EU Statement – Open-Ended Working Group on ICT: International Law

1. I have the honour to speak on behalf of the European Union and its Member States.

2. The Candidate Countries North Macedonia*, Montenegro^*, Serbia^*, Albania, Ukraine, the Republic of Moldova and Bosnia and Herzegovina^* and Georgia, and the EFTA country Norway, member of the European Economic Area, as well as San Marino align themselves with this statement.
3. Chair, please allow me to start with the good news: I am delighted to announce that the EU and its Member States have published a Declaration on a common understanding of the application of international law to cyberspace.
4. With this common understanding, we reiterate that international law, including international human rights law and international humanitarian law, is fit for purpose in this digital age.
5. With this declaration, we show that it is possible to reach an understanding on a set of fundamental principles and rules of international law applicable to cyberspace, including State sovereignty, the principle of non-intervention, due diligence, the prohibition on the use of force, and the compliance with the rules of international humanitarian law, international human rights law, the law of State responsibility and lawful State responses.
6. Here, I would like to reiterate, and underscore, that recognising the applicability of international humanitarian law to cyberspace does not lead to or encourage the militarization of cyberspace, nor does it legitimise cyber warfare.
7. We see that, with every published national, regional or international position and common understanding on the application of international law to cyberspace, we make progress towards a truly common and global baseline of understanding. The Declaration by the EU and its Member States should also be seen in that vein and we would welcome further acknowledgement of the importance of regional views on the application of international law in cyberspace in the final report of this OEWG.
8. Now, please allow me reflect on our discussions on international law in the OEWG outcome reports.
9. While we are pleased that a growing number of states now participate in the discussions on international law, we see at the same time that we have not managed to reflect the rich discussions and large number of interventions thereon, in particular with regards to the application of international humanitarian law, international human rights law, and the law of State responsibility in cyberspace in our last Annual Progress Reports (APR). We consider it of utmost importance that in the time remaining we appropriately carry out the Group’s mandate and work towards a robust articulation in the OEWG final report of the shared views on how international law applies in the cyber context.
10. Throughout the work of this OEWG, a plethora of states have emphasized the need to respect and protect human rights and fundamental freedoms, and the application of IHL, in cyberspace. In addition to individual statements, the working papers on IHL submitted by a cross regional group of 13 states, as well as the cross-regional working paper by Colombia, El Salvador, Uruguay, Australia and Estonia that proposed specific text for this year's APR, demonstrate the broad appetite that exists across all regions to focus on the applicability of international law in cyberspace in the progress reports.
11. In that respect, the EU reiterates that international humanitarian law applies to operations in cyberspace, in the same way as it does to operations by any other means, conducted in the context of armed conflict, be it an international or non-international armed conflict. This includes the prohibition on using ICTs to direct attacks against civilians and civilian objects, including critical civilian infrastructure.
12. Chair, colleagues, this year marks the 75th anniversary of the four Geneva Conventions of 1949, the cornerstone of international humanitarian law. The fact that all States have accepted to follow and are bound by the rules set out by the four Geneva Conventions demonstrates the universal values embodied by international humanitarian law. It is essential that the Geneva Conventions and other relevant sources of IHL are upheld in this digital domain. Adherence to these rules and principles ensures that civilians and civilian objects, medical units and personnel, and humanitarian personnel and objects, enjoy the same protection during armed conflicts disregarding from where threats originate: the physical or virtual domain.
13. Chair, we need to ensure that the rich discussions about and the many voices raising the application of IHL in the cyber domain in the context of armed conflicts are accurately reflected in the OEWG’s reports. The final report should recognize the work done, and include a clear reference to IHL’s applicability in the cyber context. Acknowledgement in the reports of the OEWG that IHL applies in cyberspace does not preclude recognition that further study on how international humanitarian law applies to ICT operations in situations of armed conflict is needed. The EU recommends that the OEWG final report adopt an action-oriented approach whereby it acknowledges that IHL applies and that many states discussed how IHL applies to cyber operations executed in the context of, and in relation to, armed conflict, and that they made concrete proposals to engage in further discussions on this matter.
14. Adding to our disappointment is the omittance of references to scenario-based exercises by academic and research institutions from the last APR, which contribute to the development of shared understandings of the application of international law. We have found the exercises organised by UNIDIR to be a very inclusive and constructive contribution to our discussions and recall that many delegations recalled their usefulness in the course of the deliberations of the OEWG.
15. We remain of the view that giving due consideration to the legal framework we already have in place, should be our priority. Existence of different, even contradictory, legal opinions does not imply a lack of applicable legal framework. After all, states present different interpretations of rules and principles not only in the cyberspace context but also in many other fields of international law.
16. This includes accurately reflecting the weight of discussions in the room. Unfortunately, in this OEWG process thus far, equal weight has been given to some proposals that are supported by just a few states as to those proposals that have garnered much broader support. If we are to reach common understandings, proposals that command almost universal support should be duly acknowledged and reflected in the products of the working group
17. Several important developments have been gaining momentum over the course of the OEWG’s mandate, such as the sharing of national views on how international law applies to cyberspace, as well as support for a permanent action oriented mechanism, the Programme of Action. In particular, the approach to a future permanent mechanism outlined by the PoA would draw on the valuable discussions from each of the OEWG’s pillars and develop them into practical, cross-cutting work streams that could ensure we tackle the actual challenges we face in cyberspace, and support meaningful implementation of the framework in direct relation to these challenges. It is only by learning from our collective implementation of the framework that we will be able to assess whether any gaps in the framework exist.
18. Thank you.

* North Macedonia, Montenegro and Bosnia and Herzegovina continue to be part of the Stabilisation and Association Process.