China and International Law in Cyberspace
- LAST REVIEWED: 20 February 2024
- LAST MODIFIED: 20 February 2024
- DOI: 10.1093/obo/9780199796953-0256
- LAST REVIEWED: 20 February 2024
- LAST MODIFIED: 20 February 2024
- DOI: 10.1093/obo/9780199796953-0256
Introduction
As a recently thriving domain that caters to human activity and international relations in digital forms, cyberspace is essentially a man-made space with unique features, in that it is interconnected globally, borderless among states, and ultimately technology-driven. Active in this domain are cyber activities characterized by their anonymity and instantaneity, which translate into legal challenges in terms of attribution and effective regulation. While states tend to agree that cyberspace should not be left out of the rule of law, including international law, examining how existing international law (lex lata) could apply in the context of cyberspace is still an evolving endeavor in terms of both state practice and academic research. Since the year 2000, states, especially those with stronger cyber capabilities, have played a competitive game striving for greater influence, and some for dominance, in international legal governance of cyberspace. It is commonly believed that the future of international law in cyberspace will be largely shaped by such interactive process among states. Being primarily a rule-taker in the current Western-dominated international legal system, China seeks to speak up as a rule-maker in cyberspace, actively advocating for a Chinese perspective on international law applicable in cyberspace. In general, China puts more emphasis on the role of sovereign states in the international governance of cyberspace, and highlights concerns on cybersecurity and strategic stability. China prefers a multilateral approach to the regulation of cyberspace, especially through the UN platform, as compared to a multi-stakeholder approach. China has been a driving force in the UN Open-Ended Working Group (OEWG) on Developments in the Field of Information and Telecommunications in the Context of International Security and its predecessor, the UN Group of Governmental Experts (GGE) on Advancing responsible State behavior in cyberspace, as well as in the UN Ad Hoc Committee on Cybercrime. Domestically, China is building up its cyber capacity in terms of both hard power and soft power. The Cyberspace Administration of China (CAC) acts as the leading agency to design the state’s strategy on international governance of cyberspace. China’s Ministry of Foreign Affairs (MOFA) plays an important role in carrying out the diplomatic engagement and treaty negotiations for the country. A scholarly community on international law in cyberspace is quickly burgeoning among China’s universities and think tanks, which leads to interdisciplinary interaction among scholars from international politics and international relations. Apart from the “General Overview” section, this entry is organized according to major branches and topics of international law in cyberspace, with a closing section specifically dedicated to China’s state practice in this regard.
General Overview
China’s attitude toward international law in cyberspace is largely framed by its perception of cyber order in general, which is generally believed to be carefully calibrated based on China’s practical needs, and a quite different one than that held in the West. Segal 2018 represents a typical Western observation on the Chinese style of Internet governance, referring to it as state-centric and highly regulated through complex domestic legal instruments. Ma 2015 reiterates a somewhat official stand of China’s vision on Internet order, in which a multilateral approach of international governance, mainly through the UN, is emphasized. China released its first and only (as of November 2023) national strategy explaining its ideas on international cooperation on cyberspace in 2017, and Zhang 2017 offers a scholarly interpretation of this strategy, commenting on its origin, guiding principles, foundation, and purpose. Yang and Zheng 2017 represents a typical Chinese scholar’s narrative on how the Chinese idea of “building a community of shared future for mankind” is transplanted into cyberspace, and how this vision could help generate order in new frontiers, including cyberspace. Gao 2022 elaborates on the confrontational paradigms between Washington and Beijing over how best to regulate cyberspace, criticizing the dichotomy as oversimplified and static. Moore 2023 offers a case study explaining that cyber-related technical issues often tend to be politicized, and that China has been sticking to a state-centric viewpoint to form its responding strategy in a consistent way. Negro 2023 puts China’s perception of Internet governance in a historical perspective, explaining the country’s ambition to make good use of the window to shift from “norm taker” to “norm maker,” while the world is debating and negotiating on cyber order. Huang and Ying 2021 points out that China’s agenda for cyberspace governance and its strategy on international law in cyberspace have been shaped by its concern about the potential destabilizing effects of the Internet on social stability and national security, and by its fear of foreign interference in its domestic affairs under the guise of “Internet freedom.” Huang and Mačák 2017 systematically examines the divergences that China and the West may have on key issues regarding international law in cyberspace, which largely remain true as of this writing in late 2023. Zhu and Chen 2022 tries to import the Five Principles of Peaceful Coexistence, a typical Chinese advocation in international rule of law, into regulating cyber operations with international law, and develops the connotations for each principle.
