Did the U.S. Infiltration of Chinese Company Huawei Violate International Law?

by Julian Ku

Just in time for Michelle Obama’s speech in Beijing extolling the benefits of free speech and a President Obama/President Xi summit, the NY Times published an article detailing how the U.S National Security Agency infiltrated the systems of Chinese telecom infrastructure giant Huawei.  According to documents the Times obtained from the Edward Snowden leak, the NSA “obtained information about the workings of the giant routers and complex digital switches that Huawei boasts connect a third of the world’s population, and monitored communications of the company’s top executives.”

From a legal perspective, there is no doubt that this is a violation of Chinese laws and an example of how the U.S. government is doing what it is alleging the Chinese government is doing to U.S. companies. There also seems little doubt that this action is clearly legal under U.S. laws, as the U.S. government has broad and largely unchecked authority to conduct surveillance of foreign nationals in foreign countries.  But is the action illegal under any international laws?

I am doubtful that such snooping could violate any international right to privacy, even if such a right existed.  The ICCPR might provide such a right, but it may or may not apply extraterritorially, and even if it did, it probably doesn’t restrict this kind of activity.

This essay in the Global Times, a hawkish Chinese-state-affiliated newspaper, suggests that such activity could also constitute an attack for the purposes of the law of war.  The author, a U.S.-based writer, argues that “launching attacks under another nation’s flag has long been seen as illegal under both codified law and international custom. In such a case, Chinese nationals would face financial and possibly physical risk, especially if US involvement remained undetected.”

I think this would be a stretch under the laws of war. Is snooping around in Huawei’s servers an “act of violence” within the meaning of the Geneva Convention? I don’t think walking into Huawei’s offices and ruffling through their papers is an act of violence. Taking down their servers, or planting viruses to disable those servers or related activities might be an act of violence, but even that seems a bit of  stretch under current international laws.

So the U.S. may have spied, but it cannot be said to have “attacked” China, in its reported Huawei infiltration.  As a matter of international law, the reported actions appear to be legal, even if they were unwise or hypocritical.

http://opiniojuris.org/2014/03/25/u-s-infiltration-chinese-company-huawei-constitute-cyberattack/

5 Responses

  1. Julian: the interesting phrases in the U.N. Charter would be “force” and “armed attack,” not “violence” and, by the way, the ICCPR applies abroad despite the laughable claims of the Bush-Cheney administration.  See, e.g., ICCPR preamble (affirming the “universal” reach of UN Charter h.r. obligations and H.R. Comm., General Comment No. 31. But. who has a relevant h.r. under the “effective control” test?

  2. Is it not a question, whether cyber warfare is comes under the purview of ‘war’ as recognised by international law?

    If yes, is not cyber hacking equivalent to espionage or reconnaissance?

    If no, is it not just the violation of sovereignty?

  3. Adding to the previous commenter, though adding perhaps a bit more specificity, should hacking into the computers of foreign companies by intelligence agencies not be considered to violate the exclusive territorial jurisdiction of a State when it comes to matters of enforcement of law and order? While a State’s territorial jurisdiction may not be completely exclusive nowadays when considering the possibility of legislating for extra-territorial acts, in terms of adjudication or enforcement such jurisdiction is exclusive.
    Huber in the Palmas case suggested as much, when he claimed that sovereignty is the right to display the functions of a State within the territory concerned “to the exclusion of any other State”. The Permanent Court in the Lotus case was more specific in stipulating that the foremost limitation imposed upon States by international law is that a State “may not exercise its power in any form in the territory of another State.”
    Though in this case the exercise of power is virtual, in that no specific physical acts (by humans) take place in foreign territory, hacking as such by the NSA would appear to constitute an exercise of public power by the USA in foreign territory. If sending an airplane into foreign airspace for the purpose of espionage constitutes a violation of a State’s territorial sovereignty (the 1960 U2 incident), a virtual presence for the same purpose constitutes the same.
     

  4. A de H: where is the “hacking”? If what is hacked is in a foreign state, isn’t there some kinetic effect in that state? Doesn’t the foreign state have objective territorial jurisdiction over th hacker (b/c there is (1) and intent to procude effects therein, (2) effects therein, and (3) acts therein if there are kinetic outcomes and, at least by fiction, a continuing act within b/c of the continuing act principle recognized, e.g., by the PCIJ in cases, including Lotus (b/c the French vessel crashed into the Turkish vessel and, therefore, was present partly in the equivalent of Turkish territory — plus negligence was a substitute for intent in that case and there were certainly effects).

  5. p.s. I do not think that a theory of “virtual” reality helps much re: analysis re: transnational surveillance, especially b/c information may be in the actual power or effective control of one who views or listens from abroad (e.g., not withion the foreign state) but the relevant person who might otherwise have a privacy claim is in no way within even the “virtual” power or control of one who merely views or listens.
    Also, since espionage is rampant as well as surveillance from satellites, etc., isn’t there widespread practice in opposition to an alleged customary international legal norm against such forms of surveillance?  Further, isn’t it the case that “sovereignty” has never been absolute? that it must be tested by attention to actual patterns of practive and generally shared expectations or opinio juris?

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