(THIS ARTICLE IS COURTESY OF ‘LAWFARE’)
As I noted in my post yesterday, the Chinese government has declined to clarify how and whether it believes the international law governing the use of applies to cyber warfare. Its refusal to do so has drawn sharp criticism from the U.S. and other cyber powers. But while the Chinese government has not set forth a clear statement on these issues, Chinese scholars and media commentators have outlined important principles that may become part of official government policy. Drawing on my recently published paper for the Hoover Aegis Paper Series, this post sketches out some key themes on international law and cyber warfare gleaned from Chinese legal scholarship.
First, much of the Chinese commentary I reviewed is deeply suspicious of the motives of any effort to build a consensus on the rules of cyber warfare, including the Tallinn Manual, an important effort by scholars from around the world to develop academic consensus on the rules of international law and cyber warfare. In China’s view, the fact that most of the scholars in the original Tallinn Manual hailed from NATO countries made its motives suspect. As one Chinese media commentary put it, the United States is attempting to “spur the international community into drawing up rules for cyber warfare in order to put a cloak of legality on its ‘preemptive strike’ strategy in cyber warfare.”
Chinese scholars did participate in the “Tallinn 2.0” effort, but Chinese media remained skeptical of the whole approach. China has long argued that instead of discussing how existing international law should be interpreted to regulate cyber warfare, all cyber activities should be handled through a new treaty negotiated at the United Nations. As another Chinese commentator noted, the West usually enjoyed “bragging about its ‘carrying of the flag’ for international law,” yet the West is now the main obstacle to international legislation in this area.
Second, Chinese analysts have emphasized that, despite the Tallinn Manual, deep uncertainty and disagreement exists on ways to define and attribute cyberattacks that constitute “armed attacks” under international law. Most importantly, Chinese commentary has criticized an expansive definition of the right of self-defense against cyber-attacks. Because the United States, in China’s view, has abused its right of self-defense in other contexts, China is reluctant to endorse any principle that would bolster doctrines such as preemptive self-defense. As a prime cyber target as well as cyber power, China is worried about legitimizing U.S. offensive cyber operations as forms of “self-defense.”
Other Chinese scholars have reiterated that the difficulties in attributing a cyber attack to a state remains a key obstacle to the effective application of international law. Yet in their view, the efforts of some Western scholars to loosen legal standards to make a state responsible for cyber activities of small groups or individuals are impracticable and dangerous.
I discuss all of this in greater detail in my paper, but overall, I think China’s position deserves more study and consideration. As I argued yesterday, China’s embrace of international law for cyber warfare may not actually be in the best interests of the U.S. As this brief survey of Chinese commentary suggests, China is also skeptical that signing up for the U.S. version of international law will be in China’s best interests. It is therefore not surprising that U.N.-sponsored negotiations on the application of international law to cyber warfare collapsed this past June.