Gao, Xinchuchu. “An Attractive Alternative? China’s Approach to Cyber Governance and Its Implications for the Western Model.” International Spectator 57.3 (2022): 15–30.
DOI: 10.1080/03932729.2022.2074710
US dominance in global cyber governance was challenged by the shift in cyberspace geopolitics in the post-Snowden era and the rise of new cyber powers. China has become a powerful competitor. The confrontation between Washington and Beijing in cyberspace can be seen as a confrontation between open multi-stakeholder paths and sovereign-driven and government-led paths, a dichotomy often described as a Western versus non-Western confrontation. But this dichotomy oversimplifies China’s position and ignores the shift in global cyber governance.
Huang, Zhixiong, and Kubo Mačák. “Towards the International Rule of Law in Cyberspace: Contrasting Chinese and Western Approaches.” Chinese Journal of International Law 16.2 (2017): 271–310.
DOI: 10.1093/chinesejil/jmx011
China and the West are in agreement that cyber operations must be subject to the rule of law. But the two sides disagree on five key issues: the need to formulate new rules in cyberspace, the cyberspace governance model, the meaning and parameters of sovereignty in cyberspace, the militarization of cyberspace, and the treatment of cyber espionage.
Huang, Zhixiong, and Yaohui Ying. “Chinese Approaches to Cyberspace and International Law in Cyberspace.” In Research Handbook on International Law and Cyberspace. 2d ed. Edited by N. Tsagourias, and Russell Buchan, 547–563. Camberley, UK: Edward Elgar, 2021.
China has formed its own position on the application of international law to cyberspace, ranging from the sources to the substantive content of the law. For the former, the Chinese approach features a three-pronged method for the identification and development of international rules for cyberspace, which combines applying existing international law, setting new soft law, and formulating new hard law under the UN apparatus. For the latter, two representative issues—sovereignty (an example of what China supports) and the jus ad bellum/law of armed conflict (an example of what China tends to reject)—are addressed.
Ma Xinmin. “What Kind of Internet Order Do We Need.” Chinese Journal of International Law 14.2 (2015): 399–404.
DOI: 10.1093/chinesejil/jmv021
Derives from a speech by the author when he served as a Chinese diplomat. Helpful in understanding China’s earlier concerns and general preferences on cyberspace governance.
Moore, Gregory J. “Huawei, Cyber‑Sovereignty and Liberal Norms: China’s Challenge to the West/Democracies.” Journal of Chinese Political Science 28.1 (2023): 151–167.
DOI: 10.1007/s11366-022-09814-2
A case study on 5G, Huawei, and the relationship between 5G technology and cyber sovereignty norms. The security issues presented by 5G builders and managers led to differences in views on allowing Huawei to participate in the construction and operation of 5G networks. The Chinese government has proposed the concept of cyber sovereignty as a solution to the many challenges that 5G and other new technologies pose to Internet governance.
Negro, Gianluigi. “China’s Perspective on Internet Governance: a More Integrated Role in the Global Discussion?” Journal of Chinese Political Science 28.1 (2023): 105–125.
DOI: 10.1007/s11366-022-09811-5
Contextualizes the historical shift of China’s role from “norm taker” to “norm maker” in global governance over the Internet. Highlights the historical factors that contributed to shaping the relationship of China with the International Telecommunication Union (ITU) and Internet Corporation for Assigned Names and Numbers (ICANN). Offers as a case study the personal career of ITU Secretary General Zhao Houlin and his relationships with the Chinese government.
Segal, Adam. “When China Rules the Web: Technology in Service of the State.” Foreign Affairs 97.5 (2018): 10–18.
Argues that China has created an interlocking framework of laws, regulations, and standards to increase cybersecurity and safeguard data in governmental and private systems, and also tried to shape the international institutions and norms that govern cyberspace. Holds the view that China’s vision for the Internet is ascendant, and the future of cyberspace will be less American and more Chinese.
Yang Jian and Zheng Yingqin. “Global Governance of New Frontiers: China’s Perspective.” China International Studies 66 (2017): 24–44.
Provides facts and arguments that hegemonism cannot provide reliable public goods for the global governance of new frontiers, including cyberspace. The Chinese idea of “building a community of shared future for mankind” is likely to gradually develop into one of the common ethical bases for global governance on new frontier.
Zhang Xinbao. “China’s Strategy for International Cooperation on Cyberspace.” Chinese Journal of International Law 16.3 (2017): 377–386.
