Research On The International Law Governance On Cyber Attacks And China’s Approaches

While it is beneficial to mankind,the network technology brings many negative effects simultaneously,Cyber attacks not only have a negative impact on the normal progress of information and telecommunications activities and the stable development of digital economy,but also pose a serious threat to the state sovereignty and security.Sovereign states have successively expressed their basic positions and attitudes on the issue of cyber attacks by issuing national security strategies,policies,laws and regulations,or other means,and taken a set of measures to cope with this problem.However,it is doubtful that the corresponding measures are in accordance with the validity,rationality,and appropriateness.The governance on cyber attacks has been in a dynamic game of rules of sovereign states for a long time.Based on the research and judgment on cyber attacks governance under the framework of the international law,the elaboration of the international law applicable to cyber attacks,and the comparative analysis of legal measures taken by sovereign states,this thesis seeks for the reasonable approaches to tackling the issue of cyber attacks,especially the ones regarding improvement of cyber attacks legal governance of China.Specifically,this thesis is mainly discussed from the following six aspects:The first part introduces the present situation of cyber attacks and its governance.Based on the analysis of the concept and characteristics of cyber attacks,the perniciousness of cyber attacks and the dilemma of its governance,the approaches of cyber attacks governance are intended to be found.On the issue of choosing approaches of cyber attacks governance,the cyber attack that is equivalent to use of force,the cyber attack that constitutes the intervention and the cyber attack that belongs to the general cyber crime shall all be taken into consideration.For sovereign states,when choosing the solution of cyber attacks governance,they shall attach importance to "the equilibrium of methods",consisting of combining domestic measures with the international ones,and taking the discussion of the jus pacis and the jus in bello into account.The second part introduces the new development of the international law applicable to cyber attacks and challenges.Through the discussion of the progression of the United Nations Group of Governmental Experts,the parallel progression of the United Nations Group of Governmental Experts and the Open-ended Working Group,the regulatory effects of international soft law of cyberspace,and the applicability of conventions on cyber crime,the development of international rules of cyberspace is exposited.Although the cyber threats in the field of information and telecommunications technology have been recognized,and new consensuses on the rules and regulations applicable to cyber attacks have been constantly reached by sovereign states,the issue of the applicability of specific international legal rules is still in controversy.Under the circumstances that the conflicts and disputes between the developed countries in the field of information and telecommunications technology and the emerging ones are intractable to be resolved or settled,it is necessary to elaborate on the interpretation and applicability of the existing.international law in cyberspace,and gradually develop new international rules of cyberspace.The third part expounds the attribution tests of state responsibility applicable to the international legal governance on cyber attacks.Based on the analysis of the attribution tests in the Draft Articles on the Responsibility of States for Internationally Wrongful Acts,and the effective control test and the overall control test established by the International Court of Justice in its precedents,the possibility,deficiency and improvement in the attribution tests of state responsibility applicable to cyber attacks are elaborated.The existing international law are still applicable to cyber attacks,but there are many new problems arising when legal rules applicable to armed attacks are applied to cyber attacks.In the light of the flexibility of the control tests,whether the attribution tests of state responsibility in the international law could be effectively applied to cyber attacks remains to be further proved.In practice,the specific analysis shall be carried out in individual cases in combination with the rules established by the International Court of Justice and the International Arbitral Tribunals.The fourth part expounds the application of the due diligence test in the international legal governance on cyber attacks.Based on the analysis of the status and role of the due diligence obligation in the international law and application of relevant tests,the possibilities and problems of the due diligence test applicable to the cyber attacks governance and the applicability and deficiencies of the attribution test named "state toleration or unwillingness" are elaborated and assessed.In practice,on the issue of cyber attacks governance,the specific requirements of the due diligence obligation in the international law could be applied,in order to ensure the appropriateness,proportionality and effectiveness of measures taken by sovereign states.In addition,any adjustment of the attribution tests of state responsibility needs to be cautiously expounded and proved,especially the one related to militarized cyberspace.The fifth part discusses the international competition and cooperation in the practices related to the legal governance on cyber attacks.Based on the analysis of general characteristics and trends of cyber attacks legal governance,and the research and judgment on the rationality,validity,and appropriateness of the corresponding measures taken by sovereign states,the reasonable methods of cyber attacks legal governance are expected to be found.On the one hand,cyberspace has become a new field of the game of rules of sovereign states where the conflicts from the value of law are more of obviousness and complication due to the connectivity and cross-border peculiarity of cyberspace;On the other hand,communication and collaboration among sovereign states in relevant fields are enhanced and strengthened continually,in order to effectively cope with the issue of cyber attacks.With the development of the legal governance led by the United Nations agencies and the international practices with the participation of multi-stakeholders,placing emphasis on theconstructive role of the norms of behaviour in cyberspace,the construction and development of international legal governance on cyberspace have been improved and promoted.The sixth part discusses the Chinese approaches of cyber attacks legal governance under the circumstance of the game of international rules,consisting of the basic propositions of China in the development of the international rules of cyberspace,the responses to the international legal governance on cyber attacks and the thread of improvements of measures concerning cyber attacks legal governance of China.Firstly,facing the conflicts and disputes between the developed countries in the field of information and telecommunications technology and the emerging ones,China shall always insist on the basic position that the principle of sovereignty is applicable to cyberspace,and take the conception of a community with a shared future in cyberspace as the basis of propositions in the development of relevant international rules.Secondly,China shall positively participate in the discussion of issues regarding cyber attacks legal governance,and strengthen its own discourse and dominating power continually in the development of the norms of behaviour for cyber security and the conventions on cyber crime by taking the legal governance on cyber attacks as the breakthrough point.Finally,in the new era with opportunities and challenges,China shall take the initiative in the dynamic game of cyber attacks and defenses between sovereign states by continually improving the measures concerning cyber attacks legal governance with safety-oriented value,and giving play to the merits of the combination of social co-governance and prudential supervision.The originality of the thesis is that it carries out the research on the dilemma of cyber attacks governance and the problem-solving approaches by adoption of the literature analysis method,the case study method,the historical analysis method,the comparison method and the interdisciplinary research method,from the perspective of the game of international rules of cyberspace and the competition of discourse power,and offers Chinese solutions and wisdom for cyber attacks legal governance,based on the research and judgment on the validity,rationality,and appropriateness of the corresponding measures taken by sovereign states and their legal bases.