Countermeasures

== Definition ==
Countermeasures
Countermeasures are “measures that would otherwise be contrary to the international obligations of an injured State vis-à-vis the responsible State, if they were not taken by the former in response to an internationally wrongful act by the latter in order to procure cessation and reparation”.ILC Articles on State Responsibility, Commentary, part 3 ch 2 at para 1. Several States, including Australia,Australian Government, Australia's position on how international law applies to State conduct in cyberspace (2020). Austria,Austria, Pre-Draft Report of the OEWG - ICT: Comments by Austria (31 March 2020), stating that ‘a violation of the principle of State sovereignty constitutes an internationally wrongful act – if attributable to a State – for which a target State may seek reparation under the law of State responsibility. A target State may also react through proportionate countermeasures.’ (emphasis added). Canada,Government of Canada, International Law applicable in cyberspace (April 2022) para 34. Estonia,Estonia, ‘President of the Republic at the opening of CyCon 2019’ (29 May 2019), stating that “states have the right to react to malicious cyber operations, including using diplomatic response but also countermeasures” France,French Ministry of the Armies, ‘International Law Applied to Operations in Cyberspace’ (9 September 2019) 6, stating that ‘In response to a cyberattack, France may consider diplomatic responses to certain incidents, countermeasures, or even coercive action by the armed forces if an attack constitutes armed aggression.’ Germany,Germany, ‘Statement by Ambassador Dr Thomas Fitschen, Director for the United Nations, Cyber Foreign Policy and Counter-Terrorism, Federal Foreign Office of Germany’ (November 2018) 3, stating that ‘in case of a cyber operation that is in breach of an international legal obligation below the level of the use or threat of force prohibited by Art. 2 (IV) [of the UN Charter] States are also entitled to take countermeasures as allowed by international law.’ Italy,Italian Ministry for Foreign Affairs and International Cooperation, 'Italian position paper on "International law and cyberspace"' (2021) 7-8. Japan,Japan, ‘Japan’s Position Paper for the Report of the United Nations Open-Ended Working Group on “Developments in the Field of Information and Telecommunications in the Context of International Security”’ (undated), stating that ‘Japan recognizes that basic rules on State responsibility including those on countermeasures applies to cyberspace.’ the Netherlands,Dutch Ministry of Foreign Affairs, ‘Letter to the parliament on the international legal order in cyberspace’ (5 July 2019) 7. New Zealand,New Zealand Foreign Affairs and Trade, The Application of International Law to State Activity in Cyberspace (1 December 2020) 3-4. Norway,Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 72-73. Singapore,Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 84. Sweden,Government Offices of Sweden, Position Paper on the Application of International Law in Cyberspace (July 2022) 6. the United Kingdom,United Kingdom, ‘Statement on Other Disarmament Measures and International Security to the 72nd UNGA First Committee’ (23 October 2017), stating that ‘We reaffirm that the law of state responsibility applies to cyber operations in peacetime, including the availability of the doctrine of countermeasures in response to internationally wrongful acts.’ and the United States,Brian J. Egan, ‘Remarks on International Law and Stability in Cyberspace’ (10 November 2016), stating that countermeasures are available ‘to address malicious cyber activity’ if that activity amounts to a prior internationally wrongful act attributable to another State. have expressly confirmed the applicability of the law of countermeasures to cyber operations. Others, including Brazil,Brazil, ‘Open-ended Working Group on developments in the field of information and telecommunications in the context of international security: Second Substantive Session - New York, 11 February 2020: Statement by the Delegation of Brazil’ (11 February 2020), stating that ‘In the case of malicious acts in cyberspace, it is often difficult to attribute responsibility to a particular State or actor with unqualified certainty. A decision to resort to countermeasures in response to such acts carries a high risk of targeting innocent actors, and of triggering escalation.’ China,China, ‘Statement by the Chinese Delegation at the Thematic Debate of the First Committee of the 72th UNGA’ (October 2017), stating that ‘Countries should discuss application of international law in the manner conducive to maintain peace, avoid introducing force, deterrence and countermeasures into cyberspace, so as to prevent arms race in cyberspace and reduce risks of confrontation and conflicts.’ and Cuba,Cuba, ‘Declaration by Miguel Rodríguez, Representative of Cuba, at the Final Session of Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security’ (23 June 2017), registering ‘serious concern over the pretension of some, reflected in para 34 of the draft final report, to convert cyberspace into a theater of military operations and to legitimize, in that context, unilateral punitive force actions, including the application of sanctions and even military action by States claiming to be victims of illicit uses of ICTs.’ (emphasis added). have expressed caution in this regard. Countermeasures should be distinguished from retorsions, which are unfriendly but lawful acts by the aggrieved party against the wrongdoer.
