In This Article Expand or collapse the "in this article" section China and International Law in Cyberspace

  • Introduction
  • General Overview
  • Jus ad Bellum in Cyberspace
  • Law of Armed Conflict in Cyberspace
  • International Debate of Cyber Espionage
  • International Cooperation in Combating Cybercrime
  • International Coordination on Cross-Border Data Flow

International Law China and International Law in Cyberspace
by
Fan Yang
  • 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.

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