Summary

This report examines the concept of countermeasures as it applies to state activity in cyberspace. Countermeasures — i.e., the non-performance of a state’s international obligation in response to an internationally wrongful act by another state — are analyzed through the perspectives of European and Chinese scholars. The report explores the concept of countermeasures in the law of international responsibility, as well as the substantive and procedural requirements for lawfully resorting to countermeasures. While both sides agree on the basis of countermeasures in customary international law, they differ on the conditions for resorting to countermeasures in the digital realm. Key recommendations include clarifying the scope of cyber countermeasures and calling upon states to comply with substantive and procedural requirements to prevent abuse. The report highlights the challenges of applying traditional rules of international law to cyberspace.

Background

This report has been produced in the context of a larger research and dialogue project: The China Institutes of Contemporary International Relations (CICIR), the EU Cyber Direct, the Geneva Centre for Security Policy (GCSP), and Xiamen University convene a joint Sino-European Expert Working Group on the Application of International Law in Cyberspace (WG IL). The working group provides a platform for exchange among European and Chinese legal experts to examine the application of international law in cyberspace. The main goal of the work in research groups is to provide more thorough analysis of the selected topics and identify points of divergence and convergence between European and Chinese side with the purpose to create more evidence-based and trusted environment for the policy discussions in track 1.5. and track 1 processes.