Multi-Domain Legal Warfare: China’s Coordinated Attack on International Rule of Law

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| May 28, 2024

China legal warfare

Law has emerged as an integral element of gray zone competition. State and non-State actors alike increasingly view law as a means to shape operational spaces, forge perceptions of legitimacy, constrain potential adversaries, and refashion the international system, whether in lieu of, in preparation for, or in conjunction with the use of military force. This is perhaps most pronounced in the Indo-Pacific where the People’s Republic of China (PRC) remains the United States’ pacing challenge and continues to engage in controversial lawfare.

The PRC is the only country with both the intent to reshape the international order and, increasingly, the economic, diplomatic, military, and technological power to do it. To carry out its intent, the PRC exploits and misrepresents international law for its own benefit and at the expense of other nations. This post examines China’s worrying lawfare in the domains of cyber, maritime, air, and outer space.

Chinese Lawfare

In October 2023, the U.S. Department of Defense (DoD) released its annual report on “Military and Security Developments Involving the People’s Republic of China” which “serves as an authoritative assessment on military and security developments involving the PRC.” That year’s report spotlighted the PRC’s misuse of international and domestic law under the People’s Liberation Army’s (PLA) three warfares concept. This includes “legal warfare” as a component of broader political influence operations. Among many examples of legal warfare, the report cites to the PRC’s propagation of legally baseless maritime claims, conflation of its “One China principle” with foreign “One China” policies, and a “double standard” in the “interpretation and enforcement of international law” in relation to foreign military activities in the exclusive economic zone.

To anticipate and counter China’s political influence, we must understand and appreciate China’s use (and misuse) of law in strategic competition. The PRC masterfully leverages its competitors’ compliance with international law in several ways. Sometimes the PRC engages in the legitimate use of legal processes to achieve a strategic end. For example, China has ratified numerous legally binding international agreements. Like other countries, it has a strong incentive to commit itself in this way and create a favorable legal framework for trade and investment.

But there are examples of blatant appropriation and exploitation on the fringes of law. In October 2020, China and Cambodia officially signed The Free Trade Agreement, which allows for greater and more open trade relations between the two countries despite the Cambodian government’s poor human rights and antidemocratic record. Cambodia has a significant trade deficit with China, importing over $3.9 billion compared to its exports of $830 million. In 2021, China accounted for 443% of Cambodia’s foreign debt. As part of repayment, the Cambodian government gave over 4.6 million hectares in concessions to 107 Chinese-owned firms between 1994 and 2012. There is now speculation that China will establish a naval base in Cambodia. If established, the military presence will be on the northern portion of Cambodia’s Ream Naval Base on the Gulf of Thailand, and China’s second overseas outpost.

Finally, there is the PRC’s blatant departure from the law. On July 12, 2016, the arbitral tribunal adjudicating the Philippines’ case against China in the South China Sea ruled overwhelmingly in favor of the Philippines. The tribunal determined that major elements of China’s excessive maritime claims, including its nine-dash line, were unlawful. China reacted negatively to the ruling, calling it “null and void.”

As these three examples highlight, when convenient and in its interest, China adopts and abides by international law. But it also exploits the law as an instrument of coercion to gain strategic advantage over others, upends international law, and destabilizes regions. Excessive maritime claims, violations of sovereignty by high-altitude balloons, and illegal, unreported, and unregulated fishing, for example, represent threats and challenges to the rule of law.

China also employs its double standards and its opportunistic approach to international law to achieve strategic effects in anticipated domains of warfare. The fixed nature of physical domains—two surface domains with unique challenges on land and sea, two vertical domains defined by atmospheric versus orbital effects, and cyberspace—can all be impacted by legal warfare. These whole-of-government efforts by the PRC are intended to provide the perception of legality and legitimacy behind their coercive and unlawful actions. China is acutely aware of domain interplay in legal warfare; maritime claims affect air space, outer space impacts ground communications, and even terrestrial borders shape cyberspace.

