Beijing’s “lawfare” has been much in the news in recent years. But writers dilute the term by applying it willy-nilly; they describe political, psychological and diplomatic maneuvers as “lawfare.”
The PRC’s real lawfare is underreported, to say the least, and its full potential looms as a nightmare that has not yet been widely pursued by the Chinese Communist Party beyond the Republic of China.
Real lawfare
We Americans know from domestic politics what lawfare is. Your opponent uses the legal system to harass you, bankrupt you, taint you, stop you from doing something, or all of the above. Sometimes the result is the punishment, but the process too is the punishment.
When the communists buy a space company which has higher priority than they do on “orbital slots and transmission frequencies” with a plan to “tie up other constellation operators in dispute-resolution procedures or force them to turn off their data stream,” this is business, gaming the system, maybe playing dirty. But it is not lawfare.
When Beijing insists that its maritime claims “are based on historic rights and international law,” this is propaganda and diplomacy, not lawfare. Same for submitting “two notes verbales to the UN Security-General, declaring China to have the ‘indisputable sovereign rights and jurisdiction’ ” over certain islands and waters.
To cite a more extravagant error:
[Red] China aggressively engages in [South China Sea] lawfare as part of its information operations strategy. [It] declared its maritime claims to be “undisputable” and said construction of man-made islands was “fair, reasonable and lawful.” Yet, it disregards the United Nations Convention on the Law of the Sea (UNCLOS) by improperly drawing straight baselines, impeding freedom of overflight, and constraining noneconomic activities in claimed exclusive economic zones, despite being an UNCLOS signatory. A 2016 Permanent Court of Arbitration special arbitral tribunal ruled there was no legal or historical basis for [its claims]…. [Red] China, however, continues to “delegitimize and ignore the verdict,” declaring it “nothing more than a piece of paper.”
When Beijing issues maritime claims in violation of UNCLOS, this is not lawfare, it’s propaganda. An international tribunal voids the communist claims. That’s a diplomatic outcome. Communist China denounces the ruling and interferes with traffic as if its claims had received a favorable ruling. That’s bullying force.
Future lawfare
There’s not even an attempt at lawfare here. However, as an ROC judge, KaiChieh Hsu, noted, the propaganda lays the foundation “for future jurisdictional confrontations”; that is, future lawfare.
Another writer notes that the PRC “portrays U.S. navigation in these [South China Sea] waters as a violation of international law. Throughout these engagements, the PRC asserts that it is obeying—even enforcing— the law and the United States is aggressively violating the law, specifically PRC sovereignty.” Yes. But this kind of posturing cannot interfere with navigation or obtain any other result.
The same writer makes a very good point about PRC strategy but erroneously classifies it as lawfare:
Every time an American or a potential partner nation refers to the People’s Republic of China (PRC) as “China,” the PRC is winning strategic legal warfare—or lawfare. Every quip and offhand reference about “China” unwittingly yields to PRC lawfare tactics and furthers the PRC’s agenda. Not only do we legitimize the PRC’s “One-China Principle,” but we also delegitimize strategic ambiguity while we otherwise strive to compete internationally. We are helping the PRC to win.
In referring to themselves as “China,” the communists have set their propaganda to gain some diplomatic advantage, but this is not “lawfare” either.
KaiChieh Hsu more accurately defines legal warfare as warfare that “combines internal subversion with externally crafted laws to reshape regional norms and erode [Taipei’s] sovereignty without firing a shot.”
An “externally crafted law” might be 2005’s Anti-Secession Law directed against the Republic of China. “Article 8 asserts that if ‘peaceful unification’ becomes impossible, the CCP has the right to use ‘non-peaceful means’…. This codified the threat of military force” as a “legal position” justifying Beijing coercion. It provides some (flimsy) legal cover domestically and internationally.
In 2015, Beijing enacted a National Security Law mandating “real-name registration for all users of Chinese internet platforms, even outside of China—thereby extending the PRC’s control over cross-border data and enabling legal action against foreign actors.” This again sets the table for future lawfare.
Most ominously, “The 2023 Counter-Espionage Law and 2024 Anti-Taiwan Independence Provisions criminalized actions by the [ROC] government and civil society under the pretext of ‘national unity.’ Provisions include sanctions barring entry into mainland China, Hong Kong, and Macau; bans on cooperation with PRC entities; and the application of ‘splittism’ charges against so-called die-hard…independence elements.”
Long arm
In other words, Beijing implemented a law governing noncitizens abroad. More table setting—until Beijing starts using local courts against local people and extradition laws where they have extradition treaties.
If you think these examples are a simple Beijing-Taipei affair, consider that as far back as 2019, Red China was deploying “its long-arm national security law and criminal law to prosecute a foreign national for alleged crimes committed outside of the country.” That’s lawfare. Beijing has targeted “individual Westerners such as Adrian Zenz, a German anthropologist China calls a ‘swindler’ because of his research on the Xinjiang internment camps and Uyghur genocide.” In March 2021, state media reported that Zenz was being sued by unnamed companies in Xinjiang demanding that “he apologize, restore their reputations and compensate for their losses.”
One vision of potential communist lawfare is even more chilling. Imagine that the Reds can reach into their deep pockets and “hire powerful law firms in the West” to do their bidding, “dragging governments, companies and individuals into protracted legal battles” (in their home countries!) “to eliminate perceived enemies or to demoralize and bankrupt them.”
Unlike the propaganda and bullying that sometimes passes as lawfare, this would be the real, potent stuff.
The defense against lawfare will be laws: laws that prevent Beijing’s abuse of foreign courts, its use of local attorneys, and its filing of spurious claims. □
James Roth works for a major defense contractor in Virginia.
Also see:
StoptheCCP.org: “What Is This ‘Republic of China’?”