DOI: 10.1093/chinesejil/jmx026
A scholarly interpretation of the origin, guiding principles, foundation, and purpose of China’s Strategy for International Cooperation in Cyberspace. Argues that the Strategy demonstrates China’s new ideas and aspirations with regard to a new global order in cyberspace and its governance mechanism, and also reflects traditional Chinese wisdom of achieving “a world of great harmony” and “finding the balance between the two extremes.”
Zhu, Lixin, and Wei Chen. “Chinese Approach to International Law with Regard to Cyberspace Governance and Cyber Operation: From the Perspective of the Five Principles of Peaceful Co-existence.” Baltic Yearbook of International Law Online 20.1 (2022): 187–208.
DOI: 10.1163/22115897_02001_010
Since sovereign states under international law are still the dominant force in coping with cyber threats and carrying out international governance of cyberspace, the Five Principles of Peaceful Coexistence, initiated by China, have unique advantages when applied in cyberspace. In the process of constructing international norms of cybersecurity and cyber operations, the connotations of all five principles shall develop accordingly.
Users without a subscription are not able to see the full content on this page. Please subscribe or login.
How to Subscribe
Oxford Bibliographies Online is available by subscription and perpetual access to institutions. For more information or to contact an Oxford Sales Representative click here.
Article
- Act of State Doctrine
- Africa and Intellectual Property Rights for Plant Varietie...
- African Approaches to International Law
- African Commission on Human and Peoples' Rights and the Af...
- Africa’s International Intellectual Property Law Regimes
- Africa’s International Investment Law Regimes
- Agreements, Bilateral and Regional Trade
- Agreements, Multilateral Environmental
- Aliens
- Applicable Law in Investment Agreements
- Archipelagic States
- Arctic Region
- Armed Opposition Groups
- Aut Dedere Aut Judicare
- Balance of Power
- Bandung Conference, The
- Boundaries
- British Mandate of Palestine and International Law, The
- Children's Rights
- China, Judicial Application of International Law in
- China, Law of the Sea in
- Civil Service, International
- Civil-Military Relations
- Codification
- Cold War International Law
- Collective Security
- Command Responsibility
- Common Heritage of Mankind
- Complementarity Principle
- Compliance in International Law
- Conspiracy/Joint Criminal Enterprise
- Constitutional Law, International
- Consular Relations
- Contemporary Catholic Approaches
- Continental Shelf, Idea and Limits of the
- Cooperation in Criminal Matters, Cross-Border
- Countermeasures
- Courts, International
- Crimes against Humanity
- Criminal Law, International
- Cultural Rights
- Cyber Espionage
- Cyber Warfare
- Debt, Sovereign
- Decolonization in International Law
- Democracy
- Development Law, International
- Disarmament in International Law
- Discrimination
- Disputes, Peaceful Settlement of
- Drugs, International Regulation, and Criminal Liability
- Early 19th Century, 1789-1870
- Ecological Restoration and International Law
- Economic Law, International
- Effectiveness and Evolution in Treaty Interpretation
- Enforced Disappearances in International Law
- Enforcement of Human Rights
- Environmental Compliance Mechanisms
- Environmental Institutions, International
- Environmental Law, International
- Estoppel
- European Arrest Warrant
- Exclusive Economic Zone
- Extraterritorial Application of Human Rights Treaties
- Fascism and International Law
- Feminist Approaches to International Law
- Financial Law, International
- Forceful Intervention for Protection of Human Rights in Af...
- Foreign Investment
- Fragmentation
- Freedom of Expression
- French Revolution
- Gender and International Law, Theoretical and Methodologic...
- Gender and International Security
- General Customary Law
- General Principles of Law
- Genocide
- Georgia and International Law
- Grotius, Hugo
- Habeas Corpus
- Hijaz and International Law, The
- History of International Law, 1550–1700
- Hostilities, Direct Participation in
- Human Rights
- Human Rights and Regional Protection, Relativism and Unive...
- Human Rights, European Court of
- Human Rights, Foundations of
- Human Rights Law, History of
- Human Trafficking
- Hybrid International Criminal Tribunals
- Immunities
- Immunity, Sovereign
- in Latin America and the Caribbean, International Legal Pr...
- Indigenous Peoples
- Individual Criminal Responsibility
- Institutional Law
- Inter-American Commission on Human Rights (IACHR) and Inte...
- International and Non-International Armed Conflict, Detent...
- International Committee of the Red Cross
- International Community
- International Court of Justice
- International Criminal Court, The
- International Criminal Law, Complicity in
- International Criminal Tribunal for Rwanda (ICTR)
- International Criminal Tribunal for the Former Yugoslavia ...
