Gold medal for lawfare? Charles Gartland addresses diplomatic statements in the 4th installment of his lawfare series

Today’s post is the fourth installment of Air Force Lt. Col. Charles Gartland’s series exploring dimensions of the concept of “lawfare,” a topic about which I have great interest.  Charles is certainly establishing himself as one of the nation’s premier ‘lawfare’ thinkers, and this essay is further confirmation of that.  In it he exposes a recent Russia-China diplomatic statement for what it is: lawfare.  His bottom line is a sobering one:

The Joint Statement is China’s blueprint for its future approach to lawfare: redefining time-honored concepts of international law, manipulating that law, and fighting to set the terms of the new laws.  China is strongly signaling that it intends to move lawfare beyond the conventional approach of mere litigation, which seems downright old-fashioned compared to the sophisticated techniques on display here. 

It is important to know how he got to that conclusion, so be sure to read the full essay below.

The Dissimulating Duo: Putin & Xi Take the Gold Medal for Lawfare


Diplomatic Statements as Lawfare – A Critique of: The Joint Statement of the Russian Federation and the People’s Republic of China on the International Relations Entering a New Era and the Global Sustainable Development

by Charles Gartland*

Prior to the Opening Ceremonies of the 2022 Winter Olympics on 4 February, President Vladimir Putin and Chairman Xi Jinping gathered in Beijing to ink an energy deal and release a Joint Statement on the current geopolitical environment.  Most of the media accounts understandably focused on the foreign policy landmarks from the Statement:  There is no mention of the Ukraine crisis; China backed Russia’s position on stiff-arming NATO expansion; and Russia formally embraced China’s position on Taiwan.

This post however embarks on an altogether separate analysis:  The Joint Statement is a masterpiece of lawfare and information warfare.  Recall from previous posts that information warfare, psychological warfare, and legal warfare (lawfare), are all intertwined components of a doctrine known as The Three Warfares.  It is against that doctrinal backdrop that any and all official PRC statements should be assessed, but especially this one, released at a global event, for a global audience, in conjunction with the world’s supreme info-op practitioner, Russia.

The Joint Statement showcases at least three textbook lawfare techniques: 1) redefining foundational Western legal concepts; 2) the manipulation of international law to extract favorable publicity and spin positive news narratives (which in turn distracts onlookers from violations of those same laws); and 3) pioneering new legal norms to gain the advantage of setting the rules that everyone else must follow.

It’s All in How You Frame It:  Figure it out for Yourself, Comrade

Before we launch into the lawfare analysis, a couple of introductory points on the Statement itself.  It is 16 pages long; not a treatise, but not a concise diplomatic note either.  After an approximate one-page (unlabeled) introduction, there follow four Roman-numeral denominated sections.  The sections, just like the introduction, carry no label, and there is no conclusion after Part IV. 

It is interesting to note what a contrast this presents with any government-drafted diplomatic document in the West.  Executive summaries, headings, sub-headings, break-out boxes with bulleted lists, and certainly a conclusion, are staples we’re all familiar with.  (Case in point:  As I wrote this article in Microsoft Word, the automatic “accessibility” feature popped-up reminding me that I should use headings to make things easier on the reader.)

Is there anything to the Statement’s skeletal format?  Putin and Xi are cagey leaders, so it is hard to say—but it’s worth noting that the bare-bones approach leaves the curious reader with no choice but to figure it out for himself:  What exactly are the Joint Statement’s four different parts about?  It’s a clever way of drawing attention to the message, and admittedly, it worked with your author. 

So here you are:  Part I is Democracy & Human Rights, Part II is Economic Development, Public Health, and the Environment; Part III is National & international Security; and Part IV is Regional and Multinational Institutions.  Part III is the longest, consuming about half the document.

Repurposing Democracy & Human Rights

Part I has as its aim to redefine “democracy,” and it does so in two paradoxical ways: first by narrowing the term, and then by broadening it.

     Narrowing Democracy 

In the U.S. and West at large, democracy essentially means rule by the people, e.g. the very first words of the Preamble to the Constitution.  The Joint Statement has a different view of democracy—and it’s not a democracy at all.  The second paragraph of Part I says that “democracy is a means of citizens’ participation in the government…” (emphasis added).  Note the crucial word “means,” as in, the conceit that democracy is not the essence of government, but one aspect of government.

The remainder of the paragraph elaborates on this restricted version of democracy: “There is no one-size-fits-all template… A nation can chose such forms and methods of implementing democracy that would best suit its particular state…”  And finally: “It is only up to the people of the country to decide whether their State is a democratic one.” 

In other words, in China, Chairman Mao, on behalf of the people and through a multi-decade uprising and civil war, decided that a Marxist dictatorship would suit them best.  Other examples of such “repurposed” democracies would be the Democratic People’s Republic of (North) Korea, and the former (East) German Democratic Republic, neither of which are/were genuine republics or democracies.

     Broadening Democracy

But there is more to the play on words.  While on the one hand narrowing the range of democracy, the Statement simultaneously broadens the meaning of democracy to employ it as a measure of the equality in nation-states’ relationships with one another.  The document flatly states “that democratic principles are implemented at the global level,” which means that “exclusive blocs and alliances of convenience” and “attempts at hegemony” go “against the spirit and true values of democracy.” 

