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

Tebenkova Viktoriya Nikolaevna Postgraduate Student, Department of International Law, Kutafin Moscow State Law University 123001, Russia, Moscow, Moscow, Sadovaya-Kudrinskaya str., 9 vikivik.teb@gmail.com Other publications by this author

Introduction

The peculiarities of cyberspace, which is a globally interconnected digital environment, including hardware and software, data and users, as well as logical relationships between them, lead to the fact that the influence of certain activities can extend far beyond the territorial location of the person who carries out such activities.

In one of the works devoted to the regulation of cyberspace, for the purpose of illustrative illustration, it is proposed to present a "map of the consequences" of any actions in 1450, 1950 and at the present time ^{[1, p.1381]}. In 1450, the consequences of any actions would hardly have spread far from the place where they were committed. Changes in communication and transport technologies, as well as an increase in border crossings and cross-border transactions, led to the fact that in 1950 the consequences would have had a wider geographical coverage, however, for the most part they would still have remained limited to a certain territory ^{[1, p.1382]}.

A consequence map showing events and transactions currently taking place in cyberspace would look very different, since all transactions in cyberspace potentially cross state borders and can affect objects and subjects in various jurisdictions ^{[1, pp.1382-1383]}.

Such consequences can have different scales and affect both more private interests, for example, when publishing information on the Internet that defames the honor, dignity, business reputation of a person violating copyrights, and public interests, for example, in the case of obtaining unauthorized access to information databases of large corporations or the state.

The main difficulty in suppressing such activities and imposing sanctions on those who carry them out is that there may not be a sufficient link between the offense, the offender and the place of origin of the consequences necessary to establish jurisdiction based on traditional principles of territoriality, nationality and protection.

In relation to such cases, it is proposed to establish jurisdiction based on the doctrine of consequences. 

However, the objections of a number of States and scientists ^{[2, p.238]} against such extraterritorial dissemination of foreign legislation and the uncertain nature of the doctrine of consequences have raised questions about the conformity of the doctrine of consequences with international law.

The doctrine of consequences is considered mainly in the works of foreign researchers. Among the scientists, Cedric Ryngaert can be distinguished, who analyzed the doctrine of consequences in general international law, as well as in relation to the establishment of jurisdiction in antitrust cases, Thomas Schultz, who studied the use of the doctrine of consequences in regulating Internet content, the authors of the Tallinn Manual 2.0 on International Law Applicable to Cyber Operations, edited by Michael Schmidt (Michael N. Schmitt), who reflected the peculiarities of establishing jurisdiction in criminal cases in cyberspace.  

In the Russian scientific literature, the doctrine of consequences is explored in the works of A.R. Kayumova, who analyzed criminal jurisdiction in international law, as well as in the works of L.V. Terentyeva, who considers the doctrine of consequences as an extraterritorial manifestation of state jurisdiction in international and national law of individual states.

At the same time, a comprehensive study of the doctrine of consequences in international law as a whole, as well as in establishing the jurisdiction of States in cyberspace, has not been presented in Russian science, which justifies the relevance of this article.

The subject of this study is the norms of international agreements and national laws governing relations to establish jurisdiction based on the doctrine of consequences, as well as materials and judicial practice, doctrinal sources on the topic of the article.

The purpose of the article is to construct the concept of establishing state jurisdiction based on the doctrine of consequences for regulating relations on the use of cyberspace and is achieved by solving the following tasks: analysis of the institution of State jurisdiction in international law; identification of the history of the formation and current state of the doctrine of consequences in international law; formulation of restrictions on the establishment of jurisdiction based on the doctrine of consequences; designation of mechanisms for limiting extraterritorial the extension of jurisdiction based on the doctrine of consequences.

Jurisdiction in international law

The term "jurisdiction" has no normative basis in international law. At the doctrinal level, the jurisdiction of States is usually understood as a manifestation of sovereignty and is defined as the ability of States to prescribe and enforce the norms of law ^{[3, p.19]}.

The jurisdiction of States is manifested through the establishment of rules of conduct (legislative jurisdiction), the implementation of procedures for detecting violations and determining the consequences of violations (judicial jurisdiction), and through the enforcement of consequences for alleged violations (executive jurisdiction) ^[4].

