The international human rights law theory and practice traditionally follow the path of distancing human rights from the state of necessity under general international law. The existence of derogation clauses contained in major human rights treaties excludes the possibility for States parties to invoke the customary rule on necessity to excuse non-compliance with the obligations under such treaties (the narrow distancing approach). Presently, a broader distancing approach, covering human rights obligations outside the treaties’ derogation regimes, is evolving employing certain alternative grounds for departure from human rights obligations. The article argues that the way the broader distancing approach evolves raises doubts as to its conformity with its intrinsic rationale. To address this concern a due account should be taken of the pro homine reasoning for distancing human rights from the state of necessity. The present paper is a part of a larger project “Circumstances precluding wrongfulness of conduct: the analysis of functional role and applicability parameters in the framework of International Human Rights Law” supported by the Russian Foundation for Basic Research (RFBR Grant No. 18-011-00660).

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As evidenced by the preliminary results of work of the UN Open-ended Working Group on developments in the field of information and telecommunications in the context of international security, currently the states have different views towards legal regulation of cyberspace. A number of states (mostly Western) argue that the existing international law sufficiently addresses the relationships in the area, and they call on all interesting parties to express their views on how the law is applied, while other states, like Russia, China and Venezuela claim that there is a legal vacuum as to the regulation of cyberspace and propose starting to globally negotiate a new binding legal instrument. This paper explores the reasons for the states to insist on their views on the need for a new cyber treaty and demonstrates that the respective disagreement between states cannot be explained neither by a global interest in maintaining the state of legal uncertainty about the proper sources or rules, nor by the lack of choice of the parties to the debate regarding the tools to address such uncertainty. The authors argue that the explanation lies in the correlation between corresponding substantive and instrumental stances of both sides of the debate, since the states’ preferences regarding the appropriate rules can be more fully and effectively implemented within the respective instrumental solutions and such solutions provide their adherers with more tools to control the processes of their implementation.

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The obligation of due diligence in international law corresponds to a generally recognized international legal duty of States to not let their territory to be used harmfully for other States. Recently, the attention towards this obligation in the theory and practice of international law has increased in the context of the discussion of application of existing rules of international law to cyberspace. In the light of recognizing the applicability of the general international principle of due diligence to the behaviour of States in this field, the questions arise of its effectiveness and sufficiency and of whether the development of a specific standard adapted to the peculiarities of cyber relations is required. The present paper deals with assessing the advantages and disadvantages of maintaining and using a general international legal standard for due diligence in cyberspace and the corresponding advantages and disadvantages of the prospect of elaborating a lex specialis standard. The main idea is that in the absence of a specific due diligence standard in cyberspace, there is no legal vacuum regarding the responsibility of a State in relation to an act that cannot be attributed to it, since there is a general international legal principle of due diligence. Besides, this principle has several advantages over potential special regulations that may appear in the future. In case of drafting such specific rules, it is necessary to proceed with caution and to take into account the shortcomings of special legal regulation.