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“Due Diligence”: Applicable to a “suis generis” cyberspace law ?

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YOO Joonkoo

Application of International Law to Cyberspace : Major Issues and Implications. 2015/08/03






Due to the transnationality, virtuality, anonymity, and simultaneity of cyberspace, the application of international law to cyberspace, and the issues and challenges derived from it, are unique and vastly different from those of more traditional areas, such as the global ocean, the atmosphere, outer space, and Antarctica.

Having most recently emerged as a new global commons, cyberspace ( whose operations and infrastructure technology go under state control ) is an environment which needs to be regulated at the international level to ensure users’ free and unrestricted access.

However, the virtuality, anonymity, and simultaneity of cyberspace set it distinctly apart from the rest of the global commons. Accordingly, international law on cyberspace may be either sui generis – or similar to existing international laws that are applied to other global commons.

Advocates of the latter begin with the premise that every illegal act committed in cyberspace has a substance to it and therefore, customary international law is applicable in terms of actors, victims, response measures, and state responsibility.

The other side holds that if customary international law is to be applied to cyberspace, legal and policy problems cannot be avoided because of the unique characteristics of cyberspace, and that an agreement first needs to be reached among countries.

Since cyber infrastructure and activities in cyberspace are under the exercise of national sovereignty, there is a controversy as to whether the legal principle of “due diligence” is applicable to cyberspace.

Due to the lack of an international legal definition of sovereignty in the cyber context, criteria as to what constitutes the violation of sovereignty in cyberspace are not definite, and countries remain divided on the subject of “due diligence”.

Recent debates are moving towards recognizing internal sovereignty over cyber infrastructure and cyber activities, and external sovereignty over cyber operations not explicitly prohibited by international law, along with the application of “due diligence” as a way of balancing out the two.

It is worth noting that a strict application of “due diligence” might result in expanded state responsibility for a state’s illegal and wrongful acts.