CHARLIE DUNLAP, J.D
Today we are very pleased to have China expert Dean Cheng share with us his latest thinking on the relationship of three fascinating (and timely!) topics: China, space, and lawfare.
As Dean explains, the Chinese are sophisticated lawfare or “legal warfare” practitioners. Reading how China is utilizing legal techniques at the same time it is making rapid advances in space technology is an eye opener. I learned a lot, and I bet you will too. Here’s Dean:
China and Space: The Next Frontier of Lawfare - by Dean Cheng
The People’s Republic of China (PRC) is one of the most thoughtful practitioners of legal warfare or “lawfare.” For PRC planners, especially those in the People’s Liberation Army (PLA), legal warfare is an integral part of the larger effort of “political warfare.” Indeed, legal warfare is embedded in the Chinese conception of political warfare.
From the Chinese perspective, political warfare, including legal warfare, is seen as a form of combat. Military combat preparations include the development and innovation of military political work, alongside more kinetic forms of operations.
Indeed, political warfare is seen as a vital complement for more traditional forms of military operations. While they may not be decisive in their own right, political warfare tactics nonetheless may allow their practitioner to seize the initiative and otherwise multiply the effects of military power.
Political warfare, in Chinese writings, is comprised of a number of different types of activities. These include what are termed “the three warfares” of public opinion warfare, psychological warfare, and legal warfare.
Public opinion warfare is aimed at broadly shaping and influencing domestic and international views of the PRC and other states, while psychological warfare (at the strategic level) tries to influence various economic, political, and other societal leaders to not oppose Chinese actions and even to support them. These complement legal warfare.
Legal warfare, at its most basic, involves “arguing that one’s own side is obeying the law, criticizing the other side for violating the law (weifa; 违法), and making arguments for one’s own side in cases where there are also violations of the law.”[1]
The instruments of legal warfare include not only international treaties, but national laws as well as the full range of legal instruments: legislation, judicial law, legal pronouncements, law enforcement, and legal education.
Like more conventional forms of warfare, legal warfare is conducted under a unified command organization. It will include the use of the law in implementing offensive actions, defensive actions, counterattacking actions, and other forms of combat. Legal warfare includes such operations as legal deterrence (falu weishe; 法律威慑) and the imposition of sanctions (zhicai；制裁).
In order to influence domestic and foreign populations and leaders, legal warfare is most commonly employed before the outbreak of physical hostilities. Furthermore, such a preemptive legal strike can weaken opposing coalitions while building support for one’s own side.
In wartime, “The aim is to psychologically dissipate the other sides’ fighting will in both the military and the civilian realms, while exciting one’s own military and civilian passions and obtaining international sympathy and support.”[2]
Legal warfare is not solely applied in time of war, however. Just as political warfare is ongoing whether there is a formal outbreak of hostilities or not, legal warfare can be used even in peacetime, whether to harass political adversaries or to influence third countries and parties.
Chinese Views of Space
Even as the PRC is developing its political warfare capabilities, it is also developing its space capabilities. Space plays a vital role in the broad Chinese efforts at modernization and international competition.
From the perspective of the Chinese Communist Party (CCP) leadership, space touches on just about every aspect of “comprehensive national power,” the range of elements that contribute to a nation’s status.
Not only do space capabilities contribute to a nation’s military capacity, but it can also generate significant economic benefits, by promoting development of various advanced technologies including telecommunications, advanced materials, precision manufacturing, and systems integration.
These advances can also help elevate a nation’s technological levels. As important, space capabilities can contribute to a nation’s international standing, thereby enhancing both domestic and international prestige of the CCP, as well as international influence.
In this regard, the CCP can draw a parallel with telecommunications, and especially the success of Huawei. Early and persistent Chinese investment in Huawei has allowed the company to dominate 5G markets around the world.
Huawei has a firm grip on much of the 5G infrastructure built across Africa and South America, and until the Trump administration pressured US allies, it was also establishing a significant if not dominant position in many American allies in Europe and in the United States itself.
The company did so in part because it could provide inexpensive but reliable equipment, and in part because it has consistently remained at the forefront of technological development.
The benefit of being recognized as a global technological leader is also linked to the concept of “cultural security,” a consideration that has been explicitly noted by various Chinese leaders, including Hu Jintao and Xi Jinping.[3]
It is no accident that China has featured prominently in various space-related movies of the last two decades. Both Sandra Bullock and Matt Damon relied upon Chinese space systems to get home, in “Gravity” and “The Martian” respectively. PRC opinion makers understand the importance of presenting the PRC as a space power, both in reality and in media.
