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China, US Both Using Lawfare in the South China Sea

2017-10-12 17:50:49       source:NISCSS

October 12, 2017

By Mark J.Valencia

Recently, a leading US authority on China’s strategy and former senior Pentagon official Michael Pillsbury suggested that “the US government lacks both legal warfare and counter legal warfare capabilities.” He was speaking specifically about the South China Sea disputes.


He added that “the Chinese government seems to be better organized to design and implement clever legal tactics to defy international norms with impunity.”


Other experts have also alleged that China is engaging in such tactics. But like Pillsbury, they virtually ignore the fact that the US has been doing the same thing for years — both in general and regarding the South China Sea disputes in particular. This blinkered mind-set is like the pot calling the kettle black and ignoring the forest for the trees.


Lawfare is “a form of asymmetric warfare, consisting of using the legal system against an enemy, such as by damaging or delegitimizing them, tying up their time or winning a public relations victory.” It often has a negative connotation. According to the concept’s US popularizer, General Charles Dunlap, it is a “cynical manipulation of the rule of law and the humanitarian values it represents.” The Lawfare Project (the legal arm of the pro-Israeli community), holds that lawfare is “the abuse of Western laws and judicial systems to achieve strategic military or political ends.”


Whether the use of this legal tool is disingenuous or clever, or both, China and the US both use it with regard to the South China Sea. Pillsbury believes China is engaging in lawfare when it justifies its claims to all surface features and much of the South China Sea based on historic discovery and usage.


Furthermore, according to conservative columnist Bill Gertz, the latest example of China’s use of lawfare is its “Four Sha” (four sands) claim. He sees this as a transition from its nine-dash line claim to a more internationally legitimate position. With this “new” position, China is asserting sovereignty over four groups of features — the Paracels, the Spratlys, Pratas, and Macclesfield Bank. These claims are disputed by others; in the case of the submerged Macclesfield Bank, it is at odds with the prevalent interpretation of relevant existing international law.


But the real problem is that there are fundamental differences between China and the US in their interpretations of the relevant international law. Indeed, the US-China struggle for control of the South China Sea is symptomatic of a much deeper clash of values, national interests, and perceived destinies. Their ongoing and intensifying confrontation there is driven by a fundamental disconnect in that they both see themselves as “exceptional” nations that have the “heaven sent” mission to lead and save humanity. Each considers it their right and destiny to dominate and shape the international order to fit their needs. As such, they have their own interpretations of international norms and rules like the Law of the Sea that further their national interest.


As prominent American strategic thinker Graham Allison says, to China, the rules based international order is an “order in which America makes the rules and others obey the orders.” For both, the existing international norms and rules do not apply if their observance would thwart the pursuit of their “national interest.”


Nevertheless, some US analysts and policy makers still cling to the forlorn hope “that China will become a liberal democracy, or at least accept a subordinate place in the American-led international order.” These strategists assume that China could be induced to define its own interests the way the US wanted it to and that it will eventually become a status quo power embedded in the US-led system. But under China’s burgeoning soft and hard power, the Western-built and US-led international order — including its interpretations of key aspects of the Law of the Sea — are hemorrhaging.


But more fundamentally, it is the US that has long used and will continue to use lawfare to promote its values and interests. Indeed, lawfare is an integral part of its strategy to continue to dominate the world, and in particular, Asia and the South China Sea. China certainly believes, as some circumstantial evidence indicates, that the US was behind the Philippines’ taking China to the UN Tribunal for the Law of the Sea. If so, this was a cynical lawfare tactic by the US, considering that it has not ratified the treaty that provides access to this dispute resolution mechanism. In any case, it certainly supported the move.


The arbitration was a successful lawfare tactic in that the Philippines was legally victorious. However, in the short term this was a Pyrrhic victory. In spite of the adverse ruling, China has maintained and even advanced its political position regarding the South China Sea.


Encouragement for the Philippines-initiated arbitration is but one example of US use of or support for the use of lawfare regarding the South China Sea imbroglio. Others include its ubiquitous Commander’s Handbook on Operational Law which it holds out as a model for allies; its Pacific Command’s annual international military law and operations conferences which it uses to advance its legal positions; its Department of State’s Limits in the Seas series which detail the US position on various countries’ maritime claims; and its kinetic demonstrations of its legal positions through US Navy Freedom of Navigation operations.


China and the US have repeatedly clashed verbally and kinetically over the interpretation of the relevant laws governing freedom of navigation and overflight in the South China Sea. They disagree on whether there should be a distinction between military and commercial vessels, and the circumstances under which the activities of military vessels and aircraft can be constrained.


But these US-China disputes over freedom of navigation in the South China Sea are only a microcosm of their global lawfare contest. Since the end of World War II, the US and its allies have created, constructed, and led the evolution of the international legal order. The US now interprets and, when convenient, defends it if it is in its interests to do so. Indeed, it uses its interpretation of international law to back up and maintain the supremacy — and the sanctity — of its values and interests, particularly regarding the South China Sea.


However, it is understandable that a rising China wants to interpret the relevant norms and existing international law, and if necessary bend them, to suit its national interests. This clash between their values and interests can be seen in the contested evolution of norms and law in frontier areas like cyber security; space; preventive and preemptive defense; and drone attacks and assassinations across international borders.


The point is that China is indeed engaging in lawfare. But the US has done so in a rather sophisticated manner for many years. The problem for Pillsbury and like-minded strategists is that China has become quite successful at challenging the existing international system when it needs to do so in its own interests. Because international law is always evolving with the practice of nations, we can expect more challenges from China and others, and further erosion of the existing US-led international order. This is particularly so regarding the international norms and laws that guide the interactions of nations in the South China Sea.

Mark J. Valencia is Adjunct Senior Scholar at the National Institute for South China Sea Studies, Haikou, China.




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