HYPOTHETICAL: Chinese Incursion into Philippine Maritime Territory

Is a DDOS Considered an “Armed Attack”?

In this post, we look at what may occur diplomatically, politically, and militarily if China launched a Distributed Denial of Service (DDOS) attack against the Philippines, encroached into Philippine sovereign maritime waters, and likely US obligations and responses.

Cyber Policy Questions?

The main cyber policy question raised by the “current” Spratly Islands dispute between China and the Philippines is whether the United States (US) has an obligation to address the current Chinese Distributed Denial of Service (DDOS) “attack,” [attribution is established by both the US and the Philippines]. and its associated use of electronic jamming against Philippine military forces, as an “armed conflict” under the terms of the 1951 Mutual Defense Treaty (MDT)?

What is the likelihood of the Philippine’s government invoking parts or the entire MDT defense Articles?  Under the MDT Articles how can the US best respond to China with its instruments of power?  Finally, is this current challenge in the region of national interest to the US, and interceding in it is in accordance with current US strategies?

There are several existing US strategies that support some level of obligatory action in this issue to include the 2015 National Security Strategy (NSS), the 2015 National Military Strategy (NMS), and the 2011 US International Strategy for Cybersecurity (ISC).  Under the NSS, the US has expressed its commitment to continue to bolster the capacity of the United Nations (UN) and regional organizations to help resolve disputes, (Executive Office of the President, 2015, p. 11). 

The long-standing maritime disagreements regarding the Spratly Island (Nansha) region is of vital US interest due to the area’s commercial and maritime naval sea lanes in support of US allies and international economic concerns; the US has an enduring interest in the freedom of navigation in this area, (Ibid, p. 13).  In terms of the NMS, the US has stated that China’s claim in the region is inconsistent with international law, (Joint Chiefs of Staff, 2015).

Furthermore, the ISC seeks to encourage good actors and dissuade and deter those who threaten peace and stability through actions in cyberspace, (Executive Office of the President, 2011), as inconsistent with the US global desires and interests. China’s actions run counter to multiple US strategies commited to peace and stability in Southeast Asia. It is of immediate concern that the US provide diplomatic, economic, military, and informational support to calm tensions in the region.

Historically, the International Court of Justice (ICJ) has determined that any claim of territory requires an intentional display of power and authority over the territory by the exercise of jurisdiction on a continuous and peaceful [emphasis added] basis, (Gonzales, 2014, p. 11); China has shown its desires to claim much of the Spratly region through its current occupations.  China has an understanding of these facets of international maritime law.  For the US to explicitly support its allies in the region, it must be vigilant in its discussion with China specific to both the legal and cultural sensitivities to seek better outcomes.

On July 12, 2016, the Permanaent Court of Arbitration to the Hague released its finding that China’s claim of over 90% of the Spratly Islands was “unlawful.” The US should remind China that it is legally bound by the tribunal’s ruling by virtue of its ratification of the UN Convention on the Law of the Sea (UNCLOS), (Campbell & Salidjanova, 2016, p. 3). It is critical that US’s diplomatic contacts accentuate this fact, and privately convey that violating this is inconsistent with its role as a major power.  Further, the needed subtle implication is to highlight for the Chinese the potential loss of “face” that within Chinese society affords US leverage in negotiating a settlement.

It is critical that US’s diplomatic contacts accentuate this fact, and privately convey that violating this is inconsistent with its role as a major power.  Further, the needed subtle implication is to highlight for the Chinese the potential loss of “face” that within Chinese society affords US leverage in negotiating a settlement.

The main question of whether a DDOS is an “armed attack” is a long-standing conundrum for military, diplomatic, computer and legal professionals for many years.  The prevailing consensus among scholars and policymakers holds that, because DDOS attacks cause neither physical injury nor destruction, they can never constitute armed attacks that trigger self-defense rights, (Li, 2013, p. 181). Furthermore, the Chinese rely on simultaneous application of EW and computer network operations against an adversary as a foundation for its offensive Information Warfare operations, (Krekel, 2009, p. 7).  While a DDOS, much like electronic jamming of radio frequencies, is considered a nuisance, it is not advised at this time to define it as a kinetic or armed attack under the US’s obligation under Article III of the MDT.

