-General’s Office,and cybersecurity agencies, among others. Regular consultations with senior officials
could also facilitate later approval of the position.

B. Consultations/cooperation with other States in bilateral, regional or international settings
could also prove useful as highlighted by multilateral processes and some States in theirnational positions.45
C. Consultations on the draft position could be held with other stakeholders, both nationallyand internationally and including academia, the private sector and non-governmentalorganizations, among others. Some states expressly mention consultations with different
stakeholders in their national positions.46

45	See, for example, General Assembly, A/76/135, para. 72; Canadian Government, “International Law Applicable in
Cyberspace”, para. 53; Costa Rican Ministry of Foreign Affairs, “Costa Rica’s Position”, para. 6; Czech Ministryof Foreign Affairs, “Position Paper”, p. 1; Japanese Ministry of Foreign Affairs, “Basic Position”, p. 1; Netherlands
Government, “Appendix: International Law in Cyberspace”, p. 1; Wright, “Cyber and International Law”.
46	Canadian Government, “International Law Applicable in Cyberspace”, para. 53; Costa Rican Ministry of Foreign Affairs,“Costa Rica’s Position”, para. 6; Czech Ministry of Foreign Affairs, “Position Paper”, p. 1; General Assembly, A/76/136,
p. 30 (Estonia); Wright, “Cyber and International Law”.

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8General drafting principles
When drafting the national positions, States could consider the following principles:>

Accessibility:
National positions should be drafted using accessible language considering the target
audience and taking account of its wide dissemination.

>

Clarity:
Positions should be clear and assertive since ambiguity in the presentation of views
regarding certain rules can lead to misinterpretation. This does not mean that Statescannot highlight unsettled issues on which further study is needed to clarify theirinterpretation. The inclusion of key messages in each topic and the definition of specificterms can be highlighted as a good practice.

>

Include examples:
Linked to the point on clarity, a good practice to enhance the precision of the State’sviews and better illustrate the interpretation is to include practical examples of what
the application of certain international law rules would entail in practice. These can be
hypothetical or abstract examples.

4.4 Adoption, publication and dissemination

9

Adoption
The national position should be adopted or approved by a designated authority, following
the defined institutional process. As mentioned above, early clarity on which entity will adopt
and how has been highly recommended by some of the States that have already developed
a national position.
For example, some States opted to submit the position to the legislative power,47 while othernational positions needed to be adopted by a specific institution (for example, the Council of
Ministers).48

47	Netherlands Minister of Foreign Affairs, Letter. In the particular case of the Netherlands, the mandate to develop a national
position came directly from the Parliament. Thus, the MFA in conjunction with the MOD, the MOJ, and the Ministry of theInterior and Kingdom Relations addressed a letter to the Parliament to inform it about the position on international law incyberspace, annexing it as an appendix to the letter. In the case of Finland, for example, the State expressed the view thatthe content and rationale of the national position, which was prepared by the MFA in consultation with other relevant authorities, was submitted to the Foreign Relations Committee of the Parliament although not formally enacted by that organ.
48	See, for example, Polish Ministry of Foreign Affairs, “Republic of Poland’s Position”. In the case of Poland, on the initiativeof the MFA, the Council of Ministers adopted Poland’s position on the application of international law in cyberspace.

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10

Publication and dissemination
Some States participating in the workshop highlighted the importance of publishing thenational positions,49 which would indeed facilitate transparency and legal certainty.
Many States submitted their positions to the 2019–2021 GGE and so they were included in
the Official Compendium of voluntary national contributions on how international law applies
to the State use of ICTs.50
Some States organized special publication events or presented their positions during
academic conferences.51 Some released their positions through their official channels52(usually through the official website of the MFA53 or MOD).54 Some submitted their position
to the United Nations Office of Disarmament Affairs55 or directly to the OEWG.56 And somepublished the position in a law journal.57