Cyber Domain

Territorial integrity and inviolability stand as bedrock principles in international law. China views ownership over data and information networks as a key to protecting its sovereignty. Yet, China continues to harvest mass amounts of data worldwide. China’s perspective on cyber sovereignty encompasses both the technology and the actual data transmitted and stored across the Internet.

The inviolability of data, however, appears to be a one-sided notion. The Chinese National Security Law, enacted in July 2015, grants the Chinese Communist Party (CCP) substantial authority to implement a robust cybersecurity framework. For example, the “Public Pledge of Self-Regulation and Professional Ethics for China Internet Industry” requires Chinese technology companies to monitor their websites and eliminate prohibited material.

Under the Chinese Cybersecurity Law, Chinese legal theories of cyberspace sovereignty control and justify use of publicly available information. A key requirement for technology companies operating in China, especially for international businesses, is data localization. Under the law, even data centers must be housed on Chinese soil. In other words, China requires data collected inside its borders to be stored within. Data localization allows China to better control online content through physical jurisdiction claims over the data. This stringent domestic “Great Firewall” stands in stark contrast to China’s routine practice of harvesting data from other States, creating a double-standard that makes it hard to predict whether China will respect the burgeoning international laws governing cyberspace.

Maritime Domain

The PRC rotates a set of layered arguments to justify maritime claims, constrain freedom of navigation for military purposes, and question the legitimacy of the existing maritime order in a way that degrades and reshapes rules and norms that govern relations between States.

Chinese exploitation, manipulation, and reinterpretation of both international and domestic law are foundational to its legal warfare strategy. China is engaged in a concerted effort to undermine customary international law reflected in the UN Law of the Sea Convention (UNCLOS) through the deliberate misuse of law. Increased coercive behavior by China’s Navy, Coast Guard, and maritime militia—a vast network of private vessels controlled by the PRC—are apparent both qualitatively and quantitatively. The number of Chinese maritime militia vessels around key features of the South China Sea (SCS) grew by 35% last year as Beijing continued to bolster its presence amid rising regional tensions. Satellite imagery of nine features in the SCS, including reefs and shoals, identified an average of 195 militia ships present on any given day. In addition, by incorporating commercial assets, like using commercial roll-on roll-off ferries for military operations, China obscures crucial lines between warships and non-warships, civilians and combatants, and civilian objects and military objectives.

China’s maritime militia, a force of vessels ostensibly engaged in commercial fishing, are working with Chinese law enforcement and military personnel to achieve political objectives in disputed waters. The People’s Armed Forces Maritime Militia (PAFMM), a reserve force comprising of mobilized personnel and a fishing fleet, have united with the PLA Navy and Coast Guard to support the militarization process. Some PAFMM units are equipped with steel-hulled ships containing armories and water cannons.

China deploys PAFMM in gray zone operations at a level designed to frustrate effective responses by the other parties involved. China maintained a persistent militia presence near its outpost at Gaven Reefs. And smaller groups were seen at reefs east of Philippine occupied Thitu and at Iroquois Reef.

PAFMM must follow international law, including customary international law reflected in UNCLOS. Despite this obligation, the PRC uses PAFMM to advance excessive claims and prevent other nations from exercising their rights. By exploiting civilian protections upheld by international law, PAFMM is emboldened to infringe on other nations’ lawful uses of the sea, as evidenced by PAFMM’s ubiquitous presence in disputed maritime zones and routine interference with the sovereign rights of other nations.

PAFMM’s civilian façade provides the PRC with a cloak of deniability for insisting that the militia is not a valid military objective. Yet, in the event of an international armed conflict, under the principles of international humanitarian law, PAFMM vessels owned by or operating under the exclusive control of the PLA may be considered valid military objectives during armed conflict by their nature, purpose, use, war-sustaining, or war-supporting roles, unless such vessels are innocently employed. It is unclear if the Chinese truly understand or appreciate this fact.

Across the South and East China Seas, the ubiquity of Chinese maritime militia vessels poses a persistent challenge to the exercise of coastal State rights to natural resources. In May 2023, Chinese maritime militia and a supposed survey vessel maneuvered for weeks in Vietnam’s exclusive economic zone in the vicinity of oil and gas platforms.

