Research On The Application Of International Law In Cyberattacks

Cyberattacks have gradually become one of the main factors threatening national security.With the escalating conflict over reality of cyber-attacks within the scope of international law in the modern international order,as well as the prohibition of the threat and use of force under the Charter of the United Nations(hereinafter “UN Charter ”)and the provisions of certain restrictions on attacks under international humanitarian law,the particularity of cyberattacks and its difference in contrast with traditional armed attacks have come to the fore.In face of this new form of attack and defence,cyberattacks are bound to face many controversies and difficulties in application of international law.Therefore,when a State suffers cyberattack,what measures are taken to protect the legitimate rights and interests of the State are very important.And at the same time,States need to be in line with the principles of international law.This is also the future of advancing the international rule of law in cyberspace and effectively realising and safeguarding the legitimate interests of States in cyberattacks.Existing cases show that the real-life conflict of cyberattacks within international law is a complex and multidimensional issue that affects national security and international relations.While analyzing the cases,by exploring the relevant rules of cyberattacks and identifying the specific concepts of cyberattacks,it is clear that the international community should formulate international rules for common compliance,so that these attacks can be controlled and will not expand indefinitely and thus injure a large number of innocent people.Today,as cyberspace is gradually becoming an extension of the real world,a new form of warfare using information network technology has attracted extensive attention from the international community.The international community has made some efforts in applying international law on cyberattacks,but due to the complex technical characteristics of cyberattacks and the differences in interests among States,the international community urgently needs to establish a set of reasonable and effective legal norms to deal with this challenge.As a new phenomenon in international relations,cyberattacks have posed unprecedented challenges to existing traditional international law,especially in jus ad bellum.And there are huge differences among governments and academics,both in the qualification of whether they belong to armed attacks and in the exercise of the right of self-defense in the face of conflicts caused by them.The thoughts about humanitarianism triggered by cyberattacks and its impact on jus in bello have made the entire international community aware of the seriousness of the problem and began,on the one hand,to search for ways to regulate it in traditional international rules.On the other hand,States also attempt to get rid of the existing dilemma by formulating new international norms tailored to it.Analyzed from the dimension of jus ad bellum,there has always been controversy in the international legal community regarding the issue of “force” in cyberattacks,including three international legal doctrines of instrumentality theory,target theory,and effects theory,and there is no clear answer to the question of whether cyberattacks meet the thresholds of Article 2(4)and Article 51 of the UN Charter.And in the process of defining cyberattack as constituting “use of force” or“armed attack”,it’s more likely to find an existing dilemma where the technical and legal dimensions of the “force” are difficult to trace back to the responsibility and the test is hard to comprehensively assess.The United Nations report noted that international law,particularly the UN Charter is of significant importance to the use of information and communications technology(hereinafter “ICT”)by States,maintaining peace and stability and promoting an open,secure,peaceful and accessible ICT environment.Although the international community generally recognizes the applicability of international law to cyberspace and affirms the significance of adherence to the principles and provisions of the UN Charter for the maintenance of peace and international security,it is clear that the drafters of the UN Charter did not consider the above scenario in cyberspace to be an appropriate area of endeavor.China’s attitude towards the issue of “force” in cyberspace is clear.From the perspective of maintaining international peace and preventing conflicts,we should focus on how to implement the principles of the peaceful settlement of disputes and the prohibition on use or threat of use of force”.However,there are few settled definitions of “force”,and scholars in various States have different views on how to define “use of force” and “armed attack”.Since “force” is the core of State concern and the highest level of State interest,it constitutes the hard core of international law and is a key aspect of whether the international rule of law can be achieved,including in cyberspace.Any discussion of the issue of force in the context of cyberattacks would ultimately have implications for the application of other areas of international law in cyberspace.Analyzed from the dimension of jus in bello,cybertechnology had not yet emerged when IHL came into being.With the advancement of information technology,cyberattacks have gradually emerged as a new military method,displaying some new features that are clearly different from traditional forms of warfare,and cannot be regulated by simply applying the established rules of international humanitarian law.On the one hand,although the principle of distinction,the principle of proportionality,the principle of military necessity and other rules of humanitarian law are also applicable to cyberattacks,the safeguard function of them are impaired due to many characteristics of cyberattacks,such as the complex attributes of precision strikes and the potential risk of collateral damage.On the other hand,the concepts of “object”and other theories such as the principle of distinction and the principle of proportionality in traditional international humanitarian law will encounter the dilemma of failing to cover all the situations and being exhaustive even contradictory in explaining and defining cyberattacks characterized by high technology and new patterns.As to how IHL defines data,what kind of legal consequences are caused by attacking different types of data,how to comply with the principles of distinction and proportion