A Study On The Issues Concerning The Application Of International Law In Cyberspace

The application of international law in cyberspace is one of the core issues in promoting the international rule of law in cyberspace.It is also the dilemma of safeguarding national sovereignty and security as well as an important source of aggravating the division,competition and conflict of the international community.Around the application of international law in cyberspace,the international community not only has a basic consensus,but is more involved in differences and disputes.At present,the international community generally recognizes the applicability of existing international law in cyberspace.However,the application of international law in cyberspace mainly includes two aspects: First,which existing international law should be applied? Second,how to apply these existing international laws? No further international consensus has been reached among major countries on the above issues.The divergence of the international community on the basis and legitimacy of the application of international law to cyberspace is an important factor to aggravate the above two aspects.In short,the consensus reached by all countries on the issue of international rule of law in cyberspace is only at a relatively abstract and preliminary level,which leads to the lack of common concept support for the application of international law in cyberspace,therefore it is easy to fall into a situation of contradiction or confusion.On the theoretical basis of the application of international law in cyberspace,western international law scholars have put forward "instrumental theory","customary international law theory" and "alternative scheme theory".However,these theories are not only contradictory to each other,but also difficult to achieve logical self consistency.The legitimacy of the application of international law in cyberspace lies in the fact that the social basis of international law has not changed fundamentally,and there are adjustment objects of international law in cyberspace.State is the qualified subject of the application of international law.The state's need for clear norms of conduct,rights and obligations in cyberspace promotes the application of international law in cyberspace.At the same time,the international consensus transmitted by countries and international organizations through international practice is the core of its legitimacy,and also the main driving force for the future international rule of law in cyberspace.In order to deeply analyze the difficulties faced by the application of international law in cyberspace,this study adopts both macro and micro perspectives to discuss the general and specific issues of the application of international law in cyberspace.From a macro perspective,the application of international law in cyberspace includes three aspects: applicable content,applicable method and applicable subject.Among them,the choice of the applicable content of international law is mainly related to the rights and obligations of states in cyberspace;the application methods of international law mainly represented by interpretation and analogy are closely related to the judgment of international illegal acts in cyberspace and the filling of international legal gaps;the problems faced by different subjects in applying international law and their solutions have an important impact on the determination of state responsibility in cyberspace.It is worth noting that the choice of the applicable content of international law in cyberspace is inevitably mixed with the contention of national position,values and national interests.At the same time,the application of international law in the international community mainly includes legal interpretation and legal analogy.Legal interpretation shows that the application standard of international law in cyberspace is not clear,and legal analogy reflects the absence of application of international law in cyberspace.In the process of applying international law,states and international organizations need the assistance of non-state actors in terms of technology and relevant norms,so as to enhance the applicability of the law of state responsibility in cyberspace.From a micro perspective,the three principles of sovereignty,non-interference and prohibition of the use of force in cyberspace face more disputes,which can better illustrate the problem on the application of international law in cyberspace.When the above three principles are applied in cyberspace,they are faced with the problems of unclear connotation of legal terms,vague standards of application of rules,omission of rules and disunity of law application methods.These problems are related to the unclear content of the existing international legal rules and the different application methods of international law according to the applicable subjects.In the face of the problems and disputes in the application of international law in cyberspace,major western countries have been stepping up the identification of international illegal acts and related state responsibilities in cyberspace.More and more emerging and developing countries have submitted comments to the United Nations to show their views and positions on the application of international law to cyberspace.On this basis,the development of international rule of law in cyberspace has been pushed to a new stage.Although there are still significant differences between the two camps on the application of existing international law in cyberspace,the development of international practice in cyberspace shows that some views of the two camps on the development of international rule of law in cyberspace are gradually converging.At the same time,the development of international soft law in cyberspace has become a hot issue in the governance of cyberspace.In view of the above phenomenon,Joseph Nye's "mechanism complex" theory has certain explanatory power and a great influence on the proposal of complementary and progressive mode in this study.The complementary and progressive mode aims to provide a new analytical perspective and problem-solving path for the application of international law in cyberspace,placing international legal norms at the core,and taking cyberspace actors represented by States,international organizations and other non-state actors as the main driving force for the operation of the model.However,in view of the problems existing in the international legal norms and the role of actors in cyberspace,the implementation of the complementary and progressive model faces potential risks and challenges.As a responsible country,China has actively participated in the construction and governance of cyberspace since the end of the last century,and has adjusted China's cyberspace policy with the times.However,due to the "deterrence" and suppression from the western developed countries led by the United States,China is still facing a grim situation in promoting the development of international rule of law in cyberspace,especially in solving the application of international law in cyberspace.Therefore,it is the way out for China to break through the external siege,maintain China's sovereignty and security,lead and build a more fair and reasonable international order in cyberspace by making strategic planning in different periods,comprehensively enhancing China's international competitiveness,advocating multilateralism externally,shaping a model of a big country and striving for supporters in the global scope.The application of international law in cyberspace,which is not the end,but an important stage and path to strengthen and improve cyberspace governance as well as enhance the level of international rule of law in cyberspace,should be comprehensive and balanced.In this process,relying on the community of shared destiny in cyberspace and guided by the important values of peace,security,development and balance,international law should be applied in an all-round and balanced way,and special international law in cyberspace should be developed in a timely manner.It is not only the way to solve the application of international law in cyberspace,but also the future of promoting cyberspace governance and effectively realizing and safeguarding the legitimate interests of all countries in cyberspace.