Lawfare: China’s new gambit for global power

Lawfare is a recent term that encompasses the variety of practices and tactics that are deployed by state as well as non-state actors to achieve tactical advantage in political, military objectives, or sometimes even both. The People’s Republic of China (PRC) is a thoughtful practitioner of lawfare with the intent to achieve its objectives without the need to use military force and instead through the exploitation of the legal systems or existing international organizations. Lawfare is not only engaged to counter international challenges but also to overcome domestic security challenges as has been demonstrated with national issues such as Xinjiang and Hong Kong issues.

The term lawfare has been analyzed and defined by various internationalists, however, it has not yet found a fixed definition due to the different perception of the concept and the vast spectrum that it encompasses. Regarding this paper’s interpretation of lawfare, we will take Major General Charlie Dunlap’s most recent definition of lawfare. General Dunlap first defines lawfare in his essay for Harvard’s Carr Centre for Human Rights Policy at Harvard University as the “use of law as a weapon.” As the dynamics of the international arena evolved and the growing debate surrounding the term in response to the 9/11 incident grew, General Dunlap reviewed the term lawfare and defined it as “the strategy of using —or misusing—law as a substitute for traditional military means to fulfill an operational objective.”

The People’s Republic of China military prioritizes lawfare as its main proceeding mechanism out of the “three warfares” (sān zhan 三战), a concept that has shaped its military’s operations. The “three warfares” refers to a concept brought up in 2003 with the revision of the “regulations regarding political work in the Peoples Liberation Army” conducted by the CPC Central Committee and Central Military Commission and is primarily composed of: (1) Psychological Warfare; (2) Media Warfare;  (3) Legal Warfare—(also referred as “lawfare” or “normfare”.) The instruments used by the PRC for legal warfare include not only international treaties but national laws as well as the full range of legal instruments: legislation, judicial law, legal pronouncements, law enforcement and legal education.

Lawfare in the South China Sea

The Nine-Dash Line

The People’s Republic of China has elevated the concept of lawfare to its highest end for the usage of international and domestic law to claim the legal high ground and assert China’s core interests —a term often used for controversial topics such as Taiwan, Tibet and Xinjiang. The South China Sea (SCS) dispute began in 1947 after Beijing demarcated for the first time its territorial claims over a part of the territory of the SCS encircled by the eleven-dash line on a map—later on reduced to a nine-dash line map—under the rule of the Kuomintang. Beijing argues that its maritime claims are based on historic rights and international law, however, the historical rights seem vague as the sole proof for these claims is a map that was brought in by the PRC Interior Ministry in 1948. In the process, the PRC decided in 2009  to adopt stringent actions and the then top Chinese official referred to the SCS as a “core interest.” In addition, to strengthen its statement Beijing submitted two notes verbales to the UN Security-General, declaring China to have the “indisputable sovereign rights and jurisdiction” over the islands and over the waters as within the nine-dash line map. Countries such as Indonesia, Brunei, Malaysia, the Philippines and Vietnam see themselves afflicted by PRC’s claims given that the territory encircled by the nine-dash line border intercepts these state’s Exclusive Economic Zone (EEZ).

China and the Philippines arbitrary ruling

This dispute over PRC’s claims and years of numerous skirmishes between Chinese boats and fishing vessels from other nations, led to the South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China) on 22nd of January 2013. The Republic of the Philippines instituted arbitral proceedings against the People’s Republic of China under Annex VII to the UNCLOS. The legal actions taken by the Philippines had a global reaction from major world powers and gave the US an opening to interfere in the issue. After PRC released its position paper objecting to the admission of arbitration, the US referred to a section of the position paper that was not in line with the principles of UNCLOS and thus generating clashes over the interpretation of the UNCLOS. In 2016, the Tribunal published its final ruling in favor of the Philippines on several key arguments and concluded that China’s claims to historic rights and its nine-dash line map had no sufficient legal bases under UNCLOS. The President of China, Xi Jinping, did not accept the final ruling, stating that “China’s territorial sovereignty and maritime rights would not be affected by the ruling.”

