The Oxford Statement on International Law Protections in Cyberspace: The Regulation of Information Operations and Activities

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The Internet has allowed the dissemination of content across the globe in a matter of seconds. Recommendation algorithms, found in social media platforms and search engines, have also dangerously amplified the reach of false, misleading, and violent content (see here, here, and here). Because they are geared towards engagement, the same algorithms have given rise to online ‘echo chambers’, whereby users are fed with the same types of viral content over and over, based on their previous clicks and assumed or stated preferences. The architecture of the Internet and the design of these algorithms have been exploited by States and non-State actors alike to sow division, spread hatred, and undermine public trust in governments and other institutions worldwide.

Recent examples abound. Violence against the Rohingya in Myanmar was spurred in large part thanks to the unrestrained and amplified dissemination of hate speech on Facebook. Foreign and domestic electoral dis- and misinformation, coupled with xenophobic discourse in the United States has polarised an already divided country, unfolding in the recent Capitol riots. And if electoral chaos, racial discrimination, and the COVID-19 pandemic weren’t enough, populist leaders around the globe have spread or bolstered viral disinformation about COVID-19 and its treatment. All this activity has caused significant harm – physical and non-physical – to individuals, private entities and States.  

However,  existing international legal rules and principles (whether general or belonging to specific regimes) apply to information operations and activities, online and offline. That international law and the United Nations (UN) Charter, in particular, apply to ICTs has been recognised by all UN Member States, most recently through the work of the Open-ended working group on developments in the field of information and telecommunications in the context of international security (see A/AC.290/2021/CRP.2, paras 7 and 34). But the question remains as to how exactly the relevant international legal rules and principles apply in this context.

In the hope of getting some answers, the Oxford Institute for Ethics Law and Armed Conflict (ELAC) once again convened different stakeholders in the ‘Oxford Process on International Law Protections in Cyberspace’. While previous Oxford Process convenings and outputs dealt with malicious cyber operations against the healthcare sector, safeguarding vaccine research and development, and foreign cyber electoral interference, this time, discussions focussed on the international regulation of ‘information operations and activities’. These include disinformation, misinformation, hate speech, and other speech acts that cause physical or non-physical harm to individuals, States, and private entities – all of which are, in one way or another, governed by international law.

In the spirit of earlier iterations of the Oxford Process, participants sought to reach the widest possible degree of consensus around how international law applies to such information operations and activities. With invaluable input from participants, we produced a Statement that seeks to reflect agreement over the substance of existing international law protections, under treaty or customary international law, applying to information operations and activities. Reflecting growing consensus, the Oxford Statement on International Law Protections in Cyberspace: The Regulation of Information Operations and Activities  refers to both positive and negative obligations of States in their foreign and domestic behaviour pursuant to key principles and rules of international law – such as sovereignty, non-intervention, international human rights law and international humanitarian law.  

We are pleased that, to date, more than 100 of the globe’s most prominent international lawyers have signed onto this Fourth Oxford Statement.  In doing so, we hope to continue the conversation around how international law applies to ICTs. But most importantly, we wish to see changes in behaviour by States, individuals and firms. Specifically, States and non-State actors have an international legal obligation to stop using the Internet and other ICTs to incite specific divisions, hatred, violence, and ultimately harm. We want—and need—States and companies to take responsibility to protect the information ecosystem from the most malicious and harmful uses that information operations produce.

The Statement and its current signatories are reproduced below. International lawyers who wish to append their name to the statement are invited to express their interest via email to oxfordcyberstatement {at} gmail(.)com

 

The Oxford Statement on International Law Protections in Cyberspace: The Regulation of Information Operations and Activities

Reiterating the commitment expressed in the First, Second and Third Oxford Statements to clarify rules of international law applicable in the use of information and communication technologies;

Considering that information operations and activities conducted by States or non-State actors through information and communications technologies have the  potential to cause harm to both States and individuals, in light of their ability to reach a very wide audience instantly as exemplified by false claims surrounding COVID-19 treatments, vaccines, masks and social distancing;  false or distorted claims directed at manipulating electorates or altering perceptions of climate change and technological developments; and by the incitement of violence, especially during armed conflict and periods of instability;

