Международно-правовая квалификация вредоносного использования информационно-коммуникационных технологий: в поисках консенсуса
INTRODUCTION. States are seized with the question of how International Law norms should be applicable with respect to harmful use of information and communications technologies (hereinafter – ICT) in many different collective formats. Against this background, an intensive disclosure of the states' positions is a brand new trend. So, managerialism is slowly giving way to consensualism, however, do these collective and individual efforts help to clarify, at least, the key problems connected with the qualification of these harmful practices?
MATERIALS AND METHODS. Being based on the analysis of the reports of the UN Group of Governmental Experts and the Open-Ended Working Group, as well as the official positions articulated by states, this article seeks to reveal on which questions and in which volume states have managed to achieve a consensus on the qualification of harmful cyber activities under International Law. This question is crucial for the identification of the subsequent practice in the application of international treaties which establishes the agreement of the parties regarding their interpretation, as well as the practice and opinio juris as elements of international customs.
RESEARCH RESULTS. The research confirmed that the principle of non-intervention into domestic affairs, albeit its full applicability in cyber context is not being questioned by the states, has a very limited significance for the qualification of the harmful use of ICTs, which brings to the forefront the principle of sovereignty. However, the states' official positions, based on a denial or, vise versa, an affirmation of this principle as a separate rule, postulate the impossibility to apply the principle of sovereignty without concretization of its content in the cyber context. The polyphony of the approaches does not foreshadow a possibility to reach consensus on this issue in the nearest future. With respect to the jus ad bellum and jus in bello norms, the readiness of the majority of states to qualify the cases of harmful use of ICTs as a 'use of force' or even an 'armed attack', and to overstretch the scope of the International Humanitarian Law notions of an 'attack' or 'military operation', is described as being indicative of the abuse of the 'military paradigm' to assess these activities. Approaches of some states go beyond the normative scope of these notions so far that their assertion loses legal significance and seems to have rather a political character by primarily fulfilling the deterrent function.
DISCUSSION AND CONCLUSIONS. The article concludes by diagnosing that a consensus between states on the application of International law to harmful ICT practices has been reached at a very high level of abstraction and hardly transcends the limits of the general acknowledgment of the applicability of International law in the cybersphere. This fact enshrines the indeterminacy as the main feature of the qualification of harmful use of ICTs under International law and renders almost every stance on nuances of the application of International law to these acts to be an ad hoc one.