Artificial Islands

A closer examination of the People’s Republic of China’s activity in the Indo-Pacific would show that Beijing makes use of artificial islands to serve its needs and ambitions. Indeed, the PRC employs lawfare tactics globally with numerous purposes but in this case, it is used to forge relations or assume control over island states across the Indo-Pacific which serves to fulfill China’s aim of expansion and control across the region.Satellite imagery has shown the PRC’s increased efforts to reclaim land in the South China Sea by a rapid expansion through the islands and creation of artificial one on top of coral reefs. The debut of the expansionist strategy began in 2009, causing a revolt among the neighboring countries whose EEZ was seen violated. Despite accusations from several states including the US. The PRC denied all allegations and reinforced its claims over the disputed territorial waters claiming to have sovereignty over the SCS and therefore right to act and build as pleased. Beijing sustained the expansion and construction of the man-made islands in the SCS to assert its sovereignty over these and extend its EEZ as a “necessary national defense facility.” As of now, 20 military outposts have been established between the Paracel Islands and the Spratly Islands effectively pushing out its defensive perimeter and bringing concern to the security of the region as the militarization of the artificial islands enables Beijing to establish control over the areas of the SCS undermining the limitations set by UNCLOS.

Revisionist position towards international treaties

China’s revisionist position towards UNCLOS comes from its belief in the primacy of domestic law over international law. The Supreme People’s Court of China has asserted jurisdiction over all areas under its “sovereign control”, extending to “jurisdictional seas.” It was seen that when Chinese authorities expressed an intent to “rewrite” UNCLOS in 2019, they did so by aligning it with Chinese domestic law. This perspective maintains that foreign military operations within China’s EEZ violate Chinese law, while asserting China's right to conduct military operations within another state's EEZ. The consistency between these laws doesn’t hold and leaves the PRCh in a gray zone of the possibility to navigate in another state’s EEZ. In 2021, China passed a law empowering the China Coast Guard to use force against foreign vessels, contradicting UNCLOS provisions. The rise of tensions between neighboring states and China was significant as Chinese vessels navigated frequently around Vietnam’s EEZ and ignored Vietnam’s Coast Guard’s orders to withdraw. China seeks to redefine freedom of navigation by supporting it in its principle form but violating the sovereignty of other claimant countries in their EEZs. The Chinese definition narrows freedom of navigation to allow commercial cargo ships passage through international waters but excludes military ships and aircraft from conducting operations. China justifies this stance using its 1992 law, thus claiming the right to deny passage to foreign ships with military purposes.

Use of international organizations to gain influence in the international stage

The World Health Organization

The World Health Organization (WHO), with China as one of the founding members, has the aim of ensuring the highest level of health by all people around the world. Within the realm of global health governance, China is exploiting its position as a founding member and one of the top financial contributors of the WHO andincreasingly molding the WHO’s agenda in an attempt to “lead the reform of global governance system.” The PRC has promoted the appointment of individuals sympathetic to Beijing’s agenda, such as Margaret Chan in 2006 as DG of the WHO, to make sure that the WHO’s agenda reflects Beijing's values and principles—as the promotion of implementation of traditional Chinese medicine.

The WHO’s deference to China is a matter of discussion in the international community.  The WHO and its DG Tedros Adhanom have been significantly involved in a controversial criticism over the incline of the latter over the PRC. Experts say how Tedros acted as an outspoken advocate for the Chinese government, especially during the first stages of the Covid-19 outbreak. On the 28th of January 2020, long after the acknowledgement of the outbreak, Tedros and Xi Jinping had a meeting in Beijing. Right after that, Tedros effusively praised Xi Jinping on his leadership and rapid response to the outbreak and commended China for “setting a new standard for outbreak control” and for “maintaining an openness and sharing epidemiological information and data with the WHO”. Two days after their meeting and having assured that Covid-19 was “under control,” DG Tedros declared Covid-19 as a public health emergency of international concern and of the highest level of alarm.

