International Public Law in the Cyber Era: New Norms, Actors, and Approaches

On the first day of the 10th St. Petersburg International Legal Forum, the International Youth Legal Forum kicked off with a panel session on ‘International Public Law in the Cyber Era: New Norms, Actors, and Approaches’.

In her speech to open the session, Moderator Vera Rusinova, Head of the Department of International Law, Faculty of Law, National Research University Higher School of Economics, drew the attention of all to the fact that “at present, the active development of information technology and its full-scale penetration into every aspect of society is having a multifaceted impact on the very foundations of international public law (IPL). It is undergoing major substantive and structural changes as a result of trends towards de-formalization and attempts to privatize international law-making. The emerging role of corporations, the increasing use of computer technology to interfere in the affairs of other states, and other manifestations of the growing influence of information technology on international public law call for a rethinking of the traditional approach to the application of legal rules and the role of various actors in the new cyber-reality”.

Rusinova called on the speakers to address the following questions: How does the new reality and the use of information and communication technologies relate to the discipline of international public law? Can international public law be applied to existing and current norms? How do new processes and phenomena related to activities in the information space affect and impact international public law in so much as the role played by digital platforms is becoming more significant and must comply with human rights standards? In what way is international public law itself changing?

Alexey Petrenko, Senior Expert, Center for International and Investigative Legal Studies; Master of Law, Doctoral Candidate, Göttingen University George-August, said that “the digital economy now exists without regard for national borders, and this fact alone suggests that the issues should be regulated by the instruments of international public law”.

He spoke about existing regional trade agreements, which differed by type and served as vehicles for regulation at the international level. They happened to include agreements in electronic form. Whereas in 2017, one in four was electronic, now it's one in three.    

As of now, the speaker said: “We lack legally binding rules created on this platform. E-commerce continues to be a new phenomenon, and states themselves are at a loss as to how they ought to approach regulation. In addition, a digital divide exists between countries and their different approaches”.

“Technology is evolving so rapidly that fixing and negotiating rules for the digital economy and trade has moved from the global, multilateral level to the regional. Regional trade agreements allow room for experimentation and let us see how different regulatory models work in practice and incorporate them into our activities,” Petrenko said in conclusion.

Alexander Lasch, Chief Specialist-Expert of the Department for Legal Support of International Economic Integration of the Department of International Law and Cooperation, Ministry of Justice of the Russian Federation, spoke of the relevance of the session’s agenda and cited the example of the digital platform Twitter cancelling US President Donald Trump.

“Nowadays, data is collected by digital platforms in real time, exchanged, sold, and made available to the relevant authorities. The main challenge is to define the place of digital in our life in general and its specific place in the system of legal relations, since it seriously influences today’s political and economic culture. We need to think about how a categorization like ‘digital platform’ relates to the category of jurisdictions in the classical sense between states. What are the limits of their power in the international arena?” the speaker asked.

Responding, he outlined three possible options: “Classic – jurisdiction over the digital platform; jurisdiction through the platform; and jurisdiction of the platform. When it comes to ‘jurisdiction through the platform’, the platform takes on a kind of autonomous essence and no longer has any regard for which state claims to regulate it.

In the case of the ‘jurisdiction of the platform itself’, a problem arises with the platform opposing the state and claiming that its rules, values, and interests are at least on a par with those of the state.”

The speaker cited the example of the 17th century East India Company, which for several centuries exhibited all the features of a sovereign state. It had its own army, its own colonial administration, and dealt with other states on the basis of the principles of international law and comity.

“Now, we can say that the state does have jurisdiction over digital platforms and actively regulates and monitors them, demanding compliance with laws and regulations,” Lasch said.

Olga Kudinova, 2nd Year Student of the Master’s Programme ‘Law of International Trade, Finance and Economic Integration’, Faculty of Law, National Research University Higher School of Economics, noted in her talk that “according to available data, as of January 2022, approximately 58% of the world’s population is using social media. This represents approximately 90–93% of all Internet users. Under these circumstances, the question arises of how to allow for the interests of individuals and society when managing social networks, and specifically when managing information flows in a way that balances the interests of all parties”.

“At the national level, it is very rare to find any specific norms that could tell us how to moderate content with respect to human rights. At the international level, there is an act, the Guiding Principles on Business and Human Rights, which was endorsed by the UN Human Rights Council in 2011. These principles also fully apply to social networks that claim to respect human rights, though it’s most likely just a declarative statement. Social networks still underestimate their role and deliberately refuse to take serious steps to reduce the negative impact they have on human rights,” Kudinova said in conclusion.

Sergey Sushkov, Lawyer, Ivanyan & Partners Law Office, said that “modern technology can violate human rights, so international treaties in this area can be applied with the use of information and communication technologies”. “The ability to hold a state to account will depend on law enforcement practices and whether the state enjoys extraterritorial jurisdiction. The state should not control the individual, but rather the individual’s ability to exercise his or her rights,” Sushkov said.

Ekaterina Martynova, Lecturer, Postgraduate Student, Department of International Law, Faculty of Law, National Research University Higher School of Economics, drew attention to the way in which the rules of law were applied between the various actors in the digital space and the responsibility of the state in their application. “This is a very sensitive area for states and international norms on state responsibility have often, until recently, remained an impregnable fortress. At last, just now, we’ve begun to examine the applicability of these norms more closely, not only for the sake of scientific interest but also as a practical necessity due to the constant escalation of hostile actions taken by different states in cyberspace. Perhaps here we will go the way of forming Lex specialis specifically in relation to countermeasures in cyberspace,” Martynova said in conclusion.

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