Emphasizing the connection of jurisdiction as a manifestation of State sovereignty with international law, designed to coordinate the manifestations of the will of various States, one can cite the definition of Professor Malcolm Shaw According to the scientist, jurisdiction concerns the powers of a State under international law to regulate or otherwise influence people, property and circumstances through legislative, executive or judicial measures and reflects the basic principles of state sovereignty, equality of states and non-interference in internal affairs ^{[5, p.813]}.

Thus, international law should ensure that States establish and exercise their jurisdiction not in an arbitrary manner, but taking into account the interests of other States and the principles of non-interference and sovereign equality of States, and do not declare their jurisdiction in cases in which this is an unjustified encroachment on the sovereignty of another State ^{[6, p.6]}.

In this regard, certain principles of jurisdiction have been developed in international law, demonstrating the existence of legitimate interests of the State in establishing its jurisdiction in a particular case on the basis of sufficient connection with the relevant person, property and actions ^{[7, p.275]}: territorial principle; national principle; principle of protection; universal principle.

The doctrine of consequences, initially considered as a subspecies of the territorial principle, today stands out as an independent principle of jurisdiction, which has its own specifics and important significance in the context of global communications provided by modern information and communication technologies ^{[8, pp. 206-207]}.

A number of authors associate the origin of the doctrine of consequences in international law with the decision of the Permanent Court of International Justice (hereinafter – the ICJ) in the Lotus case (Lotus (France v Turkey), PCIJ Series A, No. 10, 7 September 1927) ^{[9, p.15]}, which stated that: "there is no norm international law, which prohibits the State to which the ship belongs, on which the consequences of the offense took place, from considering the offense as committed on its territory and, accordingly, to bring the offender to justice."

However, a different opinion is more fair, according to which in this case the PPMP referred to the principle of objective territoriality that existed at that time ^{[6, p.38]}, and also considered the nature of the extraterritorial prescriptive jurisdiction of the State, noting that the State does not require a permissive norm of international law to extend the effect of its laws to persons, property and actions outside outside its territory, and it is only required not to violate the restrictions that international law imposes on its jurisdiction.

The doctrine of consequences, in turn, originated and developed within the framework of U.S. antitrust law in the middle of the 20th century and was aimed at regulating activities carried out outside the United States, but the consequences of which arose in the United States.

Thus, in 1945, the Second Circuit Court ruled in the Alcoa Antitrust case (United States v. Alcoa, 148 F.2d 416 (2d Cir. 1945) that U.S. courts have jurisdiction over foreign conduct affecting the United States, stating that: "any State may hold foreign persons accountable for activities that carried out outside State borders, which entails consequences on the territory of the State and which the State considers illegal."

The growth of world trade and services, the globalization of world trade, an increase in the number of communication channels, mass media, including the advent of the Internet, contributed to the fact that various states increasingly began to refer to the doctrine of consequences to justify the establishment of jurisdiction in various fields: in antitrust law ^{[6, pp.82-84]}, legislation on the securities market and disputes related to the posting of information on the Internet ^{[7, p.278]}.

For a long time, examples of legislative and judicial practice based on the doctrine of consequences related to the United States and the countries of the European Union. However, today the doctrine of consequences is reflected in the law of an increasing number of States with different legal systems.

One example is China, which until recently adhered to the concept of limiting extraterritorial jurisdiction. The increasing role of China in world trade has led to the emergence of provisions in the legal system of the state extending the effect of Chinese legislation beyond territorial borders.

The doctrine of consequences is reflected in the Antitrust Law adopted in 2007, which applies to monopolistic acts committed outside China that eliminate or have a limiting effect on competition in China's domestic market, as well as in the 2019 amendments to the Chinese Securities Law providing for liability in the event that the placement of securities and trading They violate the order in the internal market of the People's Republic of China outside the People's Republic of China and infringe on the legitimate rights and interests of domestic investors ^[10].