On top of that, Taiwan’s membership to the WHO has been rejected multiple times despite having one of the best healthcare systems in the world and being backed by other members of the WHO. The pressure exercised by the PRC on the WHO is enough to lock out Taiwan from health forums and to continue to isolate Taiwan from the international community. The Chinese Communist Party asserts Taiwan as a part of China and has the intention of incorporating it; thus opposes any bilateral or multilateral efforts that could enhance Taiwan's sovereignty. According to China’s Ministry of Foreign Affairs, the international community has endorsed its “one China principle” in the “Resolution 2758 of the UN General Assembly as a prevailing consensus among the international community.” Therefore, Taiwan’s attempts to participate in Geneve’s World Health Assembly in 2023, under separate representation, was labeled by the PRC as a tactic aimed to promote “Taiwan's independence” separatist activities. China also calls upon certain nations to refrain from feigning confusion, cease politicizing health issues, desist from meddling in China’s internal affairs under the guise of the Taiwan matter, and abandon the misguided tactic of using Taiwan to exert control over China and its internal affairs. The influence exerted on the WHO enables China to wield significant influence over the international health governance, shape institutions and norms in such a way it can impose its interests while simultaneously transforming unattractive narratives—as the Covid-19 narrative—of the PRC and marginalizing dissent voices such as Taiwan’s.

The International Monetary Fund

Despite China’s efforts to exert influence through lawfare, and advance its own agenda in numerous arenas, the International Monetary Fund (IMF) has remained largely unaffected by such endeavors. Instead, China’s attempts to sway the IMF have predominantly been channeled through financial contributions and advocacy for institutional reforms that did not necessarily align with Xi’s agenda. These endeavors have been chiefly aimed at bolstering China’s representation and weight within the IMF, seeking to more accurately reflect its stature as a significant global economic powerhouse, rather than fundamentally reshaping the organization's principles and interests to align with China’s own.

In fact, rather than China influencing the IMF, it’s the other way around as IMF is trying to shape China and provide guidance given that China’s economic downturn has curtailed its ability to assert itself as a prominent player within the IMF. The IMF’s agenda remains largely unaffected by China’s influence as evidenced by the severe evaluations and recommendations provided to China by the organization. This demonstrates the IMF’s continued commitment to operating independently and in pursuit of a mandate to foster economic stability and growth on a global scale.

Space Governance

Space plays a vital role in China’s view of comprehensive national power. The lack of international space laws has allowed Beijing to barge in an attempt to establish the foundations of the legal infrastructure of space that aligns with Xi’s China. The current international legal framework that encompasses the principles governing the activities of States in the exploration and use of outer space, including the moon and other celestial bodies—the Outer Space Treaty 1967 (OST)—is an outdated compilation of laws and principles that leave legal voids that allowing states like China to act around them.  This has set a precedent for a new race between the US and China on technological capabilities, allowing both states to rapidly develop new technologies. The fast development of China’s technological capabilities urges the need for updating the international space law or for the creation of a new treaty that would encompass the legal voids created by technological advancements. The advancement of space capabilities has bolstered China’s military prowess, spurred economic growth, and fostered technological progress, thereby raising the nation's technological prowess. This fosters China's reputation as a leading technological power on the global stage and supports its endeavors in modernization and international competition.

Space being an important but unstable field, leaves room for the PRC to leverage its status as the leading space power. The PRC has been continuously investing in several projects including a series of robotic landings on the moon over the rest of the decade and have announced its plans to land a human mission on the moon by 2030. With this, China attempts to demonstrate its capabilities in space and assert its governance over the field. Yet, China has emphasized international collaboration and long-term presence on the moon through the International Lunar Research Station (ILRS) with Russia, as its main cooperation partner but open to all nations as to facilitate scientific cooperation. The ILRS shows how China will be staying in space for a prolonged period of time and asserts its influence in the space field. This imposes another challenge and the need for framework reform as there will be an increment through the years of space traffic that will need management (STM) and norms for standard lunar and cis-lunar activities.

