Expressly confirmed in the 2015 GGE Report that was subsequently endorsed by the General Assembly, all states that have issued statements on international law in cyberspace have endorsed this position. That Article 2(4) of the UN Charter and customary law’s prohibition on the use of force applies to cyber operations is today beyond dispute. It considers those topics that New Zealand considered to be sufficiently significant to be included: use of force, intervention, sovereignty, due diligence, responses to hostile cyber operations (countermeasures), international humanitarian law, and international human rights law. This article puts a critical eye on the statement from the legal perspective. Statements by a Five-Eyes state can sometimes shed light on the attitudes of the group, at least with respect to positions they are willing to tolerate among close allies. And the fact that New Zealand is one of the so-called “Five-Eyes” (with Australia, Canada, United Kingdom and United States) cannot be ignored, for these states, which as a group are highly cyber-capable, cooperate and collaborate closely in security affairs. Its formal release by MFAT will yield greater influence during those proceedings than oral statements or written submissions standing alone. New Zealand’s statement comes as the UN Group of Governmental Experts and Open-Ended Working Group are underway. Most importantly, it addresses a number of controversial issues that are occupying international discourse, including the topics of sovereignty and collective countermeasures.
New Zealand’s statement is important for several reasons.
Last week, with the Ministry of Foreign Affairs and Trade’s (MFAT) release of its position, New Zealand joined the growing list of states that have publicly set forth their views on how international law applies in the cyber context. As claims that cyberspace is a normative Wild West fade, the task at hand for the international community is to identify and interpret the rules of international law that govern cyber operations.
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