In 2023, China’s official agencies consistently used the phrase “take resolute and forceful measures to defend sovereignty” in public statements. The distant water fishing (DWF) fleet is yet another way China projects influence outside its borders and immediate periphery to further growing overseas interests and advance its foreign policy goals.

China continues to violate international law through distant-water operations, and its DWF fleet is frequently associated with illegal fishing, with more than 300 confirmed and 240 suspected fisheries offenses between 2015 and 2019. Last year, at least 183 vessels in China’s DWF fleet were suspected of involvement in illegal, unreported, and unregulated fishing.

The PRC’s DWF fleet is growing and increasingly operates in contested waters or infringes on other nations’ exclusive economic zones. While not officially sanctioned, the CCP does provide financial and policy supportto China’s DWF fleet. Much of this DWF takes place in the territorial waters of low-income countries and is often associated with unsustainable levels of extraction and with illegal fishing activities.

Air Domain

China’s legal warfare continues beyond land and sea to the vertical domains of air and space. In January 2024, the PRC announced unilateral changes to civilian flight routes in the Taiwan Strait in breach of prior commitments to Taiwan authorities and absent coordination with concerned parties as required by International Civil Aviation Organization (ICAO) guidance. These changes provide the PRC with an asymmetric advantage and give rise to new dilemmas for Taiwan authorities responsible for managing complex civil air traffic corridors and air defenses, respectively.

The result in terms of legal warfare is that the PLA now has more pathways to disguise military aircraft as civil aviation. The potential for the PLA to mask military flights in civil flight routes could threaten peace and stability in the Taiwan Strait and reduce Taiwan’s ability to identify, warn, and defend against attack. The PRC’s failure to coordinate as required by ICAO guidance undermines the rules-based international order.

If left unchecked, the PRC could be emboldened to take further coercive action against Taiwan and others in violation of international law, rules, and norms. At higher altitudes, the PRC’s balloon surveillance program operated with impunity, violating international law and the sovereignty of more than 40 States across five continents. In the wake of exposing the PRC’s balloon surveillance program, open-source media reported that PRC military and civilian researchers published more than 1,000 papers and reports on so-called “near space” and the idea that high-altitude operations are somehow not regulated by international law.

Outer Space Domain

In outer space, China’s use of Article V of the Outer Space Treaty to issue a communiqué in 2021 is another interesting example of their multi-domain approach to legal warfare. The PRC complained on two occasions about Starlink satellites, belonging to the non-geostationary satellite orbit system being deployed by SpaceX, allegedly nearly colliding with the PRC’s space station. PRC objectives were to discredit and sequester the utility of Starlink and non-governmental space activities, and in general, eat away at space system advantages for national security and defense. The use of Article V to address the PRC’s concern was “not only unorthodox but appears to be a means not to address a valid concern regarding [its men and women on the space station] but rather an implement in a lawfare action” by bastardizing existing legal mechanisms as part of great power competition.

Concluding Thoughts

Going forward, Chinese legal warfare will extend beyond their maritime militia and high-altitude balloons to increased drone and underwater vehicle operations to cyberspace and artificial intelligence. The United States must document and publicize PRC violations of the law to deter future PRC aggression. Through sustained effort, the United States must manage competition with the PRC while defending national interests, stand with allies and partners, and uphold a free and open international order for all nations.

China’s legal warfare strategy is a five-domain affront on peace, stability, and international order. The destruction of the rules-based order vital to international security and prosperity establishes conditions that undermine the shared interests of democracies. Should the United States fail to identify and counter increasingly aggressive Chinese legal warfare, these illegal actions could establish new international norms adversarial to U.S. interests. Countering Chinese legal warfare must be accomplished through building relationships across agencies, engaging international stakeholders, and leading development of a campaign to counter the misuse of the law.

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LCDR Jordan Foley, JAGC, USN is the Department Head for Operational Law at the Navy’s Office of the Judge Advocate General National Security Law Division. The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.

 

 

 

 

 

Photo credit: U.S. Navy Photo by Mass Communication Specialist 1st Class Tyler Thompson