Furthermore, while the Republic of the Philippines under Article IV may interpret this as an armed attack, it is in the US’s best interests to dissuade that determination through private diplomatic discussions and technological support the US can offer in support of Article II provisions by providing necessary “mutual aid.”

The following overall response alternative will include extensive US cyber support under Article II.  Support will be mainly technical in nature, and will include 3-5 National Mission Teams deployed from US Cybercommand (CYBERCOM), (Department of Defense, 2015), that will provide immediate Computer Network Defense (CND) capabilities with access to US Intelligence Community capabilities on Day 1.  Additionally recommend, US national intelligence resources be provided to bolster Philippine intelligence forces, and an increased US naval presence should be in effect for the period of this disagreement.

Proposed Policy Response Alternatives

Alternative 1.  Culturally Sensitive (Diplomatic-Economic):  This alternative prioritizes a diplomatic response to the Spratly dispute focused more on Eastern cultural values vice international public law.  While the US successfully employed “cultural sensitivities” in terms of its initial successes during Iraqi operations in 2004 and beyond, it has not done as well with an understanding of the principle of “face” in its negotiations with China.  Face is both a social sanction for enforcing moral standards and an internalized sanction, (Hu, 1944, p. 45); a more deeply rooted concept in Chinese culture than for Westerners who are still apt not to understand fully this principle.  Face is critical to dealing with the Chinese, and the US and many other nations have failed to incorporate it in negotiations with the Chinese.  Additionally, China will be opposed to greater US involvement in resolution of disputes in the South China Sea, preferring bi-lateral negotiations, (Lunn & Lang, 2016, p. 7); this is not a current option for the US specific to its obligations under the MDT.

The purpose of this alternative is to create a positive diplomatic solution where the Chinese can share in the economic successes of this venture.  First, the US will broker the diplomatic deliberations between Chinese and the Philippine governments, but cannot be in the room during discussions; this is a direct contradiction to Chinese cultural norms of negotiating bi-laterally vice multi-laterally.  (The US, as well as the Philippines, has repeatedly failed to understand this nuance).  Second, these discussions will focus on a collective economic agreement to share information and future profits of any successful discoveries in the Spratly Islands.  Third, there must be positive external communications that the Chinese perceive as in their best interests to agree with this proposal. This not only creates a positive light in terms of “face,” but creates a bounding of Chinese interests specific to this claim; the Chinese will follow boundaries if they explicitly agree to them formally.  If they violate this after the fact, then it is perceived as wrong and a loss of face is a powerful lever for US diplomats to use in the future.  Further, to complement this proposal, the US should execute the signing, for example, at the White House with a presidential state dinner.  This will afford Chinese leaders a means to express to their citizens that this decision creates a great deal of positive face for the country.

The outcomes of this effort are: 1) a bi-lateral agreement to share in any economic successes, 2) creates a positive and face-saving means for the Chinese to allow the Philippine government, with US corporate interests, to continue their exploration activities, and 3) creates an ultimate framework for any future disputes to help the US support its allies in the region.  The justification for this action will improve US relations with China and a better understanding of cultural sensitivities.


  Alternative 2.  Private Demarche (Diplomatic-Military):  The purpose of this alternative is to demonstrate the US’s commitment to the MDT, and show the Chinese government that this is considered a serious matter.  It includes a demarche against the Chinese government.  The US would also execute a non-attributable and covert DDOS operation by the US Intelligence Community against Chinese periphery Internet architectures and devices supporting the attack against Philippine targets.  This is not only intended to stop the ongoing DDOS activities, but it shows sub rosa that the US has the capability to thwart current and future threats at any time; while this action may appear provocative, it too is more a demonstration of the US’s commitment to the MDT.

Additionally, this proposal includes the explicit use of US naval forces in the area to escort all US flagged ships.  Also, subject to the Philippine government’s cooperation, the US will be prepared to protect any Philippine vessel by temporarily flagging them under the US’s protection.  This temporary provision will also demonstrate the US’s commitment to the Philippine government.