As a matter of general international law, an injured State may only take countermeasures against the responsible State if the following conditions are met:
# The existence of a prior internationally wrongful act of the responsible State against the injured State.ILC Articles on State Responsibility, Art 49 para 1; Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) 1997 ICJ Rep 7, para 83. If that act consists of a cyber operation, this means that the operation must have been amounted to a breach of the obligations of the responsible State that is attributable to that State;
# The injured State has called uponILC Articles on State Responsibility, Art 52 para 1 subpara a). According to the UK Attorney General, the UK does not feel legally obliged, when taking countermeasures in response to a covert cyber intrusion, to “give prior notification to the hostile state”. UK Attorney General, Jeremy Wright QC MP, ‘Cyber and International Law in the 21st Century’. the responsible State to fulfil its obligations arising from its internationally wrongful act;ILC Articles on State Responsibility, Art 28-41; the list of consequences includes (i) continued duty of performance, (ii) cessation and non-repetition, (iii) reparation, and (iv) particular consequences of a serious breach of obligations under peremptory norms of general international law. and
# The injured State has notified the responsible State of its decision to take countermeasures, and offered to negotiate with that State, unless it is taking “urgent countermeasures as are necessary to preserve its rights.”ILC Articles on State Responsibility, Art 52 para 1 subpara b) – Art 52 para 2. Some States, such as Canada,Government of Canada, International Law applicable in cyberspace (April 2022). Israel,Roy Schöndorf, Israel’s Perspective on Key Legal and Practical Issues Concerning the Application of International Law to Cyber Operations (8 December 2020). Norway,Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 72-73. the United KingdomUK Attorney General, Jeremy Wright QC MP, ‘Cyber and International Law in the 21st Century’ (2018); United Kingdom Foreign, Commonwealth & Development Office, Application of international law to states’ conduct in cyberspace: UK statement (3 June 2021). and the United StatesHon Paul C Ney, Jr., DOD General Counsel Remarks at U.S. Cyber Command Legal Conference (2 March 2020). have advocated for a particular approach to the notification requirement in the cyber realm, in particular to preserve the effectiveness of the measures and/or to avoid exposing sensitive capabilities of the responding State.See also Tallinn Manual 2.0, commentary to rule 21, paras 10–12.
Additionally, the countermeasures must fulfil the following requirements:
# Their aim must be to induce the responsible State to comply with the legal consequences of its internationally wrongful act;ILC Articles on State Responsibility, Art 49(1); Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) 1997 ICJ Rep 7, para 87. The list of consequences in Art 28-41 includes (i) continued duty of performance, (ii) cessation and non-repetition, (iii) reparation, and (iv) particular consequences of a serious breach of obligations under peremptory norms of general international law. hence, the aim of countermeasures is restoration, not retribution or retaliation; and the countermeasures can only target the responsible State;
# They “shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question”;ILC Articles on State Responsibility, Art 49(3).
