Reordering the Law For a China World Order: China’s Legal Warfare Strategy in Outer Space and Cyberspace

Reordering the Law for a China World Order:

China’s Legal Warfare Strategy in Outer Space and

Cyberspace

Bret Austin White*

INTRODUCTION ............................................ 436

I. CHINA’S PLACE IN THE WORLD ........................... 438

A. All Under Heaven . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 438

B. Westphalian World Order vs. Tianxia . . . . . . . . . . . . . . . . . . 440

II. LEGAL WARFARE AS CHINA’S STATE POLICY ................. 443

A. China’s Concept of Legal Warfare . . . . . . . . . . . . . . . . . . . . 444

B. Role of State Behavior in International Law . . . . . . . . . . . . . 447

1. The Law of Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448

2. Customary International Law . . . . . . . . . . . . . . . . . . . . . 449

C. China’s Legal Warfare - Testing the Waters . . . . . . . . . . . . . 450

III. CHINESE INFLUENCE ON INTERNATIONAL SPACE LAW. . . . . . . . . . . 453

A. The Scope of International Space Law . . . . . . . . . . . . . . . . . . 455

B. Vertical Sovereignty to the Heavens . . . . . . . . . . . . . . . . . . . 458

C. Peaceful Purposes & China’s Anti-Satellite Capabilities . . . . 461

IV. DECODING THE EFFECTS OF CHINESE LEGAL WARFARE ON

CYBERSPACE ......................................... 466

A. In Search of International Law of Cyberspace . . . . . . . . . . . . 467

1. Prohibition on the Use of Force . . . . . . . . . . . . . . . . . . . 471

2. Article 51 & Self-Defense . . . . . . . . . . . . . . . . . . . . . . . 472

B. The Fog of China’s Cyber Legal Warfare . . . . . . . . . . . . . . . 475

C. Sovereignty and Patriotic Hackers . . . . . . . . . . . . . . . . . . . . 477

CONCLUSION.............................................. 485

* Bret A. White is an active duty United States Marine Corps Judge Advocate, currently assigned as

a National Security Law Attorney, United States Indo-Pacif‌ic Command. B.A., Texas A&M University

(2002); J.D., Seton Hall University College of Law (2005); M.A. in Diplomacy, Norwich University

(2018); LL.M in Space, Cyber, and Telecommunications Law, University of Nebraska College of Law

(2019). An earlier draft of this article served as partial completion of the LL.M. requirements. The views

expressed herein are solely those of the author and do not ref‌lect the off‌icial positions of the Department

of Defense, the Department of the Navy, or the United States Marine Corps. © 2021, Bret Austin White.

I am exceedingly grateful for the guidance and mentorship provided by Professor Jack M. Beard of

the University of Nebraska College of Law, who served as faculty thesis advisor. I also extend my

sincerest gratitude to Professor Todd C. Huntley, Georgetown University Law Center, and Professor

Fei-Ling Wang, Sam Nunn School of International Affairs at the Georgia Institute of Technology, both

of whom were gracious with their time and provided invaluable review and commentary to further shape

this article.

435

Regardless of whether a war is just or not . . . the two sides in a war will both

make every effort to develop ‘legal warfare’, and seek out means of construct-

ing legal bases for undertaking the war, and conf‌irm that they themselves are

the reasonable and legal side. Fan Gaoming

†

INTRODUCTION

From the end of World War II to the end of the Cold War, it was the United

States and its Western allies who primarily shaped international law, particularly

through the creation and growth in prominence of the United Nations. Following the

end of the Cold War, the United States found itself in what many have labeled the

“unipolar moment” where the U.S. and the West did not appear to have a direct

competitor. But this period of U.S. and Western leadership may be passing in the

eyes of a state like China whose history stretches back for millennia. The fact that

this phase happened to coincide with China’s “national humiliation,” its century and

a half of greatest weakness in perhaps the last two thousand years, permits China to

view the Western-led world order as an aberration and not the norm.

Observers of China’s rise towards great power status describe the ascent vari-

ously in aggressive and dangerous terms. Graham Allison warns that “China and

the United States are currently on a collision course for war – unless both parties

take diff‌icult and painful actions to avert it.”

1

Chinese political theorist Yan

Xuetong also sees this friction and is a proponent of the “moral realism” school

of thought.

2

This school addresses “the question of how a rising power can

engage in effective competition with the dominate state in an international system

... [and] one day overtake the dominant state.”

3

Yan argues that “[i]n order to

reduce the amount of friction caused by a nation’s rise, moral realism posits that

the rising nation should adopt the strategy of expanding its interests in emerging

areas.”

