Study On The Application Of Countermeasures Under The State Responsibility System In Cyberspace

Recent years have witnessed the galloping pace of development of Internet technology.The accompanying consequences are that security incidents in cyberspace occur frequently in recent years,and transnational cyber attacks occur from time to time.At the same time,the western world plays up threats such as "cyber warfare" and focuses on the right of self-defense and the right to resort to war.But the threshold of what constitutes "use of force" in cyberspace has yet to be determined,and most cyber attacks fall short of force.In the face of this situation,countermeasure is an effective way for the state to restrain and deter cyber attacks.As the countermeasures under the system of state responsibility law,there are many problems that need to be clarified when applied to cyberspace fashion.The origin and development of the countermeasures system will be found to have a clear "non-punitive".Countermeasures are rooted in the system of "retaliation" in traditional international law.It can be regarded as a concrete means under the broad concept of "sanctions".The core of the current draft articles on State responsibility is to confine countermeasures within a certain framework and prevent their abuse.In recent years,the international community has begun to pay attention to domestic legislation and international law in cyberspace.At the domestic level,China has promulgated legislation in the field of network,represented by the Network Security Law.However,most of the relevant legislation is the network legislation undertaking the top-level system design task,and there are few official responses on how to apply specific rules in cyberspace.At the international level,the "dual-track" international law governance system in cyberspace under the auspices of the United Nations has produced a series of achievements,including the recognition that existing international law applies to cyberspace.The West has codified the international law of cyberspace,represented by the "Tallinn Manual" series.In contrast,China’s participation in the formulation of international rules in cyberspace still needs to be enhanced.Existing international law applies to cyberspace,and whether the provisions of the Law on State responsibility for countermeasures need to be adjusted and changed when applied to cyberspace is a question that needs to be answered.Due to the virtual,interconnected and global characteristics of cyberspace,attribution is a difficult problem in the domain of cyberspace.In the attribution criterion of state responsibility law,there exists a debate on the criterion of "effective control" and "overall control".Nor should the attribution standard be relaxed in cyberspace,where adherence to the "effective control" standard established by the International Court of Justice remains appropriate.Non-state actors are active in the cyber field,and most cyber attacks are related to non-state actors.However,the introduction of the duty of prudence can alleviate the problem of attribution in cyberspace,where the duty of prudence is particularly concerned.The duty of care does not obligate States to monitor all cyber activities within their territory.Whether the state has effectively complied with the duty of prudence can be measured by the test of "reasonableness".The liability of the State that violates the duty of prudence is related to its breach of the duty of prudence,rather than depending on the damage suffered by the injured state.In contrast,countermeasures taken by the injured State against the State that breached its duty of care should be proportionate to the extent of the breach by the responsible State,not to the consequences of the harm.Countermeasures can only be taken against the responsible State and not against non-State actors.Practices such as "collective countermeasures" have not been permitted in the traditional field of international law.Given the huge gap in global digital technology,it is not appropriate to directly allow countermeasures to be taken by a third country other than the injured state in the field of cyberspace.The adoption of countermeasures should strictly abide by proportionality.In the past,international judicial institutions measured the proportionality of countermeasures through two dimensions: the severity of a country’s violation of obligations and the magnitude of the damage.This should be the benchmark in cyberspace,but there are more uncertainties in cyberspace.It is appropriate to try to solve the problem through technical means and try to respond in the same cyber way as possible.Negotiation and consultation are not the pre-requisite obligation for taking countermeasures in cyberspace.Dispute settlement procedures should also be flexible in cyberspace and should not be a pre-requisite.Faced with the application of many specific rules of international law represented by countermeasures in cyberspace,China should actively participate in the international practice of international law governance in cyberspace.China has consistently promoted and actively participated in the "dual-track" international law system in cyberspace led by the United Nations,while attaching importance to the role of international soft law in the emerging international law field in cyberspace.International law governance in cyberspace cannot be achieved without China’s participation as a major developing country in cyberspace.