when attacking dual-use networks and equipment,and how to define the nature of data in the international community,and many other theoretical and practical problems,experts,scholars,research institutes,and judicial organs of various States around the world,from different standpoints and perspectives,and with different interests in mind,have made different or even completely opposing interpretations.interpretation.However,even if it is controversial,the application of jus in bello of cyberattack,especially the issue of neutrality,cannot be separated from the basic principles of international law.In high-tech and new-style cyberattacks,the basic principles of distinction,proportionality and the Martens Clause of traditional international humanitarian law still have room for application and the value of existence.However,it is necessary for us to perfect and interpretate relevant concepts,categories and rules timely.In applying the principle of distinction,it is necessary to attach importance to the status and role of the International Committee of the Red Cross,bear the concept of a community of destiny in cyberspace in mind,and pay attention to the separation of military and civilian objectives,among other important issues.From theoretical and practical analyses,it is difficult to formulate new humanitarian law rules based on cyberattacks.It is more appropriate for the ICRC to take the lead in the cooperative mission in the field of IHL due to its special status and mandate,which can also be accepted by parties to cyberattacks more easily.The principle of neutrality in IHL also faces many challenges in cyberattacks,and it should be fully recognized that cyberattacks have distinctive characteristics in comparison with traditional combat patterns.Thus,new interpretations and expansions of neutrality-related theories and rules should be made,so as to better protect the legitimate status and lawful rights and interests of neutral States.In conclusion,global efforts to regulate cyberattacks are still in their infancy.While there is a growing consensus on how to combat common cybercrimes,there is little public discussion on how to regulate attacks in State-level that may trigger cyberwarfare.The Tallinn Manual,prepared by a team of North Atlantic Treaty Organisation experts led by the United States,provides sensible answers to some of these questions and the jurisprudential basis for their interpretation,while considerations such as pre-emptive self-defense reflect the political preferences of Western States.Although the European Commission’s Convention on Cybercrime is currently the only enforceable agreement that focuses on combating cybercrime,it only covers a small percentage of cyberattacks,and does not include those initiated by governments or their authorized personnel.China,on the other hand,firmly adheres to the provisions and principles of the UN Charter,strongly opposes external intervention,and advocates the use of peaceful means to deal with conflict issues,thereby protecting the security and stability of the Internet world,which shows the development trend of consensus and disagreement,contradiction and camps in the application of international law in cyberattacks.On the whole,the international community is increasingly interested in the establishment of a set of transnational rules and regulations to solve the problem of cyberattacks.People are increasingly concerned about examining the applicability of existing international law and finding new growth points in the process of contemplation,and responding to the cyber wars that may be faced in the future by adopting a diversified approach that improves the existing international law,fully takes advantage of the value of soft law,and creates new treaties in time.As far as China is concerned,it always upholds the international system with the United Nations at its core,the international underpinned by international law,and the basic norms of international relations based on the purposes and principles of the UN Charter,which is China’s consistent position.Cyberspace is an emerging field,but the use of force in cyberspace should still abide by the basic principles of the use of force.With regard to the legal issues arising from cyberattacks,we should start by exploring the characteristics and laws of the field from the perspective of its technical characteristics,and put forward targeted and directional legal proposals.Throughout the process of formulating international rules on cyberspace,universal norms of international relations,humanitarian principles and the basic principles of the use of force should be followed,and the concepts and goals of building a new type of international relations based on mutual respect,fairness,justice,and win-win cooperation should be incorporated throughout.In addition,to promote the formation of a fair,reasonable and transparent international rule system,and to enhance discourse power and influence in the change of the global governance system,it is indispensable to participate in the formulation of legal rules in the field of cyberattacks,and we should draw on the experience of the co-operation reached by mankind in the former “new activity space”,and actively push for the early establishment of the basic legal principles in the field of cyberattacks.The basic legal principles in the field of cyberattacks should be established as soon as possible.After referring to the existing systems and practices of NATO,the EU and China,it is important to adhere to the core spirit of the UN Charter in order to promote the creation of international regulations and clarify China’s position.In order to promote the resolution of cybersecurity issues involving China’s national security,cybersecurity technology protection should be strengthened and legislative analysis should be carried out under the applicable framework of international law,so as to cope with the problem of lagging international legislation on cyberattacks,to regulate the conduct of cyberattacks at both the international and domestic levels and to endeavor to push forward the progress of international legislation on cybersecurity.At the same time,the concept of a community of with a shared future for mankind in cyberspace should be introduced so that all States can face the problem of cybersecurity together.In order to avoid greater harm caused by cyberattacks,China’s strategic choices in cyberspace should be considered while constructing a new ecological practice path in cyberspace to promote the peaceful and orderly development of cyberspace.