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HOLMES: Lawfare, Chinese style

- - Wednesday, May 2, 2012

ANALYSIS/OPINION:

Many people think the best way to deal with China is to make it a stakeholder in the international system. The idea is that, if China were part of the system, it would play by the system's accepted rules.

This is a good idea with respect to international trade and finance. China has a huge stake not only in the global trading system, even if it doesn't always play by the rules. And of course they have a stake in America's economy as well, because it holds so much of our debt.

But this idea has a serious flaw with respect to international law.

The Chinese do not look at international law the same way we do. They don't accept the idea that international law is intended to codify norms and rules that are acceptable to everyone. Instead, as recent writings of some specialists on China's People's Liberation Army show, they cynically see international law as a realm of conflict in which China seeks unilateral advantage.

The Chinese call this strategy "lawfare" or legal warfare. My colleague at the Heritage Foundation, research fellow and China specialist Dean Cheng, argues that the Chinese see lawfare as an instrument of conflict no different in principle than the use of armed force. The objective is the same: to force adversaries to acquiesce to China's demands. Mr. Cheng explains in a forthcoming paper how people working for the Chinese army have devised specific strategies to use international treaties and other legal claims, not to advance international peace and stability, but rather to weaken the ability of an opponent to resist.

This strategy is already apparent in China's use of the United Nations Convention on the Law of the Sea (UNCLOS) to contest U.S. naval operations. Chinese military leaders invoke UNCLOS when they complain that U.S. ships must turn off their radar or restrict themselves in other ways when they pass through China's 200-mile Exclusive Economic Zone. The U.S. and other nations challenge this interpretation of UNCLOS, but others — including India — share China's view. The U.S. has not ratified UNCLOS, but if it were to do so, China surely would misuse UNCLOS in an attempt to force its views on the U.S.

Another example of Chinese lawfare in action is Beijing's Anti-Secession Law. Adopted at the 10th National People's Congress in March 2005, this law is intended to give China the legal justification for any military (nonpeaceful) move against Taiwan should the latter exert its independence. The implication of the law is that Taiwan is part of China and thus subject to Beijing's laws. The Anti-Secession Law would be used to counter any claims made by Taiwan or the U.S. that a Chinese attack on Taiwan is violating international law.

The Chinese watched closely how countries used "international law" to challenge the U.S. during the Iraq War. They saw how the U.S. and some American officials became the targets of international lawsuits. They saw how critics cited "international law" to wage a campaign against the detention center at Guantanamo Bay, Cuba.

Although China is ambivalent about eroding its own sovereignty by empowering international courts, it is all too happy to support others who use treaties to undermine the legal legitimacy of U.S. actions.

At bottom, China views international law as an instrument of warfare. That means there will be winners and losers. And Beijing means to use international law so that it wins, and the rest of us lose.

Kim R. Holmes, a former assistant secretary of state, is a vice president at the Heritage Foundation (www.heritage.org). Follow him on Twitter @kimsmithholmes.