Understanding that the expression ‘information operation[s] and activities’ encompasses any coordinated or individual deployment of digital resources for cognitive purposes to change or reinforce attitudes or behaviours of the targeted audience;

Such information operations and activities include the dissemination of disinformation, misinformation, hate speech, other types of harmful speech and methods for their dissemination;

Recognizing that, as noted by the United Nations Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe Representative on Freedom of the Media, the Organization of American States Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights Special Rapporteur on Freedom of Expression and Access to Information, in their 2017 Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda, “disinformation and propaganda are often designed and implemented so as to mislead a population, as well as to interfere with the public’s right to know and the right of individuals to seek and receive, as well as to impart, information and ideas of all kinds, regardless of frontiers, protected under international legal guarantees of the rights to freedom of expression and to hold opinions” and that “some forms of disinformation and propaganda may harm individual reputations and privacy, or incite to violence, discrimination or hostility against identifiable groups in society”;

Emphasizing that, as referenced in Principles 11 and 12 of the UN Guiding Principles on Business and Human Rights, companies have a responsibility to respect the human rights of individuals, and affirming that this responsibility extends to the impact of information operations and activities conducted using their services;

We agree that:

 

1. International law applies to all conduct carried out through information and communications technologies, including information operations and activities.

 

2. States must refrain from conducting information operations and activities when they would violate the principles of sovereignty and non-intervention in a State’s internal or external affairs.

 

3. States must refrain from engaging in, supporting or allowing forms of speech within their jurisdiction that are prohibited under international law, such as any propaganda for war and any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. To enforce this duty, States must prohibit by law information operations and activities amounting to such forms of speech.

 

4. States must refrain from engaging in, or supporting, any other information operation or activity that violates the rights of individuals within their jurisdiction, such as their right to life, health, private life, freedoms of thought and opinion, freedom of expression, including the freedom to seek, receive and impart information and ideas of all kinds, right to vote and participate in public affairs.

 

5. States must take measures to protect the human rights of individuals within their jurisdiction from violation by information operations or activities carried out by other States and non-state actors. Where such protective measures interfere with human rights, they must be in accordance with applicable legal requirements, such as legitimate purpose, legality, necessity, proportionality and non-discrimination.

 

6. In regulating information operations and activities, States must not unduly restrict the right to freedom of expression and other rights guaranteed under international law.

 

7. In addressing the impact of information operations, States must ensure that information and technology companies are able to operate their services consistently with the human rights of their individual users.

 

8. The conduct of information operations or activities in armed conflict is subject to the applicable rules of international humanitarian law (IHL). These rules include, but are not limited to, the duty to respect and ensure respect for international humanitarian law, which entails a prohibition against encouraging violations of IHL; the duties to respect and to protect specific actors or objects, including medical personnel and facilities and humanitarian personnel and consignments; and other rules on the protection of persons who do not or no longer participate in hostilities, such as civilians and prisoners of war.

 

9. Conducting information operations or activities will amount to international crimes, such as genocide, including direct and public incitement thereto, war crimes and crimes against humanity, where the elements of those crimes are fulfilled.

 

10. The application of the aforementioned rules of international law is without prejudice to any and all other applicable rules of international law that provide protections against information operations or activities.

 