# They shall not affect the obligation to refrain from the threat or use of force,The position of the ILC has been followed by States in their national positions, including Australia, Brazil, Canada, Finland, France, Italy, the Netherlands, New Zealand, Norway, Russia, Sweden, Switzerland and the UK. For an alternative view on “forcible countermeasures” see Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment, I.C.J. Reports 2003, 16, Separate Opinion of Judge Simma [12 and ff]. obligations for the protection of fundamental human rights, of a humanitarian character prohibiting reprisals, or other “obligations under peremptory norms of general international law”;ILC Articles on State Responsibility, Art 50(1). obligations under any dispute settlement procedure between the injured and responsible State, and obligations arising from the inviolability of diplomatic or consular agents, premises, archives and documents;ILC Articles on State Responsibility, Art 50(2). and
# They must be “commensurate with the injury suffered, taking into account the gravity” of the prior unlawful act and of the rights in question (i.e. the “proportionality” requirement).Articles on State Responsibility, Art 51; Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (Judgment) 1997 ICJ Rep 7, para 85. However, proportionality does not require that the adopted measures must be equivalent, reciprocal or even in kind.See ILC Articles on State Responsibility, part 3, para 5; see also Tallinn Manual 2.0, commentary to rule 23, para 7. As clearly expressesd by many States, including Canada,Government of Canada, International Law applicable in cyberspace (April 2022). Germany,Federal Government of Germany, ‘On the Application of International Law in Cyberspace’, Position Paper (March 2021) 13-14. Italy,Italian Ministry for Foreign Affairs and International Cooperation, ‘Italian position paper on "International law and cyberspace"’ (2021) 7-8. Japan,Ministry of Foreign Affairs of Japan, Basic Position of the Government of Japan on International Law Applicable to Cyber Operations (16 June 2021) 4-5. Norway,Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 72-73. Sweden,Government Offices of Sweden, Position Paper on the Application of International Law in Cyberspace (July 2022) 6. Switzerland,Federal Department of Foreign Affairs, ‘Switzerland's position paper on the application of international law in cyberspace’ (May 2021) 6-7. the United KingdomAttorney General Jeremy Wright, Cyber and International Law in the 21st Century (23 May 2018); Attorney General Suella Braverman, International Law in Future Frontiers (19 May 2022). and the United States,Brian J Egan, International Law and Stability in Cyberspace (10 November 2016) 21-22; Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 142. countermeasures against cyber operations can be non-cyber in nature, and cyber countermeasures may be adopted in response to non-cyber wrongful acts. 
Countermeasures are temporary in nature. In case the original internationally wrongful act has ceased, and the dispute is submitted in good faith to a court or tribunal with the authority to make decisions binding on the parties, countermeasures may not be taken and if already taken, must be suspended,ILC Articles on State Responsibility, Art 52(3). except if the responsible State fails to implement the dispute settlement procedures in good faith.ILC Articles on State Responsibility, Art 52(4). Countermeasures must also be terminated as soon as the responsible State has complied with its (secondary) obligations.ILC Articles on State Responsibility, Art 53.
There is an ongoing debate as to whether States that have not themselves been directly injured by an unlawful cyber operation may engage in countermeasures in support of the injured State (sometimes referred to as "collective countermeasures").ILC Articles on State Responsibility, Art 54. In the cyber context, scholarship supportive of notion of collective countermeasures includes Michael N Schmitt, ‘Estonia Speaks Out on Key Rules for Cyberspace’ (Just Security, 10 June 2019), considering the Estonian interpretation to be “an advantageous development in the catalogue of response options that international law provides to deal with unlawful acts”; see also Michael N Schmitt and Sean Watts, ‘Collective Cyber Countermeasures?’ (2021) 12 Harvard National Security Journal 373. Conversely, scholarship that has rejected this notion includes Jeff Kosseff, ‘Collective Countermeasures in Cyberspace’ (2020) 10(1) Notre Dame Journal of International & Comparative Law 18, 34; François Delerue, Cyber Operations and International Law (CUP 2020), 457. In particular, Estonia has opined that non-injured States “may apply countermeasures to support the state directly affected by the malicious cyber operation”,President of Estonia, Kersti Kaljulaid, ‘President of the Republic at the opening of CyCon 2019’ (29.05.2019); see also Official compendium of voluntary national contributions on the subject of how international law applies to the use of information and communications technologies by States, UNODA, A/76/136 (August 2021) 28. a view that has also received some support from New Zealand. New Zealand Foreing Affairs and Trade, The Application of International Law to State Activity in Cyberspace (1 December 2020) 3-4. This would apply where diplomatic action is insufficient, but no lawful recourse to use of force exists. This interpretation would allow States to offer active assistance to other States, which may not possess sufficient cyber capabilities themselves to counter an ongoing unlawful cyber operation, or otherwise deter the responsible State with other non-cyber countermeasures.Michael Schmitt, Three International Law Rules for Responding Effectively to Hostile Cyber Operations (Just Security, 31 July 2021) However, this view has since been rejected by at least one State (France),French Ministry of the Armies, International Law Applied to Operations in Cyberspace (9 September 2019) 10, arguing that collective countermeasures are not authorised under international law. while others, such as Canada, do not yet consider there to be “sufficient State practice or opinio juris to conclude that [collective countermeasures] are permitted under international law”.Government of Canada, International Law applicable in cyberspace (April 2022) para 37. Therefore, it has to be regarded as a call for progressive development of international law, rather than a statement of the current state of international law.
