International law Photo: TUCHONG

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In the present day, digitalization has brought about significant changes in the dynamics of international interactions and the power boundaries of state actors. At the same time, non-state actors, including technology companies, academic groups, and ordinary citizens engaged in the development and utilization of digital technology as well as the governance of digital space, have gained greater influence in international relations. Given this, international law in the digital age is in urgent need of transformation and upgrading in many respects.

Since issues in the digital sphere are novel, complex, and highly politicized, negotiations between countries are slow, and consensus is difficult to reach. In contrast, non-state actors leverage their technological resources to participate in the formulation of international law through more diverse means. However, non-state actors lack necessary accountability, transparency, and representativeness, which may give rise to a legitimacy crisis in the formulation of international law.

As digital technology has endowed non-state actors with unprecedented capacity for action, legal concepts or systems applicable to inter-state behavior, such as sovereignty, non-intervention, and prohibition of the use of force are insufficient to address emerging security threats, potentially undermining state-centered international legal relations.

The normative system of international law is fraught with uncertainty regarding its development path and specific rules. In terms of its development path, whether international law and regulations adopted in the physical world should be applied to digital space, or new specialized treaties or norms should be formulated, is a key issue that countries have been debating in recent years.

In terms of specific rules, the determination of the use of force is disputed. In the “battlefield without gunpowder” of digital space, no consensus has been reached on what actions taken through digital technology constitute the “use of force” within the framework of international law. This makes it difficult to accurately apply the traditional distinction between international law of war and law of peace in digital space.

Digital technology has dual impact on international law implementation and compliance. On the positive side, digital technology can provide new tools and solutions. For instance, it can be used to collect, analyze, verify, and report data information on whether countries or international organizations comply with international law and regulations. Digital technology can also help detect violations of arms treaties through the development and deployment of AI-monitored sensors.

On the negative side, the anonymity of digital activities and the low access threshold for the individual use of digital technology pose challenges to attribution of illegal activities, jurisdiction systems, and transnational judicial cooperation. It also limits the effectiveness of international law implementation mechanisms such as diplomatic pressure, negotiation, mediation, arbitration, adjudication, and sanctions.

At present, issues such as uneven development and inadequate rules are salient in digital space, resulting in the pressing need to fully leverage the stabilizing role of international law in digital space governance. Existing international law is still applicable in digital space, which is largely an extension of physical space. In particular, the fundamental principles of international law, such as sovereign equality, non-intervention in domestic affairs, and the prohibition of the use of force are not outdated. These principles must be upheld, as they can guide countries to jointly build a harmonious and mutually beneficial digital space.

Considering the unique attributes of digital technology and the profound social changes brought about by it, international law cannot remain stagnant. It should be developed in line with the legitimate rights and interests of individuals, national sovereignty, and the common interests of mankind. The international community must ponder how the current international legal system can stay relevant and effectively respond to the new challenges in digital space. Ultimately, sustainable international rule of law must reflect the interests of the entire international community.

Huang Zhixiong is a professor in the School of Law at Wuhan University.

Edited by WANG YOURAN