  1. Dapo Akande, Professor of Public International Law, Co-Director, Oxford Institute for Ethics, Law & Armed Conflict (ELAC), University of Oxford
  2. Mariana Salazar Albornoz, Rapporteur on International Law Applicable to Cyberspace, InterAmerican Juridical Committee; Professor, Universidad Iberoamericana, Ciudad de México
  3. Daniel Álvarez-Valenzuela, Professor of Law, University of Chile School of Law, Academic Coordinator, Centre for Information Technology Law Studies (CEDI)
  4. Kai Ambos, Professor and Chair of Criminal Law, Procedure, Comparative Law, International Criminal Law and Public International Law, Georg August Universität Göttingen, Germany
  5. Pouria Askary, Associate Professor of International Law, Faculty of Law and Political Science, Allameh Tabataba’i University (ATU), Iran
  6. Romel Regalado Bagares, Professorial Lecturer, Lyceum of the Philippines University College of Law, San Sebastian College Recoletos Manila, Graduate School of Law
  7. William Banks, Board of Advisers Distinguished Professor emeritus, Syracuse University College of Law, Maxwell School of Citizenship & Public Affairs
  8. Steven J. Barela, Senior Research Fellow, University of Geneva
  9. Nehal Bhuta, Chair of Public International Law, University of Edinburgh
  10. Ziv Bohrer, Senior Lecturer, Bar-Ilan University Faculty of Law
  11. Michael Bothe, Professor emeritus of Public Law, School of Law, J.W. Goethe University Frankfurt/Main
  12. Chester Brown, Professor of International Law and International Arbitration, University of Sydney
  13. Marcel Brus, Professor of Public International Law, University of Groningen, The Netherlands
  14. Russell Buchan, Senior Lecturer in International Law, University of Sheffield
  15. Anne-Marie Buzatu, Vice President and Chief Operations Officer, ICT4Peace Foundation
  16. Michael Byers, Professor & Canada Research Chair in Global Politics and International Law, University of British Columbia
  17. Nicolás Carrillo-Santarelli, Associate Researcher, Institute of Human Rights and Business, University of Monterrey (UDEM), and Professor of the Master’s Programme in International Law, La Sabana University, Colombia
  18. Benarji Chakka, Professor of International Law, VIT-AP University School of Law, India
  19. Alejandro Chehtman, Professor of Law, Universidad Torcuato Di Tella, Argentina
  20. Roger S. Clark, Board of Governors Professor, Rutgers Law School
  21. Antonio Coco, Lecturer in Public International Law, University of Essex and Visiting Fellow at ELAC, University of Oxford
  22. Rebecca Crootof, Assistant Professor of Law, University of Richmond School of Law
  23. Federica D’Alessandra, Executive Director, Oxford Program on International Peace and Security, ELAC
  24. Tom Dannenbaum, Assistant Professor of International Law, The Fletcher School of Law & Diplomacy, Tufts
  25. Margaret M. deGuzman, James E. Beasley Professor of Law, Temple University Beasley School of Law
  26. François Delerue, Research Fellow in Cyberdefense and International Law at IRSEM & Lecturer at Sciences Po, France
  27. Diane Desierto, Professor of Law and Global Affairs, LLM Faculty Director, Notre Dame Law School and Keough School of Global Affairs
  28. Talita Dias, Shaw Foundation Junior Research Fellow, Jesus College, Oxford; Postdoctoral Research Fellow, ELAC, University of Oxford
  29. Jessica Dorsey, Assistant Professor of International and European Law, Utrecht University School of Law, The Netherlands; Associate Fellow, International Center for Counterterrorism–The Hague
  30. Dr. Pavan Duggal, Advocate, Supreme Court of India, Founder-cum-Chancellor, Cyberlaw University and Chairman, International Commission on Cyber Security Law
  31. Jeffrey L. Dunoff, Laura H. Carnell Professor of Law, Temple University Beasley School of Law
  32. Kristen Eichensehr, Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law, University of Virginia School of Law
  33. Martin Faix, Senior Lecturer in International Law, Palacký University Olomouc/Charles University in Prague
  34. Tom Farer, University Professor and Dean Emeritus (1996-2010), Josef Korbel School of International Studies, University of Denver
  35. Benjamin Ferencz, Chief Prosecutor, United States of America v. Otto Ohlendorf et al., Case IX of the Subsequent Proceedings at Nuremberg 1947-1948, (the “Einsatzgruppen” Case)
  36. David P. Fidler, Senior Fellow for Cybersecurity and Global Health, Council on Foreign Relations
  37. Malgosia Fitzmaurice, Professor of International Law, Queen Mary University of London
  38. Micaela Frulli, Professor, Law Department, University of Florence
  39. Gloria Gaggioli, Associate Professor of Public International Law, University of Geneva and Director of the Geneva Academy of International Humanitarian Law and Human Rights