In Russian law, according to L.V. Terentyeva, the doctrine of consequences manifests itself in disputes arising from harm that took place outside the Russian Federation, but the harmful consequences of which arose on its territory (paragraph 4 of part 1 of Article 247 of the APC of the Russian Federation), in relation to activities taking place on the territory of a foreign state, on extradition the operator of a search engine for links that allow access to information on the Internet (clause 11, part 3 of Article 402 of the CPC), as well as when distributing online advertising aimed at attracting the attention of consumers located on the territory of the Russian Federation (clause 2, part 3 of Article 402 of the CPC) ^{[11, pp. 172-173]}

Due to the increase in the number of State practice in research on issues of extraterritorial jurisdiction, the doctrine of consequences began to stand out as an independent principle of State jurisdiction.

In particular, in the Report of the UN International Law Commission dealing with issues of extraterritorial jurisdiction, with reference to the existence of State practice, this doctrine is highlighted as the principle of jurisdiction in civil and criminal cases ^{[7, pp.275-279]}.

The International Bar Association, in a study on extraterritorial jurisdiction, pointed out that one or another form of the consequences doctrine is applied in almost all jurisdictions, noting, however, that both the meaning and application of the doctrine vary significantly, and in some cases are insufficiently developed ^{[12, p. 12]}.

In a Comprehensive study of cybercrime prepared by the United Nations Office on Drugs and Crime, the doctrine of consequences, along with the objective territorial principle, was highlighted as the principle providing the most effective basis for jurisdiction in criminal cases of cybercrime ^{[13, pp. 275-279]}.

Despite the fact that there are no fundamental differences between the criminal and civil jurisdiction of States in terms of restrictions established by international law ^{[14, p. 427]}, the problem of applying the doctrine of consequences in order to establish jurisdiction in criminal cases can be identified as a separate issue. Such a separation is due to the fact that the exercise of jurisdiction in criminal cases involves the application of more serious adverse consequences for the violator, in connection with which the establishment of jurisdiction in criminal cases causes the most diplomatic protests and, accordingly, is more fully regulated by international law ^{[14, p. 427]}.

To date, the doctrine of consequences has not been widely reflected in international conventions dealing with the establishment of jurisdiction in criminal cases.

As an exception, it is possible to note subparagraph "a" of paragraph 1 of article 27 of the UN Convention on the Law of the Sea, which provides that the criminal jurisdiction of a coastal State may be established if the consequences of the crime extend to the coastal State.

Professor A.R. Kayumova believes that the doctrine of consequences has also been indirectly consolidated in a number of conventions ^{[15, pp.117-118]}. In particular, the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 states that a State may exercise jurisdiction over a person who, outside its territory, entered into a criminal conspiracy, attempted to commit an offense, or carried out aiding, abetting, assisting or giving advice in order to subsequently commit an offense on the territory of the State recognized as such in accordance with paragraph 1 of article 3 of this Convention. Similar grounds allowing States to establish jurisdiction in cases where a person outside the territory of a State carries out illegal actions in order to spread the consequences of these actions on the territory of the State are contained in the UN Convention against Transnational Organized Crime of 2000 and the UN Convention against Corruption of 2003.

According to A.R. Kayumova, the fact that there is no doctrine of consequences in the 2001 Convention on Computer Information Crime is inexplicable, since "the very nature of computer crimes is such that one incorrect set of computer keyboards on one side of the planet can lead to a failure of some local network and cause serious damage on the other side of the globe" ^{[15, p.119]}.

It can be assumed that the absence of such provisions in this convention is due to the insufficient validity of the doctrine of consequences and the small amount of State practice in exercising jurisdiction over cybercrimes at the time of work on the draft convention.

At the same time, difficulties with the uncertain nature of the doctrine of consequences lead to the fact that States are still very cautious about including this principle in draft international treaties. This is evidenced by the fact that during the development of the draft UN Convention on Cybercrime, the provision on the possibility of establishing jurisdiction based on the doctrine of consequences was excluded from the negotiating document due to concerns of a number of States, for example, the countries of the Caribbean Community ^[16], Georgia ^[17], Japan ^[18], regarding the possibility of excessively broad interpretations of this the principle and unjustified expansion of the extraterritorial jurisdiction of States.

