CAN THE CONCEPT OF DUE DILIGENCE CONTRIBUTE TO SOLVING THE PROBLEM OF ATTRIBUTION WITH RESPECT TO CYBER-ATTACKS CONDUCTED BY NON-STATE ACTORS WHICH ARE USED AS PROXIES BY STATES?

Abstract

This article aims to explore whether the concept of due diligence can contribute to solving the problem of attribution with respect to cyber-attacks conducted by proxies. The relevance of this article is evident from the fact that there are recent developments in State practice concerning the drafting of international cyber law rules, including the duty of due diligence, though still many questions remain open and such developments lack clarity and comprehensiveness.                                                                   

To reach the aim, this article is divided into three main sections, each of which deals with a particular issue necessary to answer for the final conclusion formulation. I section briefly explores the concept of State responsibility and attribution applicable in the cyber domain. It shows the issues and challenges, highlights the problem, and suggests that due diligence might be an answer to the old problem. II section analyzes due diligence applicability. Research of new State practice is done, scholars work, and doctrine is analyzed and applied to prove the applicability and binding nature of the concept. III section describes conditions of due diligence under general international law and then goes deeper into the essence of due diligence conditions in the cyber domain. Key points are analyzed, and issues are highlighted.

Analysis has confirmed that, firstly, the State responsibility issue exists because old attribution rules are not suitable for cyber-domain. Then the State practice research, scholars' work analysis, and doctrine interpretation have confirmed that due diligence is applicable and is binding. Finally, peculiarities of cyber due diligence were studied, and practical application possibility was discussed. The conclusion is that even though further development of the concept domain specifics is urgently needed, the concept still may be one of the possible contributors to solve the State responsibility issue.