49	Canadian Government, “International Law Applicable in Cyberspace”, para. 4; Musæus, “Norway’s Position Paper”,
among others.
50	General Assembly, A/76/136.
51	See, for example, Estonian President, “International Law Applies Also in Cyber Space”; United States Naval War College,“Disruptive Technologies”; Wright, “Cyber and International Law”; Braverman, “International Law in Future Frontiers”;
Koh, “International Law in Cyberspace”; Egan, “International Law and Stability in Cyberspace”; Ney, Remarks.
52	Australian Government, “Australia’s Position”; German Federal Government, “On the Application of International Law
in Cyberspace”; Netherlands Government, “Appendix: International Law in Cyberspace”, p. 1; Swedish Government
Offices, “Position Paper”.
53	See, for example, Canadian Government, “International Law Applicable in Cyberspace”; Chinese Ministry of Foreign
Affairs, “China’s Positions”; Costa Rican Ministry of Foreign Affairs, “Costa Rica’s Position”; Czech Ministry of Foreign
Affairs, “Position Paper”; Finnish Ministry for Foreign Affairs, “Finland Published its Positions”; Italian Ministry of Foreign
Affairs and International Cooperation, “Italian Position Paper”; Japanese Ministry of Foreign Affairs, “Basic Position”;
New Zealand Foreign Affairs & Trade, “The Application of International Law”, p. 4; Polish Ministry of Foreign Affairs,“Republic of Poland’s Position”; Swiss Federal Department of Foreign Affairs, “Switzerland’s Position Paper”.
54	French Ministry of Armed Forces, “International Law Applied to Operations in Cyberspace”.
55	Pakistan Mission to the United Nations, “Pakistan’s Position”.
56	Costa Rican Ministry of Foreign Affairs, “Costa Rica’s Position”; French Ministry of Armed Forces, “International Law
Applied to Operations in Cyberspace”.
57	Danish Government, “Denmark’s Position Paper”; Lehto, “Finland’s Views”; Schöndorf, “Israel’s Perspective”;
Musæus, “Norway’s Position Paper”; Engdahl, “Sweden’s Position Paper”.

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10

Publication and dissemination (cont.)
Moreover, States have also emphasized the need to invest in socializing the national positions
both internally and externally. Specifically, the following relevant good practices have beensuggested in order to extend the reach of the national position to different stakeholders:A.

Draft the national position using accessible language and content.

B. Develop a communication plan. Prepare an informal and accessible summary of theposition or other communication materials such as drafting a short blogpost explaining
its main content.
C. Organize briefings with different (national and international) stakeholders to present
the position and raise awareness across the different sectors.
D. Translate the national position into different languages (e.g., United Nations official
languages).
E.

Share and disseminate the national position in relevant international forums, such asat the multilateral processes or regional endeavours in the field of ICTs. In fact, theOEWG has repeatedly encouraged States to share their views.58

F.

The timing of the publication of the position can influence its reception by somestakeholders, in particular in the international arena. Considering the schedule of
the relevant multilateral processes could enhance the discussions on the position in
those forums.

58	General Assembly, A/76/135, para. 73.

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5 Conclusion
This compendium of good practices outlines the possible utility of a national position on the interpretation of international law in cyberspace, makes suggestions on the scope and content, andprovides examples of good practice in the process of developing a position. However, as indicatedin the workshop, States face several challenges related to the development of a position.
Capacity has been stressed as an issue by many of the States that had drafted a national positionand has been highlighted by the literature as one of the factors that can preclude some States fromdeveloping their positions.59 This includes the available legal, policy and technical capacity of States,
the different levels of understanding among the involved stakeholders, in addition to constraints interms of time and human and economic resources.
A lack of the necessary political will to develop a national position has also been stressed as a reason
for the limited number of States sharing their views on the application of international law in cyberspace.60 Having the political will from a high level of government can be decisive, not only for the final
adoption of the position, but also in the prioritization and allocation of sufficient resources to its development.
The highlighted utility of developing and sharing States’ views on the application of international law
in cyberspace can only be truly evidenced if an extended number of States with a well-balanced
geographical representation use their voices and substantively engage in the discussions. Therefore,
as already stressed by multilateral processes,61 as well as by regional organizations62 and States,63
there is a pressing need to raise awareness, build capacity as well as foster international cooperation
for an inclusive and meaningful conversation. It is worth noting that capacity-building and international
cooperation are pillars of the framework of responsible State behaviour in the use of ICTs developedin United Nations processes. This can include bilateral inter-State initiatives, regional or international
capacity-building efforts, and engagement with multiple stakeholders, including internationalorganizations, civil society, academia and the private sector.64
This compendium aims at assisting these efforts by systematizing good practices into a usefulframework that could ease the decision to develop a national position and the process of drafting it.

59	See, for example, Hollis, “A Brief Primer”.
60
OAS, “Improving Transparency”, para. 21.
61
General Assembly, A/75/816, paras 37–39.
62
African Union, PSC/PR/COMM.1196 (2024), para. 8; OAS, “Improving Transparency”, para. 13.
63	Costa Rican Ministry of Foreign Affairs, “Costa Rica’s Position”, para. 5; Canadian Government, “International Law
Applicable in Cyberspace”, para. 6; Pakistan Mission to the United Nations, “Pakistan’s Position”, paras 20–21;
General Assembly, A/76/136, p. 53 (Kenya).
64
African Union, PSC/PR/COMM.1196 (2024), para. 8.

C O N C LU S I O N

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