1.

HISTANBUL HAS VIOLATED THE TERRITORIAL INTEGRITY OR POLITICAL

INDEPENDENCE OF ALSARA

An international wrongful act is committed by a State when the conduct constitutes a breach
of an international obligation1 and such conduct is attributable to that State 2. Histanbul is
responsible for the international wrongful act of violating the territorial integrity or political
independence of Alsara as (A) Jumbo’s actions were not in consonance with international
law; and (B) Jumbo’s actions are attributable to Histanbul.

A. JUMBO’S ACTIONS WERE NOT IN CONSONANCE WITH INTERNATIONAL

LAW

The UN Charter prohibits the ‘use of force’ against the territorial integrity and political
independence of a State.3 Several international instruments4 5 have emphasised on the duty of
States to refrain from any form of coercion aimed against the political independence or
territorial integrity of a State. It goes on to protect the State from threats which could be
directed against and eventually influence the freedom of its decision-making.6

The concept of ‘territorial integrity’ aims at the protection of the sovereignty of states,78 while
‘political independence’ empowers the State with the freedom to take decisions in matters
pertaining to its domestic and foreign affairs,9 These two concepts, when coupled together,

1
ASRIWA, art. 2, 12 & 13; James Crawford et. al, The I.L.C.'s Draft Articles on State Responsibility: Toward
Completion of a Second Reading, 94 A.J.I.L. 660, 666-667 (2000); James Crawford et. al., The ILC's Draft
Articles on Responsibility of States for Internationally Wrongful Acts: Completion of the Second Reading, 12
EUR.J.INT'L.L. 963, 972 (2001).
2
U.N. G.A.O.R., 56th Sess., Report of the International Law Commission on the work of its fifty-third session,
art. 2, 32 U.N. Doc. A/56/10, (2001) [hereinafter ASRIWA]; Daniel Bodansky & John R. Crook, Introduction
and Overview, 96 A.J.I.L. 773, 782 (2002); James Crawford, Revising the Draft Articles on State Responsibility,
10 E.J.I.L. 435, 447 (1999); Philip Allott, State Responsibility and the Unmaking of International Law, 29 HARV.
INT'L. L.J. 1, 11 (1988); Jean Combacau & Denis Alland, "Primary" and "Secondary" Rules in the Law of State
Responsibility: Categorizing International Obligations, 16 NETH.Y.B.INT'L.L., 81 (1985).
3
Art. 2(4)
4

5
Friendly declaration
6
https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1116
7
https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1116
8
See Advisory Opinion of 22 July 2010 on Accordance with International Law of the Unilateral Declaration of
Independence in respect of Kosovo, ICJ Reports, 2010, pp. 403, 437.
9
https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1116
constitute the territorial ‘inviolability’ of a state1011 and the infringement of territorial
inviolability contributes a violation of sovereignty. The obligation of a state to not intervene
in the affairs of another state has been referred to as the “corollary of every State’s right to
territorial integrity and political independence.” 12 13

Owing to the expansive scope of International law, its application is not restricted to physical
forces, but extends to cyber space. 14 Foreign activities in cyberspace can violate the rule of
sovereignty and a number of states have taken an active stand on the same. 15 The Tallinn
Manual prohibits the intervention of a State in the internal or external affairs of another State
by cyber means.16 As with sovereignty violations, cyber operations targeting a State’s
infrastructure can qualify as intervention.17 For a cyber operation to qualify as wrongful
intervention, it needs to satisfy two elements: (a) the operation must affect a State’s domaine
réservé; and (b) the cyber operation should be characterised by coercion.18

a) Histanbul’s cyber operation affected the domaine réservé of Alsara

A prohibitive intervention must crossover into the domaine réservé or the internal and
external affairs, i.e., it should bear on matters in which each state is permitted, by the
principle of state sovereignty to decide freely. 19 One of the most paradigmatic examples of
matters encompassed in the domaine réservé is that of elections or the “choice of a political
system”.20 The UNGA has also highlighted the importance of non-intervention in a State’s
internal affairs for the holding of elections.21

