Due Diligence in General International Law
DOI:
https://doi.org/10.68740/vd2ta394Keywords:
International law, international court of justice, icj, due diligenceAbstract
This article reviews the scope of the general international law obligation to "take all necessary measures" to prevent serious transboundary harms of cyber operations, and, somewhat tentatively, State-related algorithmic activity. It does this because it considers due diligence to be a starting point for the conduct rules – different from the rules of attribution and consequences of internationally wrongful acts. This analysis is based mainly on the decisions of the International Court of Justice, the work of the International Law Commission on the law of State responsibility and the law of due diligence, and a few official statements regarding the law applicable to cyberspace. The article posits that the concept of the due diligence is a well-known practice in general international law, including in the context of a State's legally relevant relationship to a source of risk and its knowledge or reasonable knowledge of a serious risk for the enjoyment of rights guaranteed by international law. The same is not the case regarding its use in cyberspace, however. Views vary on the legal nature and content of cyber due diligence among the States: some States explicitly state that cyber due diligence is customary, and others acknowledge the principles but not the idea that there is a rule in cyber due diligence. The article suggests using a four-part analytical structure for the evaluation of alleged omissions: a legal nexus, knowledge or foreseeability, reasonable and feasible measures, and a threshold of legal cognizability of a risk or harm. It then examines whether a similar approach can be used for algorithmic systems that are associated with the State. The author concludes that technological novelty does not eliminate the current international-law obligations but also does not automatically involve new ones. That is why it is best to argue a cyber and algorithmic case in a disciplined way; that is, predispositions from due diligence can be applied to a cyber and algorithmic case where the legal requirements are met; and that the requirements for cyber-specific legal rules as to their status and content are still subject of ongoing State practice and legal development. This is a list of topics covered in the document.This is a list of the topics addressed in the document.
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