Forcing China to Accept that International Law Restricts Cyber Warfare May Not Actually Benefit the U.S.

​This past June, after U.N.-sponsored negotiations on the application of international law to cyber warfare collapsed, lead U.S. negotiator Michele Markoff released a blistering statement criticizing those that “believe their states are free to act in or through cyberspace to achieve their political ends with no limits or constraints on their actions. That is a dangerous and unsupportable view.”

There is little doubt that China, along with Russia and Cuba, was one of the countries that Markoff was speaking about. But while it is true that the Chinese government has thus far refused to clarify its views on how or whether international law constrains its cyber warfare activities, I am doubtful that persuading China to embrace international law here would actually advance U.S. interests. As I argue in a paper recently published by the Hoover Institution, China’s interpretation of the international laws regulating the use of force by nation-states differs in fundamental ways from the legal interpretation followed by the U.S. These legal differences mean that even if China agrees to apply international law to cyber warfare, that would probably not prevent or reduce the possibility of cyber conflict with the United States.

This post draws on my Hoover paper to describe the Chinese government’s views on the international law governing the use of force by states (the law of “jus ad bellum”). A subsequent post will also draw on that paper to offer some tentative observations, based on a review of Chinese academic and media sources, on how the Chinese government’s legal views on cyber warfare might develop in the future.

The key source for international law governing the use of force by states, often referred to as jus ad bellum, can be found in Article 2(4) of the United Nations Charter. That provision requires all U.N. members to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” The Charter’s text spells out only two exceptions to this prohibition: (1) when the use of force is authorized by the U.N. Security Council (Article 42); and (2) when the use of force is necessary for individual or collective self-defense in response to an “armed attack” (Article 51).

From the time it joined the U.N. in 1971, the People’s Republic of China has consistently adhered to a “restrictivist” interpretation of these provisions. In public statements, the Chinese government has adopted a strict reading of Article 2 that the “use of force shall not be resorted to without the authorization of the Security Council with the exception of self-defense under armed attack.” This interpretation is “restrictivist” because it rejects the possibility of any other legal use of force by a state, even “humanitarian interventions” to protect civilians from war crimes or genocide. Other states, including the United States, have sometimes argued that humanitarian intervention is legally consistent with the Charter.

Chinese scholars have also adopted a fairly narrow understanding of what constitutes a “use of force.” Unlike some developing countries, it does not accept that non-military actions, such as economic sanctions, can constitute a use of force. At the same time, Chinese scholars have taken a broad view of the Charter’s prohibition on one state’s interference in the domestic affairs of another state and have criticized economic sanctions on those grounds.

Additionally, although the Chinese government recognizes that a state may use force in self-defense against an armed attack, it has adopted a fairly restrictive reading of what constitutes an “armed attack.” Not only do such armed attacks have to meet a level of gravity and seriousness to trigger the self-defense right, but such armed attacks must either be imminent or have already have occurred. Chinese scholars have consistently rejected U.S. arguments that a state may have the legal right to act in “preemptive self-defense.” Thus, China, like many states, takes the view that a state cannot use force against an armed attack before that armed attack is imminent.

It is likely that the Chinese government would adopt similarly restrictivist views on cyber warfare. This would mean that China would not view all cyberattacks as a prohibited use of force, but it would probably deem certain attacks as a violation of the related principle of non-interference in domestic affairs. At the same time, China’s restrictivism also means that it would not treat a cyberattack as an “armed attack” triggering the right of self-defense. Even if such an attack occurred, no military action in response would be legal unless the cyberattack met a certain level of gravity and seriousness. Moreover, its rejection of the doctrine of preemptive self-defense would prevent a state from taking measures to disable a cyberattack until the attack is imminent or has already occurred.

Much of this approach would differ from both U.S. theory and practice. The U.S. has historically refused to rule out the legality of non-defensive military action not authorized by the U.N. Security Council. Indeed, the Trump administration’s April strike on a Syrian government airbase confirms that the new administration does not feel itself limited to the restrictivist reading of the Charter embraced by China. At the same time, the U.S. has adopted a broad conception of self-defense that justifies military strikes against non-state actors like terrorists and that also may allow preemptive military action. One might easily imagine a U.S. administration justifying a cyberattack on preemptive self-defense grounds. There seems almost no chance that the current Chinese government would endorse the legality of such an attack.

In sum, the U.S. has made clear that it believes all of these provisions of international law apply to cyberactivities by states, including itself. It has also condemned states like China for refusing to fully accept that the international laws governing the use of force restrict its conduct. But based on my review of China’s meaningfully distinct views on these legal questions, I am not sure that pressuring China to “accept international law” on cyber warfare will advance U.S. interests. China could easily use its own reading of international law to attempt to restrict and isolate the U.S among other states and in global public opinion. No doubt there are benefits to having China agree with the U.S. that international law restricts its cyber warfare activities, but U.S. policymakers need to remember that there are costs as well.

How China’s Views on the Law of Jus ad Bellum Will Shape Its Legal Approach to Cyberwarfare by Hoover Institution on Scribd