Note, however, that all the previously mentioned conventions contain provisions that States can establish their jurisdiction in accordance with their domestic legislation, which expands the jurisdictional grounds and allows referring to the doctrine of consequences if it is enshrined in national law.

The establishment of jurisdiction over the consequences of certain activities may also be conditioned by reference to other principles of jurisdiction, in particular the need to protect citizens (passive national principle), the State itself (principle of protection) or the inclusion of consequences in a necessary element of a crime (objective territorial principle).

As an illustration, we can consider the decision of the French court on the claim of the International League against Racism and Anti-Semitism (LICRA) against Yahoo (Yahoo! Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme 145 F. Supp. 2d 1168 (N.D. Cal. 2001) (hereinafter referred to as the Yahoo case) on the adoption of measures aimed at preventing the sale of Nazi-related items on the Yahoo auction website.

The emergence of this dispute is due to the fact that an advertisement for the sale of goods with Nazi paraphernalia was posted on the American website of Yahoo. Despite the fact that the actions for the placement and sale of goods, as well as the storage of information and images took place in the United States, French citizens had access to the site and the opportunity to purchase goods on it, in whose territory the demonstration and sale of such goods was a violation of the law.

The French court found itself competent to consider the dispute with reference to the fact that the damage caused by Yahoo's behavior was caused in France. The court pointed out that by allowing the demonstration of these goods and the possible participation of Internet users in France in such an exhibition/sale, Yahoo is committing an offense in France.

The French Court did not analyze the theoretical issues of establishing jurisdiction in this case. In the case of such an analysis from the point of view of international law, the French court would rely on the doctrine of consequences, or on objective territoriality ^{[19, p. 811]}: if the behavior in question is interpreted as providing information available on computer screens in France, then it should be based on the principle of objective territoriality, and if as a result of uploading information to A website abroad, accessible to Internet users in France, is based on the doctrine of consequences ^{[20, p.150]}.

Such an example demonstrates that the distinction between the doctrine of consequences and other principles of State jurisdiction often falls within the scope of national law and depends on the specific wording of legislative norms. In addition, the national legislator may regulate the consequences of certain activities by referring to other principles of jurisdiction recognized in international law, but actually applying the doctrine of consequences.

In this regard, one can agree with Professor Cedric Ringart, according to whom, for the legitimate establishment of the territorial jurisdiction of States under international law, it is sufficient that either a criminal act or its consequences take place on the territory of the State, regardless of the national qualification of the act or consequences (in practice, usually consequences) as an integral element of the crime ^{[6, p.78]}.

Conditions for the application of the doctrine of consequences

The active application of the doctrine of consequences, especially in relation to cyberspace, can contribute to an excessively wide spread of extraterritorial jurisdiction of States and lead to a conflict of jurisdictions.

Thus, posting any information on a website on the Internet means that each State in whose territory the information will be available is able to justify its jurisdiction over this site on the basis of the doctrine of consequences due to the fact that any person who has access to the network will be able to receive information.

Some researchers note that this problem is exaggerated ^{[19, p.813]}, since the effectiveness of state regulation depends on the ability to stimulate or compel compliance with the law, that is, to exercise law enforcement jurisdiction. In turn, law enforcement jurisdiction is limited to the territory of the State and can be carried out outside it only by virtue of a permissive rule of international law or the consent of the State.

In this regard, law enforcement jurisdiction itself acts as a restrictive factor that allows cyberspace entities to worry about the need to comply with the laws of only those States that can exercise effective law enforcement jurisdiction over these persons, that is, States where the entities are located and/or have assets ^{[21, pp.198-200]}.

Such arguments do make sense. However, in our opinion, law enforcement jurisdiction cannot be considered as a universal means limiting the potentially widespread application of the doctrine of consequences, for a number of reasons.

Firstly, such an approach does not correspond to the essence of legal regulation aimed at streamlining public relations by creating clear and precise rules of conduct.

