“Out to Sea with the CCP: A Contemporary Example of Lawfare with China”
Today’s guest post is by Lt Col Charles J Gartland who is the Law Chair Director at the U.S. Air Force Judge Advocate General’s School. He addresses a subject near and dear to me: lawfare. In particular, he gives us an excellent overview of lawfare as implemented by China, and then dissects it in the context of China’s actions in the South China Sea. This is the first in what I hope to be a series by Lt Col Gartland.
Out to Sea with the CCP: A Contemporary Example of Lawfare with China
by Lt Col Charles J. Gartland, USAF
Great Power Competition with China dominates the US national security discussion. President Biden’s Interim National Security Guidance picks up where President Trump’s 2017 National Security Strategy left off—milder in tone, but still denouncing Chinese authoritarianism at home and abroad.
What both documents overlook is that underlying China’s overt actions—whether it be expansion in the South China Sea (SCS) or the encirclement of Taiwan—is a subtle yet vital conceit to how China wages total warfare: the law. In the West, we call it lawfare.
Defining Lawfare
To quote one of the most common definitions, lawfare is: “the strategy of using—or misusing—law as a substitute for traditional military means to achieve an operational objective.”
Note that this definition does not necessarily require litigation or the employment of tribunals (although it could). As will be seen below, the mere making of a legal argument, whether to shape a news cycle narrative or stake-out a new legal precedent, can constitute lawfare.
In order to understand Chinese acts of lawfare, it is first important to grasp the overarching political system from which those acts emanate.
The Chinese Communist Party (CCP)
Unlike the West, where political parties operate within the nation-state, in China, the Chinese Communist Party (CCP) controls the state and all entities of import within it. The People’s Liberation Army (PLA) is the armed wing of the CCP, not the People’s Republic of China (PRC). [1]
Likewise with commerce. Leadership positions for State-Owned Enterprises (SOEs), which generate about a third of China’s industrial production, are handpicked by the CCP. [2]
Even non-SOEs bear the imprint of the Party, with most of the larger firms having CCP operatives working within them to exert influence over corporate board membership and decisionmaking. [3] [4]
In short, a fundamental tenet of CCP ideology, rooted in Marxist-Leninist thought, is that everything and everyone within the state is at the service of the party. [5]
The general implication for the Chinese legal system at a macro-level is therefore straightforward: the law exists to further the prerogatives of the Party, not to secure individual rights or promote some broader sense of justice.
In other words, as many commentators have phrased it, China does not have “rule of law,” but rather “rule by law.” This conception of law is of course antithetical to Western notions of justice, whereby the law serves to protect the individual from the state, e.g. the Fourth Amendment requiring a warrant based upon probable cause, or the First Amendment guaranteeing freedom of speech.
The CCP’s instrumentalist “rule by law” philosophy, in which the law is essentially a political tool of the party, is not merely an academic theory or speculation by Westerners to explain PRC activity. Rather, it is the law in China.
In 2003 the PRC implemented the Political Work Regulations of the Chinese People’s Liberation Army, a regulation which required the General Political Department to pursue a concept known as “the three warfares.”
The Three Warfares & Lawfare
The three warfares are trifold: public opinion warfare, psychological warfare, and legal warfare (lawfare). All three are interrelated and reinforce one another, although lawfare is unique in that it does not occur apart from the first two.
Instead, lawfare may be used to lay the groundwork for the other two, or alternatively, to function as a fortifying mechanism once the other two have been executed. The crucial point, however, is that no matter how lawfare is utilized by the CCP, it is necessarily part of an overall strategy to magnify military power. In short, lawfare is a part of combat.
The South China Sea
Ongoing PLA aggression in the SCS furnishes a contemporary and obvious example of how the lawfare component of the three warfares paradigm functions in practice.
The strategic objective in the SCS is PRC regional hegemony, which in part requires a constant military presence. The presence is justified by a claim to sovereignty over the entire area within the infamous Chinese-declared “nine-dash-line,” (NDL).
The NDL zone that encompasses nearly 80% of the SCS, and within it, multiple island clusters such as the Spratly Islands. The bottom portion of the NDL stretches out to waters hundreds of miles away from the Chinese mainland coast.
