Application of the Due Diligence Principle to Cyber Operations

The discreet use of proxies by States renders it difficult to prove attribution to States under the existing rules of attribution. On the other hand, the due diligence principle, if applicable, does not require attribution but can lead to the invocation of State responsibility for cyber operations emanating from the territory of other States. In the Corfu Channel judgment the ICJ recognized “every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States,” and UN Member States agreed that existing international law applies to cyber operations. However, the UN Members have not yet agreed on whether the due diligence obligation applies to cyber operations. Considering jurisprudence relating to the concept of due diligence, it seems natural that (1) the due diligence principle imposes obligations proportionate to the seriousness of the risk, and that (2) the capacity to influence the perpetrator of acts contrary to the rights of other States entails an obligation to use it for stopping such acts. If these two elements are applied to cyber operations, the due diligence obligation seems likely to include a State’s obligation to use its existing influence over the activities of a person or group of persons, when the person or the group of persons is involved in cyber operations that emanate from its territory and seriously infringe upon other States’ rights and the State knows or should know the existence of the operations. The applicability and scope of the due diligence principle should be discussed further among States and scholars

Attribution of Cyber Operations: An International Law Perspective on the Park Jin Hyok Case

This is the author accepted manuscript. The final version is available from Edward Elgar Publishing via the DOI in this recordStates are increasingly willing to publicly attribute hostile cyber operations to other States. Sooner or later, such claims will be tested before an international tribunal against the applicable international law. When that happens, clear guidance will be needed on the methodological, procedural, and substantive aspects of attribution of cyber operations from the perspective of international law. This article examines a recent high-profile case brought by the United States authorities against Mr Park Jin Hyok, an alleged North Korean hacker, to provide such analysis. The article begins by introducing the case against Mr Park and the key aspects of the evidence adduced against him. It then considers whether the publicly available evidence, assuming its accuracy, would in principle suffice to attribute the alleged conduct to North Korea. In the next step, this evidence is analysed from the perspective of the international jurisprudence on the standard of proof and on the probative value of indirect or circumstantial evidence. This analysis reveals the need for objective impartial assessment of the available evidence and the article thus continues by considering possible international attribution mechanisms. Before concluding, the article considers whether the principle of due diligence may provide an alternative pathway to international responsibility, thus mitigating the deficiencies of the existing attribution law. The final section then highlights the overarching lessons learned from the Park case for the attribution of cyber operations under international law, focussing particularly on States’ potential to make cyberspace a more stable and secure domain through the interpretation and development of the law in this area

Women, the State, and War:Understanding Issue of the “Comfort Women”(continued from the previous issue)

本稿は、なぜ日本が第2次世界大戦中に「従軍慰安婦J制度を創設し、女性の身体を探閲したのかという聞いに答えを投げかけることを目的とする。この論文では、まず先の戦争は軍部の独走によるものといった、今日の日本人が一般的に信じている戦争の原因説明によらず、「従軍慰安婦」創設の説明を個人的要因および国家の構造と国家により信奉されていたイデオロギーなどに求める。さらに、当時日本政府のおかれていた国際的状況も勘案する。すなわち本稿では「従軍慰安婦」問題に対し、日本政治および政策決定における多様な側面を検証するアプローチをとる。本稿のまず第一部では、当時社会全体に信じられていた「おとこらしさ」の神話について述べ、次に国家の構造と国家内の支配的イデオロギーについて説明し、最後に国際環境がどう「従軍慰安婦」問題に影響したかを分析する