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.