The expected outcome is to potentially force the Chinese to immediate negotiations, and may be used to create the environment to move to actions as found under Alternative 1.   The justification is to demonstrate a commitment and seriousness of the dispute to persuade China’s immediate participation in new negotiations with the Philippines. 

Alternative 3.  Overt Cyber Response (Military-Economic):  the purpose of this alternative is to force the Chinese to cooperate with the public and private efforts of the US and Philippine governments.  It would include a harshly and publicly distributed demarche, an overt diplomatic and military communique that the US will block all Internet traffic entering and leaving China directed toward the US and the Philippines, and a tariff of all Chinese manufactured Internet equipment, such as firewalls, routers, etc., of 50%.  The expected outcome is to force China into bi-lateral negotiations with the Philippines.  The justification is to support historical concerns by US companies, such as Cisco and Fortinet, regarding Chinese theft of Intellectual Property (IP) and profiting from those efforts.

Strengths-Weaknesses-Opportunities-Threat (SWOT) Analyses

Alternative 1. Culturally Sensitive (Diplomatic-Economic):

• Strengths:
  • A positive soft power solution acceptable to all.
  • It is fully diplomatic and affords the Chinese a way to protect “face,” and allows US and Philippine interests into the Spratly Island region without conflict.
• Weaknesses:
  • This only solves the immediate issue economically.
  • It most likely will not address all long-term territorial disputes.
• Opportunity: This affords an opportunity to create a structure for future negotiations that are more culturally vice legalistically based.
  
  
  
• Threats:
  • It is unknown whether other factions within the Communist government would be less inclined to be motivated by such profit-sharing opportunities.
  • Other nations may be interested in maintaining instability, for example, Russia.

Alternative 2. Private Demarche (Diplomatic-Military): 

• Strengths:
  • It is a private solution where only the interested parties are privy to the actions less the Chinese regarding a covert DDOS operation against its Internet infrastructure.  (Attribution will obviously be assumed to be the efforts of the US.)
  • Provides direct protection to Philippine maritime assets not necessarily part of the dispute.
• Weaknesses:
  • While a DDOS against the Philippines or the US may have grave public and private impacts, a DDOS of China most likely will have minor and temporary impacts.
  • Does not protect other affected nations to include, for example, Malaysia and Vietnam.
• Opportunities: This is an opportunity to persuade the Chinese to negotiate, and demonstrates to the Philippine government the US’s commitment to the MDT.
• Threat: A threat includes China’s unwillingness to change their position based on a demarche and their successful DDOS against Philippine targets. 

Alternative 3. Overt Cyber Response (Military-Economic): 

• Strengths:
  • Could force the Chinese immediately to negotiations
  • Could support private sector concerns about historical losses of IP to the Chinese.
  • Would stop all Chinese cyber activities globally
• Weaknesses:
  • May result in escalated military action by all participants
  • Could deter private sector interests in continuing to pursue vital resources in the region
  • Could hamper or stop critical maritime trade routes in the region.
• Opportunities:
  • Could force China to new and bilateral negotiations.
  • Helps US determine its actual cyber capabilities and its abilities to respond to future conflicts
• Threats:
  • Chinese recalcitrance regarding its territorial rights in the region
  • Could result in regional naval and military conflict not in the best interest of any of the parties.
  • Other state and non-state actors (e.g., Anonymous) may see this as US bullying in the region and cause their entry
    
    
    
    

Justification for Recommended Policy Alternative

Factor*:	Impact to private sector interests	Impact US strategies, policies, laws	Impact US Regional Allies (especially Philippines)	Impact world community (UN, EU, etc.)	Score
Alt 1:  Culturally Sensitive (Diplomatic-Economic)	1	1	1	2	5**
Alt 2:  Private Demarche (Diplomatic-Military)	3	1	2	4	10
Alt 3:  Overt Cyber Response (Military-Economic)	4	2	4	5	15
*Factor scoring: 1-very positive; 2-positive; 3-neutral; 4-negative; 5-very negative (**LOWEST SCORE IS BEST)

