Unpacking due diligence in cyberspace

ABSTRACTThere is controversy as to whether due diligence in cyberspace is required as the result of a general rule in international law – namely, that States must not allow their territory to be used for acts contrary to the rights of other States – or because of a voluntary norm of responsible State behaviour, i.e. something that is expected but not legally required.This paper analyses the legal status and content of due diligence in the cyber context, including with reference to position statements published by a growing number of States on these issues.The paper also considers what due diligence measures are expected of States as a matter of policy, in order for them to act responsibly to tackle – on their own territory – malicious cyber activity that may have harmful effects in the territory of other States. The article concludes with recommendations – including that the debate on legal status should not hinder discussion on the implementation of stronger standards on due diligence as a matter of policy. Those standards should be the focus of the discussions on due diligence in the UN's Open-Ended Working Group on developments in the field of information and telecommunications (OEWG).KEYWORDS: Due diligencecyberspaceinternational law AcknowledgmentsThe author would like to thank Elizabeth Wilmshurst KC CMG, Talita Dias, Tsvetelina Van Benthem and the anonymous peer reviewers for their helpful comments on this article as well as the participants at the roundtable held at Chatham House in January 2023 on 'Due Diligence in Cyberspace'.Disclosure statementNo potential conflict of interest was reported by the author(s).Additional informationNotes on contributorsHarriet MoynihanHarriet Moynihan is an associate fellow in the International Law programme at Chatham House. Harriet's research focuses on the role and application of international law in responsible state behaviour in cyberspace. Harriet regularly writes and speaks on these issues, and is the author of Chatham House's research paper The Application of International Law to State Cyberattacks: Sovereignty and Non-intervention.Show lessHarriet's research also focuses on the role of international human rights law in internet governance, including the regulation of online harms and disinformation, as well as on China and international law, and business and human rights. Harriet was a visiting research fellow at the Bonavero Institute of Human Rights, and Mansfield College, University of Oxford, in 2019. Prior to joining Chatham House, Harriet was a legal adviser at the UK Foreign and Commonwealth Office, where she advised on a wide range of public international law issues and represented the UK on legal issues in bilateral and international fora. Before that, Harriet was a competition lawyer at Clifford Chance LLP, where she worked in the firm's London and Singapore offices.