State responsibility in the context of cyberwarfare: dilemma identification and path reconstruction

Abstract As a new type of military confrontation in the era of informationization, cyber warfare has broken through the physical boundaries of the traditional war paradigm in terms of its technical characteristics and strategic effectiveness. Due to the ambiguity of the object of regulation, the defect of attribution mechanism, and the lack of clarity of the constituent elements of responsibility, the existing international law framework has caused the state responsibility system in cyberspace to fall into the dilemma of normative failure. This paper takes the theory of international law subjectivity as the logical starting point and systematically deconstructs the normative attributes of cyberwar and the path of responsibility determination. This paper shows that the constitutive elements of state responsibility need to break through the rigid standard of traditional “behavior-damage” causality and build a dynamic attribution system combining technical verification and legal presumption. Through critical analysis of the use of force threshold doctrine, this paper, based on a comprehensive analysis of the core dilemma of the determination of state responsibility, proposes to appropriately introduce the concept of “substantial support”, and when the traditional theory of comprehensive control fails to make effective attribution, the criterion of “substantial support” can be used to complete the attribution of state responsibility with the increasingly developed technological traceability means.