On The Application Of Due Diligence In Transboundary Harm To Cyber Space

Rapid development of the network technology generates severe challenges,so the construction of the cyber space system has been paid more and more attention.Cyber space as one of the "new frontiers" is of incomparable importance for national strategic development,becoming a new area for national power competition.However,the "new frontier" is not lawless.And the rule of law,especially the international rule of law,still needs to be implemented.The absence of the international rule of law will lead to disorderly development of cyber space and even threaten individual rights,social development and national security.Therefore,it is necessary to apply international rules to regulate cyber space.This paper discusses the application of the obligation of due diligence in transboundary harm,a typical rule of international law,to cyber space.In light of cyber space's significant influence on the economy,politics and culture while the existing barriers like cyber espionage,mass extraterritorial surveillance,transnational cyber-crime,the major countries in the world take measures to maintain the network security and therefore cyber space governance becomes an important issue.To this regard,the international community consents cyber space governance needs to learn from the experience of physical space governance.From a theoretical perspective,there is a close relationship between cyber space and physical space,and the governance of cyber space has strong similarity with the early international governance practices such as ocean and sky.And it is in line with the national interest expectation to regulate cyber space through international rule of law.The due diligence in the cross-border harm is selected since the harm in the cyber space is similar with the cross-border harm.Moreover,it is demonstrated that the principle of due diligence can be regarded as the general principle of law from international and domestic perspectives,so it can be applied to the cyber space.From a practical perspective,countries have come to terms with the recognition that existing rules of international law can be applied to cyber space,despite of their initial differences on the application of the rules of cyber space.And the obligation of due diligence looking at cross-border harm can also be applied to cyber space from a technical point of view as well.Specifically,the obligation of due diligence in cross-border harm should apply to cyber space flexibly:states shall not knowingly allow cyber activities under its jurisdiction and control to cause significant harm to other states.Those terms including "knowledge","jurisdiction and control",and "significant harm" should interpret combined with the specific conditions in cyber space.And in order to fulfill their obligations,States shall carry out cyber risk assessment,notify potentially affected countries and consult for countermeasures when cyber activities that may cause significant harm are found and monitor cyber activities throughout the process to track risks.Following those rules,the state will be more justified in dealing with such issues as cyber espionage,mass extraterritorial surveillance,cyber terrorism and transnational cyber-crimes.Since it is highly realistic and necessary to apply the obligation of due diligence in transboundary harm to cyber space,the well application of this rule will help to create and maintain a healthy cyber space.The significance of this rule for China in the construction of cyber space security lies in the following aspects:China should not only restrain its own behaviors,but also strive to achieve international cooperation through system construction.Moreover,besides the perfection of rules,the implementation of network security needs the development of technology.