The NDL itself has no basis in international law—one of many explicit findings arrived at by a tribunal convened in 2013 under the UN Convention for the Law of the Sea (UNCLOS). China disputes the tribunal’s jurisdiction and has ignored its findings (which is a bit of lawfare unto itself; see below).
Situated within the NDL are the Spratly Islands. On the Islands, the PLA builds artificial islands (“reclamation projects”) and constructs permanent military facilities upon them, from which the PLA can project military power.
Lawfare in the South China Sea
The lawfare component plays out as follows: The artificial islands are used as the justification for extending China’s Exclusive Economic Zone (EEZ). A country’s EEZ has traditionally been considered in economic terms (hence the phrase): a 200 mile zone extending from a country’s coastline.
Within that zone, a nation has the exclusive right to exploit natural resources, e.g. mineral rights or fishing activities. However, other nations’ freedom of navigation (FON) should remain unhampered by the EEZ.
Centuries’ worth of FON precedent support the unconstrained movement of even naval forces within another country’s EEZ. The UNCLOS, to which China is a party (the US is not), enshrines the above understanding of an EEZ.
The PRC, by contrast, construes the EEZ as a zone of absolute or near-absolute sovereignty in which other nations’ FON is severely inhibited. This amounts to a novel, separate legal regime which the PRC has cut from whole cloth and which is in direct violation of the UNCLOS.
This unique conception of EEZs is reiterated over time in official diplomatic statements [6] and party-influenced press organs, [7] which is in-turn reinforced by the PLA’s continued presence on the islands and the force projected from it.
The military strategic objective is thus solidified and justified by the legal doctrine, while the political and the legal instruments of power work together to enable the military strategy.
The above example illustrates that PRC lawfare can take many forms and need not involve actual litigation. PRC lawfare can amount to the simple assertion of a legal theory, repeated over time, in conjunction with kinetic activity.
Indeed, this form of lawfare is arguably more powerful than conventional litigation. The latter operates within a legal system; the former generates an entirely new system and understanding. (And in this case, that new understanding defies the outcome of litigation, witness the willful disregard the UNCLOS tribunal described above.)
The U.S. Response to CCP Lawfare
The West generally and the U.S. specifically, has no cohesive, all-encompassing strategy or vision equivalent to the PRC’s three warfares. And the specific element of lawfare has no place at all in Joint Doctrine.
Fortunately, there is a nascent U.S. response to CCP lawfare. DoJ’s China Initiative for instance, has been zealously pursued and resulted in the successful prosecution of dozens of industrial espionage cases. However, this is purely a criminal litigation effort, and thus covers only one dimension of lawfare. As we’ve seen in this post, a far more comprehensive strategy will be required to confront the CCP’s all-encompassing the three warfares.
Notes
[1] William A. Joseph, Politics in China: An Introduction, 3rd Ed. (Oxford Univ. Press, 2019), p. 214.
[2] Clive Hamilton & Mareike Ohlberg, Hidden Hand: Exposing How the Chinese Communist Party is Reshaping the World, (Oneworld Publications: 2020), p. 96.
[3] Ibid.
[4] A 2020 Wall Street Journal Exclusive Report found that of the 650 European firms acquired by Chinese entities between 2010 and 2020, 161 of the acquisitions were made by firms in which the Chinese state, and by extension the CCP, exerted a “high” degree of influence. Available at: https://www.wsj.com/articles/behind-chinas-decade-of-european-deals-state-investors-evade-notice-11601458202?mod=saved_content
[5] Joseph, Politics in China, pp. 159-164, 201-205.
[6] [7] For an extensive listing of both, see Congressional Research Service, U.S.-China Strategic Competition in South and East China Seas: Background and Issues for Congress (March 18, 2021) pp. 80-83.
Disclaimers:
The views and opinions expressed here are the author’s alone and do not necessarily reflect the official policy or position of the U.S. Air Force the Judge Advocate General’s Corps, the Department of Defense, or any other agency of the U.S. government.
Moreover, the views and opinion expressed by guest authors do not necessarily reflect those of the Center on Law, Ethics and National Security, or Duke University.
About the author
Lieutenant Colonel Charles J. Gartland is the Law Chair Director at the U.S. Air Force Judge Advocate General’s School. Among other previous positions, he has served as a deployed Staff Judge Advocate with Special Operations Command and as Agency counsel defending the Air Force against constitutional and APA claims in federal court.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
