Research On The Application Of Self-defense For Regulating Cyber-attacks

With the intensification of military competition in cyberspace and the rapid development of artificial intelligence technology,cyber-attacks are becoming more and more intelligent,large-scale cyber-attacks are becoming more and more frequent,and it is urgent to discuss cooperative governance of cyberspace under the framework of international law.At present,countries have gradually reached a consensus on the applicability of existing rules of international law framed by the UN Charter in cyberspace,but there are still differences on the specific application of relevant rules.Since the publication of the Tallinn Manual Version 2.0,a number of countries have also published national position papers on the application of international law to cyberspace,and many of them have chosen to follow the rules in the Tallinn Manual Version 2.0.As a theory that has been controversial in recent years,the right of self-defense is currently divergent on how to apply it cautiously in cyberspace.In the first part,before deeply analyzing the controversy over the application of the rules of self-defense in cyber-attacks,it is necessary to clarify the international legal concept of cyber-attacks and the positioning of the rules of the right of self-defense.Firstly,the development of artificial intelligence technology has made cyber-attacks more intelligent,large-scale cyber-attacks more frequent,and the vulnerability of artificial intelligence itself has also increased the security risks in cyberspace.On the basis of observing the development of cyber-attack practice,this paper analyzes the existing definition of cyber-attack,distinguishes the meaning of cyber-attack in the general context,and defines the international legal concept of cyber-attack.A systematic theoretical examination of the rules of the right of self-defense,that is,the system of rules on the use of force under the Charter of the United Nations is divided into the principle of the prohibition of the use of force and its exceptions,and the right of self-defense,as one of the exceptions,is related to and distinguished from international humanitarian law and the law of state responsibility.Secondly,the Tallinn Manual Version 2.0 and subsequent position papers issued by various countries are clearly adopted to analyze the three main controversial points of the application of the right to self-defense rules in cyberattacks.The first is how to determine whether a cyber-attack constitutes an "armed attack",that is,the premise for the application of the rule of self-defense.The second is the feasibility of pre-emptive self-defense to regulate cyberattacks,that is,the application time of the rules on the right of self-defense.The third is whether cyber-attacks by non-state actors can be regulated,that is,the subject of the rules on the right of self-defense.The second part will sort out and analyze the causes of the development of disputes over the application of the right of self-defense in cyber-attacks.First of all,the system sorts out the development history of the dispute over the application of the right of self-defense to regulate cyber-attacks,and proposes that the applicability of the right of self-defense to regulate cyber-attacks has reached a consensus,but there are still differences on the specific application premise,application time and applicable object,the presentation of the rules on the right of self-defense in the Tallinn Manual Version 2.0 specifically reflects the controversy over the specific application of the right of self-defense in the academic circles,and the release of the national position paper further concretizes the differences in the application path of the right of self-defense.Secondly,to analyze the reasons for the formation of disputes over the application of the right of self-defense in cyber-attacks,one is that the lack of mutual trust between countries in cyberspace has led to the intensification of the arms race,the second is the ambiguity of the conceptual boundary of the right of self-defense rules itself,which leads to the emergence of application disputes,and the third is that the process of expert law-making will further catalyze the differentiation of national positions on the specific application of the right of self-defense.The third part is about the specific discussion on the application of self-defense in cyber-attacks starts from three aspects of the current dispute over the application.In terms of the premise,by analyzing the advantages and disadvantages of the effectiveness and scale criteria in the Tallinn Manual Version 2.0,it is proposed that the judgment standard of combining various factors on a case-by-case basis should be used as the judgment standard for constituting "armed attack".With regard to the timing,it raised the view that the application of anticipatory self-defenses in cyber-attacks should be limited.In terms of the subject,it is noted that the practice of cyber-attacks by non-state actors has become the focus of attention in recent years,taking non-state actors as the main entry point,examining the practical challenges and claims of the right of self-defense applicable to non-state actors,it is proposed that the right of self-defense should not be extended to non-state actors.The fourth part puts forward suggestions on the application of the rules of self-defense in cyber-attacks and briefly puts forward suggestions on China’s positioning in the process of international rules game in cyberspace.First of all,with regard to the application of the rule of the right of self-defense,it should be prohibited to expand the interpretation of the theory of the right of self-defense,distinguish between "use of force" and "armed attack",limit the claim of the right of prior self-defense,and make it clear that the application of the right of self-defense should not be extended to non-State actors.The second is to improve the national responsibility system,regulate cyber-attacks that do not constitute "use of force" in peacetime from the perspective of internationally wrongful acts,and avoid the frequent use of force in cyber operations.From the perspective of rule formation,in the context of the current legally binding international rules in cyberspace that have yet to be formed,attention should be paid to the development of international soft law and the improvement of norms of responsible state behavior in cyberspace.Finally,the controversy and disagreement over the application of the rules on the right of self-defense are a microcosm of the international rules game in cyberspace.Based on China’s perspective and taking the rules of self-defense as the starting point,China should strengthen the expression of its position in the process of international cyber law,and can put forward clear and specific propositions on the interpretation and application of rules in a timely manner.China has now played the role of a responsible major country,has made considerable contributions to the United Nations consultation process,actively participated in the negotiation process of the international expert group of the Tallinn Manual on international rules in cyberspace,and should continue to actively build a multilateral dialogue platform,while respecting the authority of the United Nations in international affairs,promoting the formation of international consensus through multilateral consensus,and promoting the development of international law in cyberspace.