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China and the U.S. Strategic Construction of Cybernorms: The Process is the Product

Aegis (Hoover Institution Paper Series on National Security, Technology, and Law, 2017)

Temple University Legal Studies Research Paper No. 2017-19

24 Pages Posted: 8 Jun 2017 Last revised: 4 Aug 2017

Duncan B. Hollis

Temple University - James E. Beasley School of Law

Date Written: June 7, 2017

Abstract

This paper explores the role norms - shared expectations about appropriate behavior within a given community - play in advancing U.S. interests in changing Chinese behavior in cyberspace. It focuses on two recent normative achievements: (1) the U.N. Group of Governmental Experts’ consensus that international law applies in cyberspace; and (2) the U.S.-China understanding that neither State would pursue cyber-espionage for commercial advantages. To date, both agreements have been studied largely in terms of their contents - on what they say.

In contrast, this paper undertakes a broader, process-based analysis of U.S. efforts to generate cybernorms. It compares and contrasts the two projects by examining (a) their respective normative ingredients (i.e., the type of desired behavior, the identity of the group subject to the norm, the source of the norm’s propriety, and the extent of any shared expectations); (b) where the norm promotion occurred (i.e., grafted onto an existing institution or deployed in a newly established process); and (c) the choice of mechanisms - incentives, persuasion, socialization - by which the United States sought to develop and evolve each norm. Doing so reveals a diverse range of choices that offers a new lens for analyzing and assessing how cybernorms may emerge (or change) in a global, dynamic and pluralistic environment. As such, this paper provides a framework for strategizing about the potential risks and rewards of pursuing different normative processes, whether in U.S. efforts to impact China’s behavior in cyberspace or vice-versa. States and scholars would thus do well to assess current and future efforts to construct cybernorms with China and other States by looking at not just one, but all the aspects of normative processes.

Keywords: cybernorms, cybersecurity, norms, international law, espionage, cyberespionage, intellectual property theft, China, constructivism, international humanitarian law, law of armed conflict, sovereignty

JEL Classification: K00, K33, K39

Suggested Citation

Hollis, Duncan B., China and the U.S. Strategic Construction of Cybernorms: The Process is the Product (June 7, 2017). Aegis (Hoover Institution Paper Series on National Security, Technology, and Law, 2017); Temple University Legal Studies Research Paper No. 2017-19. Available at SSRN: https://ssrn.com/abstract=2982120

Duncan B. Hollis (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

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