Statement by Mr. AKAHORI Takeshi, Ambassador for United Nations Affairs and Cyber Policy of the Ministry of Foreign Affairs of Japan, on the occasion of the third substantive session of the OEWG on ICTs
2021/3/9
I mentioned yesterday that we owe it to the multi-stakeholders to produce a report which makes meaningful progress. I have received several comments on the section of international law basically saying that the conclusions are not satisfactory.
There are many important findings on how international law applies that Japan would strongly prefer to see in the agreed conclusions and recommendations section of the report. These include State responsibility for internationally wrongful acts, the inherent right of self-defense recognized in the UN Charter, and international humanitarian law. In the last informal meeting, I asked that the relevant paragraphs now in the discussions section be put back in the conclusions section. With more time to discuss, we could engage in crafting a text on the basis of paragraph 28 of the 2015 GGE report which “offers non-exhaustive views on how international law applies to the use of ICTs by States.” There are six important sub-paragraphs.
Japan therefore strongly supports the US amendments to paragraph 24 to add language on self-defense, to add a sentence on the principles of humanity, necessity, proportionality and distinction and to change the start of the paragraph to read “Specific principles of international law including the UN Charter”. These are minimum changes to fairly reflect important conclusions from past GGE reports.
International law provides tools for the victim State to use when a cyberattack occurs. What State would not use the law of State responsibility to demand reparation for an internationally wrongful act even in the ICT context? Japan asks that at least the relevant subparagraphs on State responsibility from the 2015 GGE report be added to our report. Japan is against including language on a new legally binding instrument. Having said that, I would like to ask those who ask for a new legally binding instrument: what happens when a State acts against a legal obligation established by that instrument? Would you not seek responsibility and ask for reparation? Claiming that international customary law on State responsibility is not applicable to acts of States using ICT is the equivalent of saying that internationally wrongful acts will not have consequences in cyberspace. Then what is the use of negotiating a new treaty?
An eventual perpetrator will have to consider that it may face legal and political consequences if it conducts a malicious act, that in the most intense case, a cyberattack may constitute an armed attack and may be met with the exercise of self-defense.
Under international law, exercise of self-defense must meet the conditions of necessity and proportionality. Thus, deepening understanding on how international law is applicable to use of ICTs will contribute to preventing illegal acts using ICTs and improve cybersecurity.
Japan also supports the inclusion of the words “in its entirety” after “the Charter of the United Nations” in paragraph 23. Japan also supports US proposal to amend the first sentence paragraph 23 to use the word “reaffirm”.
Please allow me to comment on the discussions section, in order not to ask for the floor again today. Japan is ready to continue discussions on that section. However, if achieving a consensus this week is impossible, Japan can support the compilation of a Chair’s summary. In that case, Japan asks for a sentence to be included in the body of the report itself making clear that the Chair’s summary was compiled by the Chair and “may not fully reflect the positions and contributions by the delegations”. Otherwise, a thorough negotiation would be needed even on the appropriate distinction between “States expressed” or “Some States expressed”.
I thank you.
There are many important findings on how international law applies that Japan would strongly prefer to see in the agreed conclusions and recommendations section of the report. These include State responsibility for internationally wrongful acts, the inherent right of self-defense recognized in the UN Charter, and international humanitarian law. In the last informal meeting, I asked that the relevant paragraphs now in the discussions section be put back in the conclusions section. With more time to discuss, we could engage in crafting a text on the basis of paragraph 28 of the 2015 GGE report which “offers non-exhaustive views on how international law applies to the use of ICTs by States.” There are six important sub-paragraphs.
Japan therefore strongly supports the US amendments to paragraph 24 to add language on self-defense, to add a sentence on the principles of humanity, necessity, proportionality and distinction and to change the start of the paragraph to read “Specific principles of international law including the UN Charter”. These are minimum changes to fairly reflect important conclusions from past GGE reports.
International law provides tools for the victim State to use when a cyberattack occurs. What State would not use the law of State responsibility to demand reparation for an internationally wrongful act even in the ICT context? Japan asks that at least the relevant subparagraphs on State responsibility from the 2015 GGE report be added to our report. Japan is against including language on a new legally binding instrument. Having said that, I would like to ask those who ask for a new legally binding instrument: what happens when a State acts against a legal obligation established by that instrument? Would you not seek responsibility and ask for reparation? Claiming that international customary law on State responsibility is not applicable to acts of States using ICT is the equivalent of saying that internationally wrongful acts will not have consequences in cyberspace. Then what is the use of negotiating a new treaty?
An eventual perpetrator will have to consider that it may face legal and political consequences if it conducts a malicious act, that in the most intense case, a cyberattack may constitute an armed attack and may be met with the exercise of self-defense.
Under international law, exercise of self-defense must meet the conditions of necessity and proportionality. Thus, deepening understanding on how international law is applicable to use of ICTs will contribute to preventing illegal acts using ICTs and improve cybersecurity.
Japan also supports the inclusion of the words “in its entirety” after “the Charter of the United Nations” in paragraph 23. Japan also supports US proposal to amend the first sentence paragraph 23 to use the word “reaffirm”.
Please allow me to comment on the discussions section, in order not to ask for the floor again today. Japan is ready to continue discussions on that section. However, if achieving a consensus this week is impossible, Japan can support the compilation of a Chair’s summary. In that case, Japan asks for a sentence to be included in the body of the report itself making clear that the Chair’s summary was compiled by the Chair and “may not fully reflect the positions and contributions by the delegations”. Otherwise, a thorough negotiation would be needed even on the appropriate distinction between “States expressed” or “Some States expressed”.
I thank you.