PRC's involvement in space regulation is a form of lawfare, potentially positioning Chinese as the common language for space travel, symbolizing its dominance in the Space Age.

Environment and climate change

China portrays itself as a country with ambitious climate and environmental policy, so much that in 2020 President Xi Jinping announced his intention to make China a carbon-neutral country by 2060 as well as promising that China’s emissions would reach an absolute peak before 2030. China has been cooperating with the Conference of the Parties (COP) and has been meeting member countries. Beijing has been actively participating in the COP28 in Dubai in 2023 as it gave insights into its evolving energy strategy, as well as potential issues to tackle for 2025. Moreover, China and the US have put aside their differences and jointly issued the Sunnylands Statement before COP28, which indicates China’s commitment to enhance cooperation to address the climate crisis as it is also one of its main concerns on their agenda.

Yet, China did not agree to support the Global Renewables and Energy Efficiency Pledge due to reservations. The PRC demonstrated concerns regarding supplementary agreements and the attainment of specified objectives as well as its dislike for the European Union’s Carbon Border Adjustment Mechanism (CBAM)introduction as it would impact on the trading dynamics. Still, China has not weaponized law in order to align the global climate governance system to its agenda, but instead, Beijing has tried to commit to domestic carbon reduction initiatives and promote the targets for carbon peak and carbon neutrality.

PRC’s use of lawfare to overcome national challenges

Hong Kong Case

The Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China, with John Lee Ka-chiu as chief executive, works under the “one country two systems” principle in order to guarantee their citizens a separate legal and economic system from the PRC in accordance with the Joint Declaration. The status of the HKSAR however is to be revised in 2047 according to the Joint Declaration. Through the use of lawfare, Beijing has encroached on Hong Kong’s freedoms and autonomy repeatedly, disregarding the “one country two systems” principle, meddling in Hong Kong’s elections, stocking mass protests and attempting to accelerate the adhesion of HKSAR to the PRC’s system. In 2014 China’s interference in Hong Kong’s chief executive elections led to mass protests—such as the Umbrella Movement—and to the emergence of many anti-Beijing activist groups. In February 2019, Hong Kong’s Security Bureau proposed a revision of the extradition law allowing the Hong Kong government to consider requests from any state for the extradition of criminal suspects, including countries with which it did not have an extradition treaty such as the PRC. The rejection of the proposed bill by the citizens escalated into a series of revolts and movements in the streets of Hong Kong leading to the prosecutions of protesters and clashes between pro and anti-Beijing protesters.

Despite the extradition bill’s withdrawal due to the mass protests, the National People’s Congress (NPC) successfully imposed a wide-ranging National Security Law (NSL) in June 2020. The NSL serves as an overarching measure that addresses concerns related to the extradition bill and aims of what Beijing perceives as “threats to national security in Hong Kong.” It has made structural changes on the HKSAR government’s relationship with China’s Central government, establishing the PRC’s Government’s direct control over the HKSAR as well as establishing an physical office in Hong Kong in order to safeguard national security, whose staff “will be jointly dispatched by relevant national security authorities under the Central Government.” The implementation of the NSL is a visible use of the lawfare tactic by the PRC.