  40. Chiara Giorgetti, Professor of Law, Richmond Law School
  41. Richard J. Goldstone, Retired Justice of the Constitutional Court of South Africa, former Chief Prosecutor of the ICTY and ICTR
  42. Guy S. Goodwin-Gill, Professor of Law, University of New South Wales (UNSW), Andrew & Renata Kaldor Centre for International Refugee Law, UNSW; Emeritus Fellow, All Souls College, Oxford
  43. James A. Green, Professor of Public International Law, School of Law, University of Reading
  44. Patrycja Grzebyk, Associate Professor, University of Warsaw, Poland
  45. Douglas Guilfoyle, Associate Professor of International and Security Law, University of New South Wales Canberra
  46. Oleg Gushchyn, Professor, Military Law Department, Taras Shevchenko National University of Kyiv, Ukraine
  47. Jakub Harasta, Assistant Professor, Faculty of Law, Masaryk University, Czech Republic
  48. Kevin Jon Heller, Professor of International Law and Security, University of Copenhagen (Centre for Military Studies); Professor of Law, Australian National University
  49. Christian Henderson, Professor of International Law, University of Sussex
  50. Tamás Hoffmann, Senior Research Fellow, Centre for Social Sciences Institute for Legal Studies; Associate Professor, Corvinus University of Budapest, Hungary
  51. Duncan B. Hollis, Laura H. Carnell Professor of Law, Temple University School of Law
  52. María José Cervell Hortal, Professor of Public International Law, University of Murcia, Spain
  53. Deborah Housen-Couriel, The Federmann Cyber Security Research Center at the Hebrew University of Jerusalem; Chief Legal Officer and VP Regulation at Konfidas Digital Ltd.  
  54. Mark Weston Janis, William F Starr Professor of Law, University of Connecticut; formerly Reader in Law & Fellow of Exeter College, University of Oxford
  55. Derek Jinks, A.W. Walker Centennial Chair, University of Texas School of Law
  56. Kate Jones, Associate Fellow, Chatham House
  57. Chimène Keitner, Alfred & Hanna Fromm Professor of International Law, UC Hastings School of Law, San Francisco
  58. Ido Kilovaty, Associate Professor of Law, University of Tulsa College of Law
  59. Robert Kolb, Professor in Public International Law, University of Geneva
  60. Joanna Kulesza, tenured Professor of International Law and Internet Governance, University of Lodz, Poland
  61. Masahiro Kurosaki, Associate Professor of International Law and Director of the Study of Law, Security and Military Operations, National Defense Academy of Japan
  62. Henning Lahmann, Senior Researcher, Digital Society Institute, ESMT Berlin
  63. Kobi Leins, Senior Research Fellow in Digital Ethics, University of Melbourne
  64. Eliav Lieblich, Associate Professor, Buchmann Faculty of Law, Tel Aviv University
  65. Marco Longobardo, Lecturer in International Law, University of Westminster
  66. Asaf Lubin, Associate Professor of Law, Indiana University Maurer School of Law; Faculty Associate, Berkman Klein Center for Internet and Society, Harvard Law School; Affiliated Fellow, Information Society Project, Yale Law School
  67. Fabrizio Marrella, Full Professor of International Law and Vice Rector for International Relations, “Ca’ Foscari” University of Venice, Italy; Professeur invité at the Sorbonne Law School, University Paris I Panthéon Sorbonne
  68. Errol P. Mendes, Professor, University of Ottawa; President, International Commission of Jurists, Canadian Section
  69. Tomohiro Mikanagi, Ministry of Foreign Affairs, Japan
  70. Marko Milanovic, Professor of Public International Law, University of Nottingham School of Law
  71. Tal Mimran, Research Director of the Federmann Cyber Security Research Center (Law Program), Lecturer in Public International Law, Hebrew University of Jerusalem
  72. Evgeni Moyakine, Assistant Professor in Law, University of Groningen, Netherlands
  73. Samuel Moyn, Henry R. Luce Professor of Jurisprudence, Yale University
  74. Harriet Moynihan, Senior Research Fellow, International Law Programme, Chatham House
  75. Valère Ndior, Professor of International Law, Bretagne occidentale University, France
  76. Michael Newton, Professor of the Practice of Law, Vanderbilt University Law School
  77. James C. O’Brien, Vice Chair, Albright Stonebridge Group
  78. Mary Ellen O’Connell, Robert and Marion Short Professor of Law and Research Professor of International Dispute Resolution, Kroc Institute for International Peace Studies, University of Notre Dame
  79. Stefan Oeter, Professor of Public Law and International Law, Faculty of Law, University of Hamburg
  80. Obiora Okafor, Professor and York Research Chair in International and Transnational Legal Studies, Osgoode Hall Law School of York University, Toronto, Canada
  81. Roger O’Keefe, Professor of International Law, Bocconi University, Milan, Italy