4

China is doing just that in the areas of outer space and cyberspace.

A recent white paper from Chinese off‌icials states that “threats from such new

security domains as outer space and cyberspace will be dealt with to maintain the

common security of the world community.”

5

Some strategists caution against

seeing China’s rise as a threat in the outer space and cyberspace domains, saying

that “China’s status as a rising power distorts how analysts portray Beijing’s

† Fan Gaoming, Public Opinion Warfare, Psychological Warfare, and Legal Warfare, the Three

Major Combat Methods to Rapidly Achieving Victory in War, GLOBAL TIMES (Mar. 8, 2005).

1. GRAHAM ALLISON, DESTINED FOR WAR: CAN AMERICA AND CHINA ESCAPE THUCYDIDES’S TRAP?

vii (2017).

2. Yan Xuetong, Strategic Challenges for China’s Rise, CARNEGIE-TSINGHUA CENTER FOR GLOBAL

POLICY (Feb. 23, 2017), https://perma.cc/J8VU-5E7V.

3. Id.

4. Id.

5. STATE COUNCIL INFO. OFFICE OF THE PEOPLE’S REPUBLIC OF CHINA, CHINA’S MILITARY

STRATEGY (2015), https://perma.cc/JK9A-TKUM. See also Chinese Policy and Doctrine, in GLOBAL

COUNTERSPACE CAPABILITIES: AN OPEN SOURCE ASSESSMENT 1-20 (Brian Weeden, Victoria Samson,

eds., 2018).

436 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 11:435

actions in cyberspace.”

6

They believe that the “China threat narrative is entirely

too pessimistic about future interactions with China” claiming that the source of

such pessimism is “the growth of Chinese power and the fear it causes” within

the defense industry.

7

Others, like renowned scholar John J. Mearsheimer, believe

that China’s rise will see it trying to maximize its relative power, both regionally

and beyond, and will not behave in accordance with the principles of Confucian

pacif‌ism as some believe.

8

Nor is China taking a passive approach to its growth in power and biding its

time as it has seemed to do in the recent past in accordance with Deng Xiaoping’s

wisdom.

9

As China is on a path of returning to a position of leadership in the

region and beyond, it has begun to enlist Chinese international law scholars to

implement a state policy of ‘legal warfare’ to shape the future for a more power-

ful China. The application or formation of international law in areas of new and

advancing technologies, such as innovations in outer space capabilities and activ-

ity in and through cyberspace, can be particularly challenging due to the lack of

specif‌ic treaties and the dearth of state practice directly on point. As such, these

areas – precisely the ones Yan advised China should focus its efforts – are partic-

ularly susceptible to manipulation by a determined state actor such as China.

In theory, all states that are active in international relations have a foreign

policy strategy that helps that state reach its long-term goals. China’s strategy

is born from a deep-seated, millennia old manner in which China sees itself in

relation to other states and in relation to the international order. China’s politi-

cal reality, for much of the last two thousand years, has been a “natural domin-

ion over everything under heaven, a concept known in the Chinese language as

tian xia.”

10

This paper argues that China’s state policy of manipulating interna-

tional law in outer space and cyberspace will be informed by the tianxia world-

view of China as benevolent leader, will increase China’s relative power, and

will empower its authoritarian state. Such an approach is also well in line with

Yan’s theory of how a rising power would act when it is replacing a dominant

power.

11

He posits that during a change in global leadership, norms will change

as well: “When the new international leadership is of a different type than the

previous one, it will establish a new type of norms for purposes of maintaining

6. BRANDON VALERIANO, BENJAMIN JENSEN & RYAN C. MANESS, CYBER STRATEGY: THE EVOLVING

CHARACTER OF POWER AND COERCION 146 (2018).

7. Id. at 144.

8. JOHN J. MEARSHEIMER, THE TRAGEDY OF GREAT POWER POLITICS 406-07 (Updated ed., 2014).

9. See HENRY KISSINGER, ON CHINA 333 (2011).

10. HOWARD W. FRENCH, EVERYTHING UNDER THE HEAVENS: HOW THE PAST HELPS SHAPE CHINA’S

PUSH FOR GLOBAL POWER 4 (2017) (pointing out that translations of this term vary between “all under

heaven” and “everything under the heavens”, but the sense of the term is more important. It has meant

‘all of the known world’, from the Chinese perspective. Transliterations of the term also vary between

two distinct words (tian xia) and a single word (tianxia)). When using direct quotes, I use the variation

found in the original text. Otherwise, I have chosen the single word variation due to its apparent greater

acceptance in the literature.

11. YAN, supra note 2.

2021] REORDERING THE LAW FOR A CHINA WORLD ORDER 437