New Technologies in International Law / Tymofeyeva, Crhák et al.

Since cyberspace encompasses a series of unusual characteristics as a domain (e.g. a-territoriality, almost instant transmission of information) the no-harm principle cannot be applied as is. However, this does not mean that it is inapplicable. If certain elements of the principle are slightly modified, it is my contention that it can apply to cyberspace and be used to effectively redress cyber harm. In this paper, I will address two of those elements, the type of harm and the standard of knowledge required. The first obstacle that must be surpassed, is the type of harm needed, in order for the no-harm principle to apply to cyberspace. It has been questioned, whether the no harm principle can apply to types of harm that are beyond the environmental realm, to cover harms not related to the ecology. 81 Furthermore, it has also been questioned whether the no-harm principle can also cover non-physical harm. 82 Since the harm of cyber operations is mostly intangible and it is often not related to the environment, both of those questions are relevant for the application of the no-harm principle to cyberspace. For the first part of the obstacle, there is enough evidence to support that the no-harm principle may cover harms beyond an ecological or environmental context. The International Law Commission (ILC), in its Draft Articles on Prevention of Transboundary Harm from Hazardous Activities defines harm as ‘harm caused to persons, property and the environment’. 83 This position is also supported by judicial practice. When the Trail Smelter Arbitral Tribunal was looking at the history of the principle it found that the obligation not to cause transboundary harm includes any ‘injurious acts to the territory of another state, persons or property therein. 84 The second obstacle is slightly more difficult to overcome, especially considering that when the ILC started drafting the Draft Articles on Prevention of Transboundary Harm, it consciously chose to focus only on physical harm. 85 However, this decision was a practical one, that recognized the absence of state practice on the matter, when the discussion for the articles was current (1983) and thus making ILC’s work easier. 86 Nevertheless, there is evidence that states considered transboundary non-material injuries, even before 1983. Existing state practice, mainly in the field of radio- telecommunications, indicates that since 1927 states have agreed to refrain from and prevent harm that has no physical consequences. 87 Since states recognized duties to prevent such types of non-physical harm since 1927, and absent contrary state practice 82 Duvic-Paoli, L-A, The Prevention Principle in International Environmental Law (CUP, 2018), 181. 83 Article 2(b) ILC, ‘Draft Articles on Prevention of Transboundary Harm from Hazardous Activities’, ILC Yearbook 2001/II(2). 84 Trail Smelter (n 66) 1963. 85 ILC, Draft Articles on Prevention (n 83) 151. 86 Ibid. 87 ITU, ‘Constitution and Convention of the International Telecommunication Union (with annexes and optional protocol)’, (adopted on 22 December 1992, entered into force 1 July 1994), 1825 UNTS 31251; ILC, ‘Survey of State practice relevant to international liability for injurious consequences arising out of acts not prohibited by international law, prepared by the Secretariat’, UN Doc A/CN.4/384, (1984), paras 58, 115. 81 Dias T, Coco A, Cyber Due Diligence in International Law (Oxford Institute for Ethics Law and Armed Conflict, 2021), p. 139.

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