Here, Chinese leaders may see a cautionary tale in Chinese history. Admiral Zheng He led seven expeditions, the famed “treasure fleets,” to the Indian Ocean and east Africa between 1405 and 1433, during China’s Ming Dynasty. His ships were some of the most advanced in the world, featuring waterproof bulkheads.
Internal politics, however, led Chinese leaders to halt the expeditions, and subsequently demolish the shipyards, scuttle the treasure ships, and destroy the blueprints for the various vessels.[4] The PRC turned away from the sea—just as the European powers were beginning their own age of exploration and imperial expansion.
Chinese leaders are unlikely to repeat this mistake as they set out to explore and exploit outer space.
Legal Structures Governing Space Activities
In terms of legal warfare, space presents a significant opportunity for the PRC. At present, there is a limited body of international law governing space activities. The most important, the Outer Space Treaty (OST), came into force in 1967, over half a decade ago. The OST lays out some of the most important principles governing space activities, includingThe right of all nations to engage in space exploration and space activity.
The prohibition of deployment of weapons of mass destruction
The rejection of claims of sovereignty against any celestial bodies, including planets, asteroids, and moons.
All astronauts, regardless of nation of origin, are considered an “envoy of mankind,” and all members of the OST are obligated to provide help to astronauts in distress, including in event of emergency landings on land or at sea.
Nation-states are responsible for their space activities, including those by commercial space entities, and nation-states are the final word in providing authorization and maintaining supervision over spacecraft.
Nation-states are responsible for the damage caused by space objects. Given that nation-states are responsible for the actions of commercial space actors, this would presumably extend to damage caused by private commercial space activities.
These last three elements were further codified by additional agreements which expanded upon the associated obligations, passed by the UN General Assembly. These areThe Rescue Agreement (1968) governing the rescue and return of astronauts and space probes;
The Liability Convention (1972) governing liability for damages and adjudicating claims; and
The Registration Convention (1976), authorizing the United Nations to maintain a space object registry.[5]
In addition, the so-called Moon Treaty was passed in 1984, which called for only peaceful use of celestial bodies and which sought to govern how lunar resources were to be obtained and used. The United States has not signed the Moon Treaty.
Because space was largely dominated by the two superpowers during the Cold War, and space remains an expensive and difficult domain to exploit, this limited range of treaties was sufficient to manage most international space activities for much of the early Space Age.
Rarely was the Liability Convention invoked, and never was the Rescue Agreement. States have registered many of their craft with the UN Organization for Outer Space Activities (UNOOSA), but few details are typically included for what the spacecraft actually do.
This paucity of international agreements is paralleled by the limited number of national laws governing space activities. While the United States, Japan, and Europe have each developed a body of space-related laws, many other nations, especially in the less developed world, have only begun to establish legal codes governing space laws in the last two decades.
Indeed, even in the more developed space powers, important elements such as communications satellites are not managed as space enterprises, but as a part of electromagnetic frequency management.
Thus, international governance of satellite communications partly resides with the International Telecommunications Union (ITU), as well as national entities such as the Federal Communications Commission in the United States.
While commercial space ventures now encompass commercial space launch and earth imaging (a realm formerly dominated by national intelligence services), what legal structures will manage companies such as SpaceX, Planetlabs, LEOLabs, and Maxar is unclear.
In particular, the ability of companies to provide significant strategic support in time of crisis or conflict has moved from theory to actual practice, as seen in various Western space companies’ support for Ukraine in its ongoing war with Russia.
Both Russia and China have indicated their concerns about Starlink, for example. Indeed, Chinese analysts were denouncing Starlink as a threat to peace in 2020, long before the Russian invasion of Ukraine.[6] Such support by private companies could be seen as the responsibility of the launching nation; it certainly raises questions about the neutrality of the companies and their host nations.
A similar vacuum exists with regards to legal infrastructure governing lunar and cis-lunar activities. This becomes especially salient as the United States and PRC enter into a new Moon race. After the last of the Apollo lunar landings in the 1970s, there was no follow-up on lunar development or even exploration.
Consequently, there has been no real consideration of establishing a legal or operational regime for lunar activities, whether it is establishing lunar research stations (robotic or crewed), creating a lunar positioning system (LPS), or space traffic management (STM) for the cis-lunar volume of space.*
This situation is likely to change, however, as the United States and the PRC each lead rival groups to establish longer term presences on the Moon, especially at key areas such as the lunar poles (where there is believed to be significant amounts of frozen water).
For the PRC, this is a rare moment where it can play a role in establishing the very foundations of the legal infrastructure that will govern what they see as a key strategic venue.