Whether a particular measure fulfils these conditions is an objective question,ILC Articles on State Responsibility, Commentary in Part 3, Chapter 2 on Art 49, para 3. while the burden of proof that the relevant conditions have been fulfilled falls on the injured State.ILC Articles on State Responsibility, Commentary to Part One, Chapter 5, para 8 (noting that “[i]n a bilateral dispute over State responsibility, the onus of establishing responsibility lies in principle on the claimant State”). The exact standard of proof required is unsettled in international law and it will depend on the relevant forum. However, relevant international jurisprudence tends to rely on the standard of “clear and convincing evidence”.See, eg, Trail Smelter case (United States v Canada) (Award) 1941 3 RIAA 1905, 1965; see also Robin Geiss and Henning Lahmann, ‘Freedom and Security in Cyberspace: Shifting the Focus Away from Military Responses Towards Non-Forcible Countermeasures and Collective Threat-Prevention’ in Katharina Ziolkowski (ed), Peacetime Regime for State Activities in Cyberspace (NATO CCD COE 2013) 624 (noting that in cases where State responsibility is involved, the required threshold tends to shift towards ‘clear and convincing’”). This standard translates in practice into a duty to “convince the arbiter in question that it is substantially more likely than not that the factual claims that have been made are true”.James Green, ‘Fluctuating Evidentiary Standards for Self-Defence in the International Court of Justice’ (2009) 58 ICLQ 163, 167 (emphasis original). Importantly, if a State does resort to countermeasures on the basis of an unfounded assessment that a breach has occurred, it may incur in international responsibility for its own wrongful conduct.ILC Articles on State Responsibility, Commentary in Part 3, Chapter 2 on Art 49 para 3.
Publicly available common and national positions that address this issue include:
 (2024),
 (2020),
 (2024), 
 (2021),
 (2022),
 (2023),
 (2024), 
 (2023),
 (2019), 
 (2021), 
 (2020), 
 (2019), 
 (2021), 
 (2023),
 (2020),
 (2021),
 (2021), 
 (2019), 
 (2020), 
 (2021),
 (2022),
 (2021), 
 (2021), 
 (2021),
 (2022), 
 (2021), 
 (2018), 
 (2021),
 (2022), 
 (2016), 
 (2020),
 (2021).
==Common positions==
===European Union (2024)===
==National positions==
===Australia (2020)===
===Austria (2024)===
===Brazil (2021)===
===Canada (2022)===
===Costa Rica (2023)===
===Czech Republic (2024)===
===Denmark (2023)===
===Estonia (2019)===
===Estonia (2021)===
===Finland (2020)===
===France (2019)===
===Germany (2021)===
===Ireland (2023)===
===Israel (2020)===
===Italy (2021)===
===Japan (2021)===
===Netherlands (2019)===
===New Zealand (2020)===
===Norway (2021)===
===Poland (2022)===
===Romania (2021)===
===Russia (2021)===
===Singapore (2021)===
===Sweden (2022)===
===Switzerland (2021)===
===United Kingdom (2018)===
===United Kingdom (2021)===
===United Kingdom (2022)===
===United States (2016)===
===United States (2020)===
===United States (2021)===
== Appendixes ==
=== See also ===
* Retorsion
* Scenario 04: A State’s failure to assist an international organization
* Scenario 05: State investigates and responds to cyber operations against private actors in its territory
* Scenario 06: Cyber countermeasures against an enabling State
* Scenario 09: Economic cyber espionage
* Scenario 14: Ransomware campaign
* Scenario 16: Cyber attacks against ships on the high seas
* Scenario 17: Collective responses to cyber operations
* Scenario 21: Misattribution caused by deception
=== Notes and references ===
=== Bibliography and further reading ===
Category:Countermeasures
Category:Legal concepts