On 3 March 2023, Pakistan’s Mission to the United Nations presented Pakistan’s position on the application of international law in cyberspace to the United Nations Office for Disarmament Affairs in New York. In the document, the state emphasised the socioeconomic benefits that can be reaped from the internet. Cyberspace largely contributes to national growth via a vast Information and Communication Technologies (ICTs) network. However, it is highly threatened by diverse and constantly evolving threats, creating the need for a multifaceted approach to secure cyberspace. The involvement of multiple state and non-state actors, possession of destructive cyber tools, and attribution problem are a few catalysing factors which have turned cyberspace into an arena of conflict. Pakistan has taken an official stance on applying international cyber law, demonstrating its proactive engagement with this issue.
International cyber law is a complex, rapidly developing and evolving field of law that intends to govern the use of digital technologies and cyberspace on a global scale. Some key treaties or agreements formulated to regulate cyberspace include the Budapest Convention on Cybercrime, the Tallinn Manual, the UN General Assembly Resolution on Cybersecurity, and the Group of Governmental Experts (GGE) on Developments in the Field of Information and Telecommunications in the Context of International Security. These legal instruments centre on cybercrime investigations and prosecutions, the criminalisation of various forms of cybercrime, the development of norms and principles for responsible behaviour of the state in cyberspace, the application of international law, International Humanitarian Law (IHL) and human rights law to cyber warfare and cyber operations.
The international community, comprising 27 countries with a clarified stance over the application of international cyber law, aims to contribute efforts to regulate cyberspace and ensure its responsible use. Pakistan is now among those states, and it advocates for the application of international law, including the UN Charter as well the IHL, in cyberspace. The state believes that the existence of voluntary norms cannot substitute for a legally binding instrument supported by a robust mechanism for enforcement. The state has also clarified its consistent position regarding the militarisation of cyberspace. It maintains that the internet is a “common heritage of mankind”, and the use of cyberspace for military purposes has the potential to transform it into an arena of military conflict. Some of the primary positions taken by the government include an outright ban on the development of offensive cyber weapons, the possibility of application of the UN Charter in cyberspace as in the physical world, and the need to address challenges emanating from the applicability of international laws.
Regarding the application of international law in cyberspace and the use of ICTs, the current stance of Pakistan depicts its support for a constructive debate among the Member States to establish clear mechanisms for the application of the concepts like self-defence, non-interventionism, non-use of force, sovereignty, peaceful settlement of disputes, and attribution in cyberspace. UN GGE and Open-Ended Working Group (OEWG) reflect the significance of promoting an open, stable, secure, peaceful and accessible ICT environment. This can be achieved through common understanding, capacity building, confidence-building measures, and cooperative measures to address potential threats, like in the domain of information security. The reports of GGE and OEWG also concluded that there is a need to develop further how international law applies to state use of ICTs.
As for IHL, it is defined as a set of rules which, for humanitarian reasons, comprises regulations aiming to limit the effects of armed conflict. IHL and human rights law have two different spheres, where the latter is applied in peacetime, and few of its provisions can also be suspended during an armed conflict. IHL protects those who do not take part in the fighting, including medical and religious military personnel and civilians or those who have been injured and are prisoners of war. Under IHL, civilians are safeguarded against attacks unless they directly participate in violence. The question of whether IHL can be applied to cyberspace, like other international laws, including the UN Charter, has been a topic of debate. States have a divergent set of views regarding the modification of the existing framework of IHL amidst the continuously varying nature of warfare. The attribution problem and the complexity of threat detection, in the beginning, make the application of international law and international humanitarian law tricky. Moreover, the three cardinal principles of IHL: precaution, distinction, and proportionality are the main areas of discussion when considering legal aspects of cyberspace. The definitional clarity of the cyber-related terms and the resolution of the attribution problem must be ensured for the proper application of international cyber or humanitarian laws.
With regard to the application of international humanitarian law in cyberspace, Pakistan stands that there should be a clear distinction between civilians and combatants amid cyber conflicts. The indiscriminate damage should be unacceptable and outlawed, and the civilian population must be protected during an outbreak of cyber warfare. The state believes that the existing framework of IHL needs modification to accommodate the fluctuations in the modern-day world. It must uphold the principles of humanity, distinction, proportionality, and precaution. Therefore, a legally-binding instrument which not only promotes the responsible behaviour of states in cyberspace but also regulates the use of digital and cyber technologies according to the principles of IHL must be formulated. Hence, the state acknowledges the indispensability of cross-border collaboration and equal footing of all states for a secure and stable cyberspace.