Research On Self-defense Right Of States In Cyber Attack

Cyber attacks have gradually become one of main factors threatening national security.The modern international order and "Charter of the United Nations"(hereinafter referred to as the "Charter")prohibit the threat of using force and use of force,and certain restrictions on the exercise of the right of states’ self-defense have been imposed by relevant articles of the Charter.Besides,the particularity and complexity of cyber attacks are different from traditional armed attacks,so in the face of this new form of attack(defense),the state will inevitably face many blind spots,disputes,and difficulties in exercising its right to self-defense.Therefore,when a country is under a cyber attack,what measures should be taken to protect the country’s legitimate rights and interests under the premise of complying with international laws is of decisive importance.The prerequisite for the state to exercise its right of self-defense is that cyber attacks must conform to "use of force" and "armed attack".Among them,the question of what kind of cyber attacks can be refered as the use of force is still controversial.Based on the cases of various countries,Article 2,paragraph 4 of the Charter,and the Tallinn Manual,it is determined that the individual cases need to be analyzed objectively according to specific conditions,such as different scale of cyber attacks.When the impact and scale is serious or is considered extremely serious,the injured state can claim the right to self-defense in accordance with Article 51 of the Charter to protect its rights and interests.In addition,the new type of cyber attack is the same as the traditional armed attack,which means the exercise of the right to self-defense must be subject to international customary law and still need to follow four essential principles of military necessity,proportionality,distinction,and neutrality.Whether it is a "preemptive" armed attack or a "later strike" resistance to aggression,the traditional forms of war are recognizable and operable to a certain degree without much controversy.Cyber attack as the non-traditional security threat is highly concealed,unpreventable,and difficult to trace.Because the "later strike" is essentially passive response,they need to be at the expense of being attacked and harmed,and there may also be some questions of targets,timeline and damage degree which are difficult to assess and identify,so the state will inevitably face many difficulties in exercising its right of self-defense,such as the disputes of preventive self-defense,collective self-defense and the lack of legislation.Among them,on the issue of anticipatory self-defense,the principle of “adhering to defense,self-defense,and later strike” is fully in line with China’s consistent internal affairs and diplomacy as a permanent member of the Security Council and a major power in the world.In exercising the right of collective self-defense,we should try to abandon the “hard”group confrontation method in the Cold War state,and adopt a more flexible posture and form that is different from military alliances force self-defense.In the absence of legislation,we should continue to improve the "soft" cooperation such as domestic and international legislation on cyber security.To sum up,in the current security environment,it is necessary to further research and explore the principles of "defense,self-defense,and later strike",and to moderately deepen and expand its connotation and extension.For example,the exercise of the right to self-defense is no longer just regarded as a practical action,it should be used as an effective means of exerting pressure and deterring the adversary.Based on the existing systems and strategies of NATO(North Atlantic Treaty Organization),the European Union,China and Russia,China should act as a model country for regulating cyber attacks to standardize international and domestic legislation,promote international political,military,and security cooperation on cyber security,and strengthen cyber deterrence and technology at the legislative level.We will work hard to build the community of shared destiny in cyberspace,and work together to deal with major cyber security issues and construct a peaceful and win-win cyberspace.