Chart 1. Quantitative Analysis of Alternative Selection (unweighted)

SWOT Analyses

Based on the SWOT analyses, Alternative 1, is a culturally sensitive and attuned approach, and is the best choice.  In comparison to Alternative 2, it is much better in that it is a diplomatic response developed with both a legal and cultural solution to the dispute in the Spratly Islands.  Alternative 1 is far better in its acceptance by the private and corporate entities especially those involved with economic activities in the region.  This alternative creates a potential framework that can be replicated for like future difficulties working with the Chinese government.  It strongly recognizes the element of “face” in both daily life and diplomatic discourse to better work with and create positive outcomes for the world community at-large.  It recognizes missed opportunities in the value and importance of one-on-one bilateral negotiations that have failed in the past by not understanding its direct relationship with Chinese cultural norms. 

Alternative 2 may be provocative if China chooses to interpret as such; however, the international community, to include the UN, will favor a diplomatic vice a military solution that is subtly a part of Alternative 2.  Overall, Alternative 1 meets the desires and needs of current US national and international strategies especially as they pertain to the Southeast Asia stability.

Alternative 3 vice Alternative 1 is more reliant on an overt hard power cyber solution.  While the Chinese have historically postured about this region, the likelihood of escalating into a military engagement is unlikely.  It is still in US interests to not escalate to any conflict that heightens instability, and creates graver concerns for the international community regarding US involvement in the region.  Alternative 3 does have a modest positive impact on corporations directly concerned with China’s historical theft of trade secrets and sensitive corporate date; overall, the economic import of the region makes an escalation under Alternative 3 as less than desirable.

In conclusion, Alternative 1 is the best overall solution.  It is the least likely to create escalated military and international tensions.  It provides a means to create a positive, win-win, outcome for all.  Finally, it can become a prescient solution to address future disputes and a framework for the US and the world community to ensure peace and stability in the region.

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REFERENCES

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Department of Defense. (2015). Department of Defense Cyber Strategy. Retrieved from Defense.gov: http://www.defense.gov/News/Special-Reports/0415_Cyber-Strategy

Executive Office of the President. (2011, May). International Strategy for Cyberspace: Prosperity, Security, and Openness in a Networked World. Retrieved from National Defense University: https://ndu.blackboard.com/webapps/blackboard/content/listContent.jsp?course_id=_3645796_1&content_id=_866323_1&mode=reset/CYS-2011 International Strategy for Cyberspace(1).pdf

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Gonzales, R. (2014). The Spratly Islands Dispute: International Law, Conflicting Claims, and Alternative Frameworks. Retrieved from University of Nevada, Las Vegas: http://digitalscholarship.unlv.edu/cgi/viewcontent.cgi?article=1094&context=award

Hu, H. C. (1944). The Chinese Concepts of “Face”. Retrieved from Wiley Online Library: http://onlinelibrary.wiley.com/doi/10.1525/aa.1944.46.1.02a00040/pdf

Joint Chiefs of Staff. (2015, June). The National Military Strategy of the United States of America. Retrieved from National Defense University: https://ndu.blackboard.com/webapps/blackboard/content/listContent.jsp?course_id=_3645796_1&content_id=_866323_1&mode=reset/2015_National_Militray_Strategy.pdf

Krekel, B. (2009, October 9). Capability of the People’s Republic of China to Conduct Cyber Warfare and Computer Network Exploitation. Retrieved from George Washington University: http://nsarchive.gwu.edu/NSAEBB/NSAEBB424/docs/Cyber-030.pdf

Li, S. (2013). When Does Internet Denial Trigger the Right of Armed Self-Defense? Retrieved from Yale Law School Legal Repository: http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1426&context=yjil

Lunn, J., & Lang, A. (2016, July 12). The South China Sea dispute: July 2016 update. Retrieved from House of Commons Library: http://researchbriefings.files.parliament.uk/documents/CBP-7481/CBP-7481.pdf