On March 11, 2021, the NPC adopted a decision to amend certain provisions of the Basic Law related to Hong Kong’s electoral system, significantly reducing the role of direct elections in the selection of HKSAR’s leaders. Based on the premise that Hong Kong’s electoral system “should be conducive to safeguarding China’s national sovereignty, security, and development interests and help maintain the long-term prosperity and stability of Hong Kong,” the decision ordered the HKSAR to significantly expand the size and influence of an existing Hong Kong Election Committee (HKEC) over the electoral process. It also established a Candidate Eligibility Review Committee to vet candidates for LegCo seats, effectively restricting the pool of candidates eligible for office and allowing the central government to have a heavier influence on Hong Kong’s governmental elections. PRC government officials and state-affiliated media framed the decision as ensuring that “patriots” govern Hong Kong. It was no surprise, after the NSL was enacted that the central government would control the 2022 election, and so it was, being the actual Chief Executive John Lee— a pro-Beijing politician— the sole candidate to be approved by the Review Committee established through China’s National Security Law. Internationalists evaluate with fear the rapid decline of Hong Kong’s autonomy since the introduction of the NSL (which will negatively influence the content of an announced Hong Kong’s own National Security Law), and question if Hong Kong still functions under the special administrative status as the PRC continues to erode Hong Kong’s rule of law.

Xinjiang Case

The use of domestic legislation, such as the Anti-Secession Law and the Counter Terrorism Law, to justify the CCP’s action in the region of Xinjiang, is another example of the use of lawfare by the PRC to overcome national issues. The interpretation of these laws provides legal grounds to the PRC for the suppression of dissent and the implementation of security measures in response to “threats” to national unity and stability. The PRC frames its actions within the context of national security and counter-terrorism efforts, which seeks to legitimize and deflects international criticism of the violation of human rights suffered by the citizens of the region of Xinjiang. China has enacted a series of legal measures in Xinjiang including “vocational education and training centers” which are reeducation camps where more than a million Muslims have been arbitrarily detained since 2017. According to the CCP the detainees have been linked to terrorist or extremist activities and therefore detained in camps in order to maintain national security. Beyond the detentions, the Uyghurs, who are the group targeted by the PLA, have been under intense surveillance, forced labor and involuntary sterilizations. These measures have been widely condemned by the international community, however since the 2022 UN report, Beijing has not seemed to be up to changing any policies regarding Xinjiang.

Conclusion

China's embrace of lawfare to advance national interests has been a challenge imposed on the international arena. China’s lawfare has demonstrably achieved some successes. By strategically leveraging its position within international organizations like the World Health Organization, the PRC can exert significant influence on global health governance, potentially shaping agendas and narratives to align with its interests as demonstrated. Similarly, in territorial disputes like the South China Sea, China has deployed lawfare to bolster its claims and establish a legal foundation for its actions. This approach, while contested, allows China to present itself as a rights-bearing actor operating within the international legal system. However, the effectiveness of lawfare is not universal. Beijing’s attempts to reshape the IMF in its image of the PRC’s lawfare tactics limitations. Here, established institutional structures and the resistance of other member states limit China's ability to impose its will. This case highlights that the success of lawfare hinges on the target and the existing power dynamics within an institution.

The visibility of China's lawfare tactics also varies significantly. When domestic legislation is used to justify actions in Hong Kong or Xinjiang, the use of law becomes a starkly visible tool of control. The imposition of the National Security Law in Hong Kong and the legal framework surrounding “vocational education and training centers” in Xinjiang are prime examples. This overt use of lawfare can garner international criticism and raise concerns about human rights violations.

On the contrary, the PRC’s lawfare efforts can be more discreet in other contexts. Its attempts to reshape space law through its growing technological prowess operate in a less conspicuous manner. This subtlety allows China to potentially make incremental gains without attracting immediate international censure.

The effectiveness and visibility of China’s lawfare strategy are intricately linked. Visible uses, while achieving some domestic control, can also provoke international pushback. Conversely, subtler efforts may yield more limited gains but face less immediate resistance or tension. Looking ahead, China’s continued use of lawfare is likely. As China seeks to reshape the global order and assert its interests, lawfare will remain a key tool in its arsenal. However, the international community is becoming increasingly aware of these tactics and pushing back to undermine them. China’s effectiveness of the lawfare strategy in the near future will depend on its ability to adapt to this evolving landscape that is also learning how to dismiss its influence and balance visible assertions of power with more subtle maneuvers to avoid any escalation.