Indeed, there are relatively few industrial standards, behavior norms, or standard operating procedures governing space operations at the international level. For the PRC, this presents a potential opportunity to create the legal regime that will govern space activities in the decades ahead.
To this end, the PRC can exploit its position as one of the leading space powers. The PRC is one of the few countries that can launch its own astronauts into space, a feat only Russia and the United States can rival.
The PRC fields one of the four global navigation satellite systems (GNSS). Its Beidou system places the PRC on an equal footing with the United States (GPS), Russia (GLONASS), and Europe (Galileo), and ahead of any other Asian nation.
China is the second nation to land on Mars (the first to do so successfully on its first try), and one of only three countries to retrieve samples from the Moon.
It has been first or second in terms of space launches in a calendar year for the last several years, closely rivaling the United States and far outpacing Russia, Europe, Japan, and other space powers. By these metrics, the PRC clearly deserves a seat at the table for any effort to establish the rules governing future space operations.
This is even more likely to be true in the context of cis-lunar and lunar surface activities. The PRC is currently planning a series of robotic landings on the Moon over the rest of the decade.Chang’e-6 (2024). The backup for the Chang’e-5 mission, the Chang’e-6 will be another lunar sample retrieval mission. It will likely land at the lunar south pole, although it is unclear whether it will be on the lunar near side or far side. (The Chang’e-5 was on the lunar far side.)
Chang’e-7 (2026). This mission is intended to survey more areas of the lunar south pole, looking for accumulations of water ice. It is believed it will pay special attention to some of the craters where it is believed that ice is most likely (due to parts of those craters being in permanent shadow).
Chang’e-8 (2027 or 2028). This mission will experiment with 3-D printing, using lunar materials as the raw materials.[7]
In addition, Beijing has announced that it plans on landing a human mission on the Moon by 2030. Notably, this effort is explicitly international, unlike most other aspects of China’s space program.
The project is termed the “International Lunar Research Station (ILRS),” and has generally included both Russia and China as the initial stakeholders. Chinese descriptions of the ILRS effort make clear that not only is the project open to all nations, but that its focus is on facilitating international scientific cooperation.[8]
That the ILRS is an international endeavor, and involves establishing a long-term research station, signals that Beijing, unlike the United States, intends to stay on the Moon, rather than simply plant its flag and not return. That, in turn, means there will be a need for a routinized amount of traffic, if only to keep any lunar station supplied, which in turn will require space traffic management for the volume of space between the Earth and the Moon.
Within this volume of space, and given the expectations of growing traffic within it, the challenge will be determining the behavior norms, industrial standards, and standard operating procedures. What language, spoken and data, will be used? Who will set the safe behavior parameters? Who will certify spacecraft and spaceline operations?
The PRC has already expressed interest in the governance and management of cis-lunar activities, precisely because it expects to have a role in STM, and recognizes that STM in turn will influence lunar development.
Similarly, determining the norms and standards for cis-lunar activity will influence long-term industrial production and economic activity, much as Huawei’s domination of the global 5G market has affected both national infrastructure development in a range of countries as well as generated enormous income for the PRC.
This is also a fundamental form of soft power. Global air traffic employs English as the common, mandatory language for international air travel. For the PRC, the potential ability to make Chinese the common language for space travel would make clear its dominant role in the new Space Age.
Implications for Legal Warfare
What the PRC is pursuing in the space law realm at this time is not “legal warfare” per se. That is, it is not trying to exploit treaties, national laws, regulations, or using law enforcement agencies and legal education to somehow prevent other nations from conducting space operations. Indeed, its efforts to understand and shape legal and industrial regimes are not necessarily different from that of other space powers.
But precisely because the PRC does have a specific doctrine for legal warfare (and political warfare in general), its actions need to be assessed in that light. Moreover, just as the PRC conceives of legal warfare as another form of warfare, albeit using legal methods, the kinds of activities that the PRC is pursuing is akin to preparation of the battlefield.
Much as fortifications, minefields, and other obstacles can be used to channel enemy forces and influence adversary actions and assessments, the PRC’s efforts to establish itself as a dominant player in terms of STM rules and industrial standards are likely intended to shape future legal developments in directions that will favor the PRC—and disadvantage its rivals.
For example, it should be noted that the PRC filed a patent with the United States in 2022 for a GNSS system that would specifically support Earth-Moon navigation.[9] That the scientists in question filed their patent with the United States Patent Office ensures that it has international recognition. Does this mean that the PRC will be able to charge any other nation who tries to deploy a satellite navigation system for cis-lunar operations?
The new space race is not yet a military race, but as Chinese writings note, “Even before the trumpets sound and the horses move, political warfare is already underway.” And for the PRC, that includes legal warfare measures.
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