论国家实施网络入侵的行为性质与反制措施——以“斯诺登事件”为线索

The Nature and Counterstrike to the Network Intrusion Perpetrated by Nation——With the Clue of Snowden Incident

"斯诺登事件"揭示出国家实施网络入侵的现实威胁。《联合国宪章》是对该行为定性的法律依据。根据《联合国宪章》,国家实施的网络入侵必然是对国家主权平等原则的违背,但并不必然违背不使用武力或武力威胁原则。对于网络入侵是否构成使用武力或武力威胁,相比行为手段,更可行的方法是通过损害后果来判断,即网络入侵是否导致现实世界的重大人员财产损失或此类威胁。对构成"使用武力或武力威胁"的网络入侵,受害国可以进行自卫,包括应用常规军事手段,同时应当遵守相称性,但国际法在追究加害国及其领导人的法律责任方面恐怕难有作为。对不构成"使用武力或武力威胁"的网络入侵,国际法几乎无法为受害国的反制措施提供有效依据,但受害国可以通过自己的国内法采取适当的反制措施,具体而言,就是对帮助或参与国家实施网络入侵的自然人和法人进行规制。

The Snowden incident indicates that the threat of network intrusion perpetrated by nation does exist. United Nations Charter could be the basis to define the nature of such action. According to United Nations Charter, the network intrusion perpetrated by nation will definitely disobey sov- ereign equality principle but it will not necessarily break the principle of ＂ no force or threat of force＂. As far as whether network intrusion perpetrated by nation could be taken as force or threat of force, it is more feasible to make judgment according to the result rather than the manner of the intrusion. It means that we could see whetherthe intrusion has led to the serious damage of people or property in the real world. If the intrusion could be taken as the force or force threat, the victim nation could fight back in self-defense, including fighting by ordinarymilitary means. Meanwhile the self-defense should obey the rule of proportionality. But the international law could nearly do noth- ing to affix the responsibility of the nation and its leaders for the intrusion. If the intrusion could not be taken as the force or force threat, international law could not be the ground for counterstrike, but the domestic law of the victim nation could be the basis for counterstrike by restricting the natu- ral or legal person who assisted or took part in the network intrusion perpetrated by nation.