The Effects Doctrine As a Basis for Jurisdiction of States in Cyberspace

Abstract

An important feature of cyberspace is its cross-border nature, due to the absence of physical borders and the decentralization of infrastructure and users. Due to the fact that all transactions in cyberspace potentially cross state borders and have an impact on objects and entities in various states, the consequences of certain actions can be felt in many jurisdictions. At the same time, the traditional links between the offense and the State on the basis of territoriality, nationality or the need to protect fundamental national interests may be absent. In such cases, jurisdiction is proposed to be established on the basis of the doctrine of consequences. However, the objections of a number of States to such extraterritorial dissemination of foreign legislation and the uncertain nature of the consequences doctrine have raised questions about the conformity of the consequences doctrine with international law. Based on the analysis of international treaties, practices and positions of States and international organizations, scientific research and other doctrinal sources, the following conclusions were drawn. The doctrine of consequences is increasingly being recognized as a principle of establishing the jurisdiction of States through the formation of a rule of customary international law. However, objections to the application of this doctrine, especially in cases of establishing jurisdiction in criminal cases, continue to be expressed. The generally recognized conditions for the application of the consequences doctrine are as follows: a State enacting legislation based on the consequences doctrine must have an internationally acceptable interest in this; the consequences must be direct, predictable and significant; there must be no infringement of the legitimate interests of other States or foreign persons who do not have a significant connection with the State that claims to implement such jurisdiction. Other mechanisms should be considered to limit the scope of actions falling under the jurisdiction of the State: apply the principle of targeting, which requires an assessment of the actions that a person has taken in order to fall or not fall under the jurisdiction of the State; apply special liability measures related not to the imposition of sanctions on persons engaged in illegal behavior, but to the creation of obstacles to the implementation of such activities, for example, to block access to information that is illegal from the point of view of the State. A combination of such mechanisms could prevent undesirable activities in a more balanced way and not create unjustified risks for cyberspace actors.