The Value Dimension Of The Regulation Of Cyberwarfare By International Law

Confrontation and conflict are the states among nations that are difficult to avoid in the international community under anarchy.Under the background of the explosive development of telecommunications and communications technology,the development and application of related technologies has given a new face to confrontation and conflict.As an extreme state of political confrontation,the traditional war has been effectively regulated in the form under the existing international law system.However,as a new form of conflict,cyberwarfare has both similarities and characteristics with traditional war.Under the mutual relationship between the attributes of cyberspace and space,cyberwarfare has a broad connotation and extension,which makes the regulation of international law full of uncertainty.Compared with the relatively perfect international norm system in real space,there is a large-scale rule vacuum in cyberspace,and the hierarchy of international relations in real space gradually fails under the rapid change of telecommunications and communication technology.This "natural state" constitutes the realistic inducement of cyberwarfare.It is precisely because the social basis of cyberwarfare overlaps with that of international law that the application of international law in cyberspace is legal and legitimate,which is also the consensus of the international community at present.However,from the micro perspective of the application of rules,whether from the perspective of general international law or special international law,the application of international law is still in the stage of academic debate.Although many scholars have made a variety of explanations,it is difficult to form a further unified understanding in actual application and formulation of rules.On the surface,this practical dilemma of international law is caused by different countries’ different understanding of cyberspace,cyberwarfare,cyber sovereignty,and other concepts,but the deeper reason is the openness and fragmentation of international law itself and the limitation of its implementation mechanism.The regulation of cyberwarfare by international law is not only the function of international law as law but also the specific effect it needs to be conducted on a specific social basis.Although the micro legal rules are the direct carrier of the function and effect,according to the principle of effectiveness,the source and final effect of its regulatory purpose are inseparable from the existence of the value of the law.Furthermore,from the perspective of the basic categories of international law,the subject theory,the object theory,the axiology,the ontology,the operation theory,and the relevance theory of international law are interrelated.This horizontal category system adapts to the social basis of international law and also echoes with its fragmentation.As far as the dilemma in the regulation of international law of cyberwarfare is concerned,the fundamental reason is that the changes in the relationship between the subject and object of international law in the current background are not reflected in the noumenon.As the underlying logic of order,security is the cornerstone of the value system of international law.In the order value of international law,the juxtaposition of peace and security shows that the international community’s pursuit of security is still in the primary stage of "no violent conflict".Although international human rights law and international humanitarian law are constantly expanding the connotation of security value,the increasingly prominent non-traditional security threats also make security no longer only realized through peace.However,the existing value system of international law is more a reflection of international relations since the Second World War.When the democratization of international relations encounters difficulties and the emergence of cyberspace brings changes to the international power structure,although the subject and object of legal relations in cyberwarfare have changed to some extent,the status of the state as the basic subject and its logic of distribution of security risks brought by cyberwarfare have not fundamentally changed.At the same time,the international order established by international jus cogens is constantly strengthening the dominant position of passive security,which makes the dominant value of international law on the regulation of cyberwarfare remain at the level of passive security,whether in the level of ought to be or in the level of reality.As an idea,the function of value is to guide the behavior and logic of the subject.When passive security occupies the dominant position of the security value of international law,it is obviously unable to cope with the development of the social basis of international law in the Internet age,and even will cause the Value Dilemma of international security.On the one hand,it is reflected in the shaping of passive security to national security concepts and security strategy.Passive security based on Neo-realism and Neo-liberalism is constantly limiting the scope of national security and weakening the weight of international general security in national security concept,which intensifies the security competition in the international community.On the other hand,it is also dissolving the social basis for the formation of international security consensus and hindering the formation of collective identity on international security.Moreover,the close connection between cyberspace and real space in the Internet age also promotes the reform and development of the social basis of international law,making cyberspace security and national cyber security more and more inseparable,while passive security obviously fails to reveal the dynamic development of security subjects and security threats in the Internet age,with obvious lag.As for the regulation of cyberwarfare,passive security,as an order pursued by international law,can not eliminate the dilemma of security competition under the Neo-realism,nor can it solve the dilemma of security cooperation under the Neo-liberalism.On the contrary,it will aggravate this dilemma and constantly strengthen the social basis of cyberwarfare,which is contrary to the goal of regulation.At the same time,taking passive security as the dominant value of regulating cyberwarfare does not follow the causality of cyberwarfare.Facing cyberwarfare as a kind of social risk,passive security is only a negative response to the result of risk rather than an active regulation of the root cause of risk.This kind of negative response is doomed to go behind the development of science and technology.The development of human rights is the reflection of the awakening of human subjectivity.To a certain extent,it reflects the development and progress of human society in many aspects and has a certain synchronization with the development of the value of international law.The new interaction between human rights and sovereignty in the Internet age reveals the close relationship between individual security and national security,especially the security of human beings as a whole.As a successful experience of security cooperation in real space,European security cooperation within the EU demonstrates the feasibility of the security community to realize individual security and overall security from the perspective of the interaction between regional security and national security.All these constitute the basis of the security value turn of international law in the Internet age,and the specific connotation of active security has been further clarified.In the regulation of international law on cyberwarfare,the shift from passive security to active security is legitimate.Through the theory of security community in Constructivism,active security will continuously weaken the political basis of conflicts in cyberspace security and establish a political mutual trust to unify the differences of national security concept,cyberspace security strategy and the application of international law in cyberspace.The criticism of Constructivism on Neo-realism and Neo-liberalism just reveals the tendency of over reliance on instrumental rationality in the existing international system based on international law.The shaping of the identity of the subject’s role in international relations by active security will reconcile the instrumental rationality and value rationality in the international system to strengthen the effectiveness of the international law.The shaping of collective identity and the construction of a security community by active security is just conducive to consolidating the social basis of international soft law,which can make up for the lag of international hard law in dealing with cyberwarfare as an emerging thing.In order to change the dominant value of international law regulation of cyberwarfare from passive security to active security,we need to promote the formation of international security consensus through an in-depth understanding of security threats in a risk society and build the concept of common interests and common threats on the basis of this consensus.Then,from the perspective of the integrity of human society,it pursues to avoid the security threats caused by the superposition of traditional security risks and nontraditional security risks with a sense of community.As a responsible great power rising peacefully,China is also an important participant in cyberspace.It should actively participate in the regulation of cyberwarfare,and respond to the difficulties faced by the regulation of international law of cyberwarfare with its own foreign policy and international law practice.China has proposed an idea of a community of shared future for mankind,its security perception is not only homogeneous with the connotation of active security which reveals the unity of the integrity of international security and the differences of national security but also explains the importance of the security community to resist global security threats.Guided by the idea of a community of shared future for mankind,China can build a new type of power relations in the Internet age through the new power concept.From the perspective of security threat,security subject and security content of cyberwarfare,China can promote the formation of consensus among countries on active security pursuit,and promote the value turn of international law regulation of cyberwarfare with the actual international order.At the same time,it also promotes the development of the security value of international law through the combination of human subjectivity and the value of "Humanization" of international law.From the perspective of the basic categories of international law,the value of international law needs to be reflected through its ontology.According to the functional orientation of the value of international law in its regulation practice and the transmission mechanism based on the principle of effectiveness,China should constantly construct and perfect the international law system of cyberwarfare regulation along the path of law localization,regionalization,and globalization through the interaction between the great powers politics and the international rule of law.