The Modern International Minimum Standard of Protection Against Transnational Cybercrime and Cyber Torts.

Abstract

Under customary international law, host states are obligated to apply a minimum standard of treatment to protect foreign investments. These standards establish the baseline level to protect tangible assets, such as land, factories, and buildings, as well as intangible assets, including intellectual property, licenses, goodwill, and reputation. A modern growth type of asset or investment, known as a "digital investment," also needs special protection that aligns with the nature of cyberspace. The example of this investment includes cryptocurrencies, algorithmic data, AI models, collected data, data ownership in Web3, music NFTs, social media platforms, and e-commerce platforms. This type of sophisticated asset raises questions about the need to develop the current MST to provide effective protection for these digital investments. This dissertation aims to establish a set of modern MSTs that align with digital investments. It starts with identifying the common national cyberspace laws among three jurisdictions: Islamic-civil law (with Saudi Arabia as an example), common law (with the United States as an example), and traditional civil law (with France as an example). Second, these identified principles can develop the principles of customary international law related to cyberspace through the elements of state practice and opinio juris. These developed principles would contribute to creating a normative framework that aligns with the borderless nature of digital assets and investments. Overall, it proposes modern minimum standards that include enacting effective cyber regulations, conducting investigations effectively, including international cooperation, adopting a civil system for cyber redress, exercising cyber due diligence, and prohibiting illegal expropriation of digital assets without compensation.