Вменение государству использования информационно-коммуникационных технологий

Журнал зарубежного законодательства и сравнительного правоведения. 2024. Т. 20. № 5. С. 74–84.

Rusinova V., Sushkov S.

Attribution of the use of information and communication technologies (ICT) to a state for the purposes of invoking its international responsibility is a complex task from both a practical and legal point of view. The paper examines in detail the extent of state control over non-state actors using ICTs that would be sufficient to attribute their conduct to the state. In addition, the article considers the development of special rules of attribution for the so-called “cyberspace”.

The purpose of the study is to identify the possibility of adapting customary rules on state responsibility to the use of ICTs by non-state actors. The objectives of the study are to analyze the norms for attributing to the state the behavior of persons acting on the instructions of, or under the direction or control of, the State and to generalize doctrinal approaches to the application of this basis for attribution to the use of ICT. The scope of the research also includes the study of conditions under which special rules may arise for attribution of the use of ICT to the state, a review of existing state practice and opinio juris in this area of public relations.

Along with general scientific research methods, comparative legal, formal legal, historical methods, as well as the methodology of structural critical analysis of law were used.

Conclusion. The test of “effective” control developed by the International Court of Justice is hardly appropriate in the “cyber context”. The text of the Articles on State Responsibility for Internationally Wrongful Acts of 2001 allows the interpretation of the term “control” beyond the scope of the “effective control” test, and also allows it to be applied in the context of the use of ICT in conjunction with the “overall” control test. The authors note the extremely cautious approach that has developed in the practice of states to attribute malicious acts of using ICT to specific states, which does not contribute to the emergence of special attribution rules in accordance with Article 55 of the Articles on State Responsibility.

Keywords: информационно-коммуникационные технологии, киберпространство, cyberspace, вменение, information and communications technologies, Право международной ответственности, attribution, кибероперации, cyberoperations, law of state responsibility

Publication based on the results of: Legal mechanisms of overcoming inequality (2024)