In the instant case, Histanbul’s social media platform, Jumbo has been involved in meddling
with the electoral process of Alsara. The platform has not only published statements alleging
10
L. Oppenheim, International Law, in H. Lauterpacht (ed.), Disputes, War and Neutrality, 7th edn. 1952, 154;
Derek W Bowett, Self-Defence in International Law (Manchester University Press, 1958) 152.
11

12
Island of palmas
13

14

15

16

17

18

19

20

21
http://hrlibrary.umn.edu/resolutions/50/172GA1995.html
the Prime Minister to be responsible for corruption, 22 but has also shared the data of its users
with the opposition party in order for them to target voters for the forthcoming elections; 23
thereby trying to manipulate the democratic election process of Alsara and affecting its
domaine réservé.

b) Histanbul’s intervention was coercive in nature

“An intervention is wrongful when it uses methods of coercion in regard to such choices,
which must remain free ones.”24 A coercive action deprives a state of its freedom of choice
and persuades it to act in an involuntary manner. 25 Coercion can be said to “subordinate the
sovereign will” of the target State.26 In regard to elections, it could manifest in the election of
an otherwise unsuccessful candidate or the weakening of a successful candidate’s political
base.27 Some cases of electoral coercion by cyber means include manipulation of elections or
public opinion, or alteration of online services in favour of a particular party or spread of
disinformation.28

A typical example of electoral coercion was Russia’s troll operation in the 2016 U.S
presidential elections.29 The covert nature of the trolls on social media deprived the American
electorate of its freedom of choice as they were unable to evaluate the information or control
their governance, as a result of foreign manipulation. Moreover, the information acquired was
by means expressly prohibited under common law- namely, the unlawful penetration and
exfiltration of private data.30

In the instant case, Jumbo was responsible for publishing disinformation about a member of
the APC31 as well as for acquiring the private data of Alsarian citizens to target them with

22
Factsheet para 11
23
Para 13
24

25
Tallinn manual 2.0
26

27

28

29

30

31
Para 11, factsheet
negative opinions about the APC;32 thereby coercively intervening into the electoral process
of Alsara.

The fulfilment of the two essentials, namely the effect on the domaine réservé, and the
presence of coercion characterises the cyber operation of Histanbul as wrongful intervention.
As mentioned above, wrongful intervention in the affairs of a State infringes its territorial
integrity or political independence. Thus, in light of the aforementioned, it is humbly
submitted that the wrongful cyber intervention by Jumbo in the electoral affairs of Alsara
constitutes a violation of its territorial integrity or political independence.

The internationally wrongful act done by Jumbo is attributable to the State of Histanbul. The
doctrine of attribution, which has been codified under the draft articles of the ILC
[hereinafter, referred to as ASRIWA] is used to determine the attributability of a conduct to
the State. According to the ASRIWA, a State becomes responsible for the wrongful acts of an
entity when such entities are either empowered by the government to exercise public
functions33 or when they are acting on the instruction or control of the government 34. In the
present case, Jumbo’s actions are attributable to Histanbul as (1) Jumbo was empowered by
the government of Histanbul to perform public functions; (2) Jumbo was acting under the
overall control of Histanbul; and (3) Histanbul failed to prevent Jumbo’s wrongful acts as it
failed to fulfil its due diligence obligations.

1. Histanbul’s legal framework has empowered Jumbo to exercise a public function

The actions of entities that are ‘empowered by the law of a State’ to exercise public functions
are considered as acts of that State. 35 The criteria for what constitutes a ‘public function’
depends on the particular society, its history and its traditions. 36 In the instant case, the State
of Histanbul considers the freedom of expression a ‘non- negotiable liberty’ in its legal
framework,37 thereby empowering its media platforms to exercise this freedom. Thus, Jumbo,
the social media service based in Histanbul, was ‘empowered by the law’ of Histanbul to

32
Para 13
33
ASRIWA, art. 5.
34
ASRIWA, art. 8.
35

36

37
perform public functions which are in consonance with the freedom of speech and
expression.