Secondly, cyberspace actors cannot know the legislation of all countries of the world, while a high degree of mobility can lead to the fact that a previously missing connection between the state and a person may arise and lead to the possibility of effective enforcement of the decision. This problem is especially relevant for individuals who more often make cross-border movements and, unlike companies, do not have the opportunity to conduct a proper analysis of foreign legislation when moving to another jurisdiction.

Finally, in private international law there is the institution of recognition and enforcement of foreign judgments, and in international criminal law there are such forms of legal assistance as the extradition of persons for criminal prosecution or execution of a sentence (extradition), as well as the implementation of criminal prosecution on behalf of another State. Such forms of international cooperation allow the State to exercise executive jurisdiction in foreign countries in which a person is located or has assets.

In this regard, the establishment of jurisdiction based on the doctrine of consequences should be limited not only by the complexity of the exercise of executive jurisdiction, but also comply with the principles of reasonableness, fairness and take into account the interests of other States. 

The authors of the Tallinn Manual 2.0 on International Law Applicable to Cyber Operations identify the following generally accepted conditions for the application of the consequences doctrine.

First, a State enacting legislation based on the doctrine of consequences should have a clear and internationally acceptable interest in doing so.

Secondly, the consequences should be sufficiently direct, predictable and substantial to justify the extension of the State's legislation to foreign citizens outside its territory.

Thirdly, the exercise of jurisdiction based on the doctrine of consequences should not unduly infringe on the interests of other States or foreign citizens who do not have a significant connection with the State that claims to exercise such jurisdiction ^{[22, p.65]}.

Difficulties arise in the practical application of the consequences doctrine in view of the evaluative concepts of "internationally acceptable interest" and "direct, predictable and significant consequences", the interpretation of which remains in the hands of national legislative and law enforcement authorities.

This problem can be demonstrated especially clearly by the example of cases on the posting of information on the Internet, which is associated with different degrees of freedom of expression in different countries ^{[23, p.88]}.

In the previously mentioned Yahoo case, differences in French and American legislation led to the fact that in France the sale of items with Nazi symbols was an illegal act, whereas in the United States these actions were protected by the First Amendment to the US Constitution, which guarantees freedom of speech and expression. In another case, a German court prosecuted an Australian citizen for publishing information related to Holocaust denial on a website located on an Australian server ^{[8, pp.8-10]}.

In the above-mentioned cases, differences in the domestic legislation of States led to the fact that the same actions of a person were considered permissible in one jurisdiction, and in another they were a violation of the law. At the same time, a person engaged in such activities could rely on the permissible nature of these actions in the jurisdiction in which they were primarily located.

One of the ways to solve the problem of overlapping jurisdictions and reduce the negative consequences for the violator, who may not have known about the violation of the legislation of any State, is the application of the so-called targeting principle, also known as the targeting principle. The essence of the targeting principle lies in the fact that actions that a person purposefully committed in order to fall under or, on the contrary, avoid falling under the jurisdiction of any State are evaluated ^{[24, pp.239-240]}.

Variations of the targeting principle can be found in the legislative practice of various states: for example, in the Russian Federation, the Federal Law "On Advertising" applies to relations in the field of advertising, regardless of the place of its production, if advertising is distributed on the territory of the Russian Federation, and the Law "On Mass Media" applies to foreign media in terms of distribution their products in the Russian Federation.

However, a clearer elaboration of the content of the targeting principle relates to the jurisprudence of national courts that form legal positions on specific cases. Applying the principle of targeting, the national courts of States recognized actions aimed at creating consequences on the territory of the State, for example: providing subscriptions to online magazines to users of the state (Gutnick v. Dow Jones & Co. Inc. ^[2001] VSC 305.), distribution of targeted advertising to users of a certain country (Yahoo case).

The application of the targeting principle is a fairly effective means of reducing the potential number of jurisdictions. In addition, in this case, reasonable regulation of the activities of content providers is carried out, which, on the one hand, may worry about compliance with the legislation of only those states to which they send their content ^{[18, pp. 817-818]}, on the other hand, they cannot simply move to a more "soft" legal regime, as before by sending information to the same territory ^{[18, pp. 817-818]}.