- International Fisheries Law
- International Humanitarian Law
- International Humanitarian Law, China and
- International Humanitarian Law, Targeting in
- International Intellectual Property Law, China and
- International Investment Agreements, Fair and Equitable Tr...
- International Investment Arbitration
- International Investment Law, China and
- International Investment Law, Expropriation in
- International Law, Aggression in
- International Law, Amnesty and
- International Law and Economic Development
- International Law, Anthropology and
- International Law, Big Data and
- International Law, Climate Change and
- International Law, Derogations and Reservations in
- International Law, Dispute Settlement in
- International Law, Ecofeminism and
- International Law, Espionage in
- International Law, Hegemony in
- International Law in Cyberspace, China and
- International Law in Greek
- International Law in Italian
- International Law in Northeast Asia
- International Law in Portuguese
- International Law in Turkish
- International Law, Legitimacy in
- International Law, Marxist Approaches to
- International Law, Military Intervention in
- International Law, Money Laundering in
- International Law, Monism and Dualism in
- International Law, Peacekeeping in
- International Law, Proportionality in
- International Law, Reasonableness in
- International Law, Recognition in
- International Law, Self-Determination in
- International Law, State Responsibility in
- International Law, State Succession in
- International Law, the State in
- International Law, The Turkish-Greek Population Exchange a...
- International Law, the Turn to History in
- International Law, The United States and
- International Law, Trade and Development in
- International Law, Unequal Treaties in
- International Law, Use of Force in
- International Legal Personality
- International Regulation of the Internet
- International Relations Study in China, International Law ...
- International Rule of Law, An
- International Territorial Administration
- International Trade and Human Rights
- Intervention, Humanitarian
- Investment Protection Treaties
- Investor-State Conciliation and Mediation
- Iran and International Law
- Iraq War, Britain and the
- Islamic Cooperation, International Law and the Organizatio...
- Islamic International Law
- Islamic Law and Human Rights
- Islands
- Jerusalem
- Jurisdiction
- Jurisprudence (Judicial Law-Making)
- Jus Cogens
- Just War
- Landlocked Countries and the Law of the Sea
- Law of the Sea
- Law of Treaties, The
- Law-Making by Non-State Actors
- League of Nations, The
- Lebanon, Special Tribunal for
- Legal Pluralism
- Legal Status of Military Forces Abroad
- Liability for International Environmental Harm
- Liberation and Resistance Movements
- Mandates in International Law
- Maritime Delimitation
- Martens Clause
- Medieval International Law
- Mens Rea, International Crimes
- Middle East Boundaries and State Formation
- Migration
- Military Necessity
- Military Occupation
- Minorities
- Modes of Participation
- Most-Favored-Nation Clauses
- Multinational Corporations in International Law
- Nationality and Statelessness
- Natural Law
- Neutrality
- New Approaches to International Law
- New Haven School of International Law, The
- Non liquet
- Noninternational Armed Conflict (“Civil War”)
- Nonstate Actors
- Nuclear Non-Proliferation
- Nuremberg Trials
- Organizations, International
- Pacifism in International Law
- Palestine (and the Israel Question)
- Peace Treaties
- Piracy
- Political Science, International Law and
- Positivism
- Private Military and Security Companies
- Protection, Diplomatic
- Public Interest, Human Rights, and Foreign Investment
- Queering International Law
- Rational Choice Theory
- Recognition of Foreign Penal Judgments
- Refugee Law, China and
- Refugees
- Rendition, Extraterritorial Abduction, and Extraordinary R...
- Reparations
- Russian Approaches to International Law
- Sanctions, International
- Sanctions, International
- Secession
- Self-Defense
- Slavery
- Soft Law
- Space Law
- Spanish School of International Law (c. 16th and 17th Cent...
- Sports Law, International
- State of Necessity
- Superior Orders
- Taba Arbitration, The
- Teaching International Law
- Territorial Title
- Terrorism
- The 1948 Arab-Israeli Conflict and International Law
- The Ottoman Empire and International Law
- Theory, Critical International Legal
- Tibet
- Tokyo Trials, The
- Torture
- Transnational Constitutionalism, Africa and
- Transnational Corruption
- Treaty Interpretation
- Ukrainian Approaches
- UN Partition Plan for Palestine and International Law, The
- UN Security Council, Women and the
- Underwater Cultural Heritage
- Unilateral Acts
- United Nations and its Principal Organs, The
- Universal Jurisdiction
- Uti Possidetis Iuris
- Vatican and the Holy See
- Victims’ Rights, International Criminal Law, and Proceedin...
- War Crimes
- Watercourses, International
- Western Sahara
- World Trade Organization Law, China and