Translation:  The U.S., NATO, and AUKUS (all three called-out in various parts of the Statement) are undemocratic for promoting democracy through alliances with like-minded countries, to the exclusion of China and Russia.  Of course, both of those nations have their own regional blocs (which they discuss in the same document!), and China indisputably seeks hegemony in at least Southeast Asia. 

By narrowing democracy at one end, and expanding it at the other, the word is stretched to snapping-point: it means not what it has been recognized to mean, but instead what Xi and Putin intend it to mean.  Democracy is “repurposed.”

    Co-Opting Western Language and Policy-Wonk Speak

As a final point on the theme of repurposing, the Statement is rife with the verbiage of Western policy wonkiness.  Words and phrases like “sustainable development” (mentioned nine times), “diversity” (four times, covering the entire menu of public policy: cultural diversity, civilizational diversity, biological diversity, and civilizational/cultural/historic diversity) and variations on “inclusive” are all co-opted as familiar Western terms, but in the document repurposed to mean something else.

The Manipulation of International Law to Project Favorable Narratives

Part III of the Statement is an excellent illustration of a lawfare technique examined in Professor Orde Kittrie’s seminal Lawfare: Law as a Weapon of War.  Kittrie calls it “compliance leverage disparity” which is essentially the practice of capitalizing on the self-restraint that flows from an adversary’s greater sense of duty to the law.

In the Joint Statement, China and Russia take that concept and add a layer or info-op on top.  They outwardly subscribe and/or extol the law, thereby bestowing prestige on themselves and painting the pretense of amicable participation in the global community, while in reality avoiding the costs of compliance by actually non-complying.

     The INF Treaty

Many examples are present in Part III of the Statement, but perhaps the best is China and Russia singing the praises of the INF Treaty.  Russia and China outdid themselves here, because by invoking it in-tandem, they pull off a double-dissimulation:  China is not even a signatory to the INF, and Russia routinely ignored it—which are the exact two justifications adduced by the U.S. for its withdrawal from the INF in 2017. 

What is more, the Statement condemns the U.S. withdrawal for “undermining global strategic stability.”  The outcome of the INF fiasco for the U.S. is thus the inverse of China and Russia’s gain:  China looks good for rhetorically discussing a praiseworthy goal to which it never signed-up, and Russia signed-up for a praiseworthy goal that it failed to honor in practice.

Yet the U.S. is 1) reputationally besmirched for departing a pact that it followed but others didn’t, and 2) placed at a real strategic disadvantage vis-à-vis the other parties for having abided by the pact for a period of time (viz. Russia and China expanded their arsenals in the meantime, which to debatable degrees means that they were successful in carrying out a form of A2/AD (anti-access, area-denial)).

                Beware Lawfare in Outer-Space

Continuing on the same theme, Part III goes on to lay a future lawfare trap for the U.S., this time regarding international treaties to prevent the weaponization of outer-space. 

In the Statement, China and Russia lambast the U.S. for turning outer-space “into an arena of armed confrontation.”  Yet China and Russia have very unclean hands when it comes to the space domain:  Both China and Russia have successfully employed missiles to destroy orbiting satellites; the Russian experiment unleashed debris posing a mortal hazard to the astronauts in the International Space Station, and China’s strike created a 3,000-piece orbiting debris field. 

In short, the track-record suggests that neither China nor Russia intend to comply with their draft treaty, touted in the Statement, on the prevention of placement of weapons in outer space.  Although they will both be sure to proclaim their peacemaker status for offering it.

Norm-Setting & Playing by Others’ Rules

Russia endorses the PRC’s Global Initiative on Data Security (GIDS), which is the Chinese effort to counter the U.S. “Clean Network” program launched by the Trump Administration in 2020 and continued apace during the Biden Administration. 

Clean Network is a whole-of-government, public and private sector effort spearheaded by the U.S. to ensure that global IT systems, including hardware, software, cell phone apps, and cloud-based services avoid PRC vendors and providers known to compromise personal privacy and corporate data rights. 

Clean Network participants agree to use designated trusted vendors and services, and also to abide by IT security protocols to ensure data integrity.  Chinese companies such as Huwei, ZTE, and Baidu—all of which are required to comply with Chinese government demands for information in their possession—are consequently muscled-out of the international marketplace.  Aside from the adverse economic repercussions to those companies, the longer-term consequence is that the Chinese government is fenced-off from large segments of transnational data streams.

China’s push for the GIDS counter-effort within the Joint Statement, now with Russian backing, reflects the growing importance of being a pioneering norm-setter for cutting edge technologies such as 5G. 

China understands that much more important than winning litigation disputes at international arbitration forums, is being able to write the rules that will govern everyone else’s standards and conduct.  In the realm of cyber security—a medium in which China’s capabilities have attained parity with, if not surpassed the U.S.—setting the norms is the best way to secure a lasting advantage.


China may have run its course at legacy forums such as the Permanent Court of Arbitration for the International Court of Justice (where China lost badly to the Philippines recently over South China Sea encroachments), or WTO trade dispute panels, where China’s record is mixed at best. 

The Joint Statement is China’s blueprint for its future approach to lawfare: redefining time-honored concepts of international law, manipulating that law, and fighting to set the terms of the new laws.  China is strongly signaling that it intends to move lawfare beyond the conventional approach of mere litigation, which seems downright old-fashioned compared to the sophisticated techniques on display here. 

*  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!


You may also like...