  82. Inger Österdahl, Professor of public international law, Uppsala University, Sweden
  83. Sejal Parmar, Lecturer, School of Law, University of Sheffield
  84. Anni Pues, Lecturer in International Law, Glasgow Centre for International Law and Security, University of Glasgow
  85. Przemysław Roguski, Lecturer in Law, Jagiellonian University in Kraków, Poland
  86. Hélène Ruiz Fabri, Professor of International Law, Director of the Max Planck Institute Luxembourg for Procedural Law
  87. Leila Nadya Sadat, Special Adviser on Crimes Against Humanity, International Criminal Court Prosecutor, James Carr Professor of International Criminal Law, Washington University School of Law
  88. Barrie Sander, Assistant Professor, Leiden University – Faculty of Governance and Global Affairs
  89. Andrew Sanger, University Lecturer in International Law, University of Cambridge
  90. Michael Schmitt, Professor of International Law at the University of Reading and G. Norman Lieber Distinguished Scholar at the United States Military Academy (West Point)
  91. Irene Vázquez Serrano, Assistant professor of International Law, University of Murcia, Spain
  92. Bruno Simma, Judge, Iran-United States Claims Tribunal, former Judge at International Court of Justice, Professor at the University of Michigan Law School, Ann Arbor, U.S.A., Professor (ret.) at Faculty of Law, University of Munich. Germany
  93. David Sloss, John A. and Elizabeth H. Sutro Professor of Law, Santa Clara University
  94. Ronald C. Slye, Professor of Law, Seattle University School of Law
  95. Alfred H.A. Soons, Professor emeritus of public international law, Utrecht University School of Law, The Netherlands
  96. Dale Stephens, Professor of Law, The University of Adelaide Law School
  97. Surya P. Subedi QC, Professor of International Law, University of Leeds, UK
  98. James Summers, Senior Lecturer in International Law; Director of the Centre for International Law and Human Rights, Lancaster University Law School
  99. Patrick C. R. Terry, Dean & Professor of Law, University of Public Administration Kehl, Germany
  100. Kimberley N Trapp, Professor of Public International Law, University College London Faculty of Laws
  101. Tsvetelina van Benthem, Research Officer, ELAC
  102. Willem van Genugten, em. Professor of International Law, Tilburg University
  103. Liis Vihul, Founder and CEO, Cyber Law International
  104. Michael Waibel, Professor of International Law, University of Vienna, Austria
  105. Christopher Waters, Professor, Faculty of Law, University of Windsor
  106. Philippa Webb, Professor of Public International Law, King’s College London
  107. Leah West, Assistant Professor & Associate Director (Admissions and Recruitment), Norman Paterson School of International Affairs, Carleton University, Canada
  108. Steven Wheatley, Professor of International Law, University of Lancaster
  109. Ralph Wilde, Faculty of Laws, University College London
  110. Pål Wrange, Professor of Public International Law & Director, Stockholm Center for International Law and Justice, Stockholm University
  111. Binxin Zhang, PhD Scholar in Political Science, Centre for International Studies, Sciences Po; Research Fellow, Centre for International Research and Policy
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Comments

Rytis Satkauskas says

June 3, 2021

I would like to thank ELAC for your work promoting international law in cyber world.
In light of the general understanding of the responsibility of a state to ensure that its territory is not used for acts violating its treaty and customary commitments, the question stands whether the state should also have the obligation to restrict the access to certain information available online in its territory. It correlates with the obligation to ensure the right to information, in particular, right to information in times of crisis (see UNESCO report). The question in thus when a censorship becomes an obligation. This tricky question requires weighted arguments.
According to UN Human Rights Committee any restriction of the right to information is legitimate only if it:
1) Is provided by law: must be accessible; give clear direction
as to what is being restricted, and not grant “unfettered discretion” to others to restrict rights.
2) Protects a legitimate interest, including the rights of others, national security, public order, or, in current context, public health.
3) Is itself “necessary” to protect the legitimate interest: least
restrictive from among available options should be used;
proportionate.

David Smith says

June 9, 2021

In the interests of transparency should the support of Microsoft in convening this process on the international law protections in cyberspace not be declared and considered?