The ‘public functions’ performed by Jumbo include funding of initiatives to promote ‘digital
equality’ and providing internet access at low rates in far flung areas. 38 By virtue of state
practice, providing internet access and augmenting digital equality has been recognised as the
responsibility of state: The government of Estonia launched an extensive program to provide
digital equality.39 France declared the access to Internet to be a basic human right to be
provided by the state.40 The Government of Kenya initiated myriad schemes to support digital
villages in the state.41 Governments of developed countries such as U.S and the countries of
EU have implemented legal regimes in order to achieve the goal of increased internet access
for people.42

Secondly, a large number of states are entering into contracts with non-state entities to
facilitate digital equality. The government of Spain entered into a contract with Telefonica to
provide Internet at economical prices throughout Spain. 43 In Latvia, the Ministry of
Transport administers the contracts entered into by LVRTC, the chief company of the State
responsible for providing core network fibre in the country.44 The same is done so as to
maintain the public nature and ownership of the entity.

In light of the aforementioned facts, it is humbly submitted that the funding of initiatives for
promoting ‘digital equality’ by Jumbo essentially constitutes a public function, which has
been empowered to it by the Government of Histanbul. Therefore, the actions of Jumbo must
be attributable to Histanbul.

2. Jumbo was acting under the overall control of Histanbul

38
Fact Sheet
39

40

41

42

43

44
It is an act of a State under international law, if a person or group of persons is acting on the
instructions of, or under the direction or control of that State in carrying out its conduct. 45
Attribution of a State under the ‘overall control’ standard is established when the State
finances as well as participates in the activities of a non-state actor. 46 The two essentials
required to establish ‘overall control’ are the presence of i) financing and capital interest in
the company and ii) planning or organisation of its activities.

Shareholders possess a share, which is their interest in a company and is measured by a sum
of money, for the purposes of liability. 47 By virtue of their capital contributions, they are
regarded to have a significant stake in the company’s financing. 48 Shareholders determine the
objectives of the association of the company and participate in its planning, in regard to the
use of its property and other assets;49 thereby playing a fundamental role in financing as well
as planning of the company’s activities.

In the case at hand, several government companies of Histanbul are stakeholders of ‘Jumbo’,
such that the total shareholding amounts to a substantial percentage of 45%. 50 This share,
coupled with the overall control exercised by shareholders on a company, implicates that the
government, on virtue of having a major share in Jumbo, exercised overall control over it and
is thus, responsible for Jumbo’s actions.

Additionally, where the conduct of an entity is empowered by the State to perform certain
public function, the amount of State participation in the capital of such entities does not
remain a decisive factor for the purpose of State attribution for its conduct. 51 In the present
case, Jumbo had been empowered to perform certain public functions. 52 Additionally, the
government companies of Histanbul account for 45% of Jumbo’s share, which is substantial
enough for it to not escape its responsibility under the defence of minority shareholding.53

45

46
Prosecutor v. Tadić, Case No. IT-94-1-A, Appeal Judgement, ¶145, 160 (Int’l Crim. Trib. for former
Yugoslavia Dec. 27, 2018) [hereinafter Tadić case].
47

48

49

50

51
CRAWFORD ON ASRIWA, art. 5, ¶3, 43.
52

53
Furthermore, in the statement released by the Government of Histanbul, it demanded that Ms.
Panth, the founder of Jumbo, be handed over to Histanbul’s judicial custody 54, so that she
could be tried for the offences alleged on her. The government of Histanbul, thus,
acknowledged the wrongful act conducted by its agent Jumbo.

3. Histanbul is responsible for its failure to prevent Jumbo’s wrongful acts as it failed to fulfil
its due diligence obligations.

The principle of due diligence obligates the States to ensure that their territory is not used as a
location from which cyber-attacks having adverse consequences for the target state are
launched.55 States are, thus, required to take actions necessary to put an end to harmful cyber
operations that occur from their territory.56 In order for a victim state to attribute the meddling
of its elections to another state, the former has to establish that the cyber operation from the
opposite state breached a legal obligation, such as that of violating sovereignty or qualifying
as prohibited intervention.

In the case at hand, the cyber operations launched by Jumbo from Histanbul were targeted
against the sovereignty of Alsara and went on to wrongfully intervene with the latter’s
political independence and territorial integrity; thereby causing the breach of an international
obligation. Thus, Histanbul’s failure of not adhering to its due diligence obligations make it
responsible for the said breach.

54

55

56