However, the high estimated degree of what actions will be considered by a particular legislator and law enforcement officer as directed at the territory of the state leads to the fact that the principle of targeting does not allow for proper legal certainty: whether the language or currency used on the website will be taken into account, whether the provisions of the rules and conditions of use of the web are relevant-the site, is it enough to take statements from users of the website that they are/are not under a certain jurisdiction, is it necessary to filter users, etc. ^{[18, p. 818]}?

This problem is especially relevant for establishing jurisdiction in criminal cases because of the need for greater legal certainty in terms of indicating which behavior will be considered punishable. 

Due to the fact that an unambiguous and exhaustive consolidation of the criteria for the application of the doctrine of consequences is hardly possible in view of the evaluative concepts underlying it, a number of experts suggest completely abandoning the doctrine of consequences in cases related to the consideration of disputes in cyberspace and applying exclusively the principles of nationality and objective territoriality to consider such cases, especially in cases of establishing jurisdiction in criminal cases ^{[25, p.88]}.

However, as mentioned above, the distinction between the doctrine of consequences and other principles of establishing jurisdiction is often contained in the field of national law, and broad interpretations of these principles lead to a result similar to the application of the doctrine of consequences.

One of the ways to reduce the risks of unreasonable application of the consequences doctrine is proposed by Professor Thomas Schultz, according to whom the regulation of misconduct in cyberspace should be carried out through special liability measures related not to imposing sanctions on persons who carry out undesirable behavior, but to creating obstacles to the implementation of such activities ^{[18, p. 818]}. Such an obstacle should be a means of blocking access to information that is illegal from the point of view of any State.

In his opinion, such content filtering will, on the one hand, prevent access to information that any state considers illegal, on the other hand, it will not create negative consequences for persons carrying out legal activities within their jurisdiction.

It should also be noted that in this case, there is no question of establishing extraterritorial executive jurisdiction, since states implement blocking at the level of the receiving provider, which is under the territorial jurisdiction of the state.

The negative side of this method is the territorial fragmentation of the Internet into national cyberspaces, which contributes to reducing opportunities for freedom of expression, as well as for economic, political, social and cultural exchange ^{[9, p.96]}.

Thus, an unambiguous solution capable of reconciling the positions of all interested parties in establishing jurisdiction in order to regulate the consequences of certain activities in cyberspace has not been found at present. 

Conclusions

The decentralized cross-border nature of cyberspace is likely to lead to the increasingly widespread establishment of extraterritorial jurisdiction of States in order to regulate cyber activities that have a significant effect on the territory of the State.

For this reason, 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. The generally recognized conditions for the application of the doctrine of consequences are as follows: first, the State enacting legislation based on the doctrine of consequences should have an internationally acceptable interest in this; secondly, the consequences should be direct, predictable and significant; thirdly, when applying the doctrine of consequences, the legitimate interests of others should not be infringed States or foreign persons who do not have a significant connection with the State that claims to exercise such jurisdiction.

However, the question of the application of the doctrine of consequences in relation to cyberspace remains not fully understood, and therefore this principle is applied with caution, especially when it comes to establishing jurisdiction in criminal cases.

Using the consequences doctrine, States should aim to develop clear criteria for its application in order to avoid violating the sovereignty of other States, as well as to develop clear rules of action for private actors who, by carrying out cyber activities, should not be at risk of serious adverse consequences in a jurisdiction to which their cyber activities were not directed and which they did not limit They might have known.

Such goals can be achieved through the development of national legislation and consistent judicial practice based on the principles of reasonableness and fairness, taking into account the positions of all stakeholders. In addition, it is worth considering other ways to reduce the negative consequences of extraterritorial jurisdiction, for example: to 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 a certain State; to apply special liability measures related not to the imposition of sanctions on persons engaged in illegal behavior, but with the creation of obstacles to the implementation of such activities. Such an obstacle is the means of blocking access to information that is illegal from the point of view of the State.

Without compliance with these requirements, the doctrine of consequences approaches universal jurisdiction, based, however, not on the need to combat crimes whose commission affects the interests of the entire international community and encroaches on the international legal order as a whole, but on the desire to spread its own legislation as a universal means of regulating relations around the world.