Mr. Munoz Mosquera is a veteran of the Spanish Armed forces, and is now one of the three NATO senior legal advisors. He joined NATO in year 2000 as a civilian and has been the NATO Commander’s Legal Advisor (Director of the ACO/SHAPE Office of Legal Affairs) since 2014. He holds a honoris causa Master in International Relations from the Universidad Iberoamericana de Ciencia y Tecnología (UNICIT). He is also a Fletcher School of Law and Diplomacy (Tufts) graduate, and has graduated from the NATO Defence College (GFOAC).
Ms. Chalanouli
Ms. Chalanouli is currently in private practice, but has previously served as a deputy Appeals Board member for the EU Satellite Centre, and she has held legal positions at EUROCONTROL, in Brussels, Belgium; the office of the NATO Allied Command Operations (ACO) legal advisor, in SHAPE, Belgium; in NATO Allied Command Transformation-Staff Element Europe, in SHAPE, Belgium; the United Nations Educational, Scientific and Cultural Organisation (UNESCO), in Paris, France; and the Bar Association of Athens, Greece. She has worked as a researcher for the Department of Criminology of the National and Kapodistrian University of Athens.
Ms. Chalanouli studied at the Law School of the National and Kapodistrian University of Athens and the University of Paris II, Panthéon-Assa, graduating with a specialisation in Public International Law. She also studied at the Université Libre de Brussels and graduated with a specialization in European Union Law.
NOTE: The views and opinions presented below are those of the authors alone and do not necessarily represent the views of NATO or any other organization. Likewise, guest posts also do not necessarily reflect the views of Lawfire®, or the Center on Law, Ethics and National Security. The essay has been lightly edited, and bolding has been added to certain sections.
China an Active Practitioner Of Legal Warfare
Introduction
In 1998 Chinese airforce colonels Qiao Liang and Wang Xiangsui in Unrestricted Warfare[1], argued that the United States’ overwhelming focus on traditional war is causing its strategists to overlook alternative forms of warfare. For them, this this narrow view is a fatal error because the traditional way of war – in the classic Clausewitzian sense – leaves China with few options for defence and attack, except in domains other than a purely military one. They go on by considering that nowadays, stand-alone or predominantly military options are no longer adequate since the world’s social and technological evolutions provide alternative ways to wage warfare, and they do not necessarily start with direct military confrontation.
In their view, the alternative means of coercion would be in the realms of international diplomacy/policy, economy and legal, cyberspace and digital infrastructure and networks, terrorism and subversion, strategic communications and public opinion, information operations, and more. They submit that today’s small states and non-state actors are capable of incapacitating more powerful opponents by other than traditional military means by applying the right pressure to their opponents economic and political systems in the right place at the right moment and with the right means.
Unrestricted Warfare’s view of potential ‘battlefields’ is limitless, “and could include environmental warfare, financial warfare, trade warfare, cultural warfare, and legal warfare,” to name just a few. Qiao Liang argued in a subsequent interview that “the first rule of unrestricted warfare is that there are no rules, with nothing forbidden.” That vision clearly transcends any traditional notions of war.[2] The two authors argue that all systems put in place after the Second World War have not been capable of bringing the peace as preached by those presenting new international order for all mankind. They said:
“The collapse of the polarized world resulted in the beasts of local wars roaring out of their cages one by one drenching the nations and regions of Rwanda, Somalia, Bohei, Chechen, Congo and Kosovo in pools of blood. People had again discovered by this time how the efforts for peace over several thousand years could collapse at one single blow!”.[3]
Liang and Xiangsui conclude that this end result is due to the manner – the ‘attitude’ – as to how states apply international law. The colonels further contend that this attitude follows a cost-benefit pattern instead of pursuing a noble goal. In their opinion “[s]mall nations hope to use the rules to protect their own interests, while large nations attempt to utilize the rules to control other nations … However, in any matter, there is always its unbeatable rival and natural enemy.“[4] The colonels conclude by developing the idea that this attitude destroys the rules, which in turn operates to remove the effectiveness of the “invisible boundaries which are acknowledged by the international community”, [5] – a community that abides by those rules, i.e, Rules Based International Order (RBIO).
As a way of conclusion, Unrestricted Warfare seems to have helped China frame a new view of world politics and resolution of disputes, as well as to outline how they could influence and instrumentalize the evolution of international law and shape the RBIO. This view would have been brought to life as opposition to the ‘United States’ attitude’ vis-à-vis international law and politics, which they claim is aimed to serve American interests. Therefore, they present the current strategic competition in terms of interests, and eventually they condone the right to use of all available means to pursue them. They enumerate the right to:
“use all means whatsoever – means that involve the force of arms and means that do not involve the force of arms, means that involve military power and means that do not involve military power, means that entail casualties and means that do not entail casualties – to force the enemy to serve one’s own interests”. [6]
The catalyst of the current ‘Chinese attitude’ is relatively recent: the South China Sea dispute.[7] However, as much as the above may present China as a ‘law warrior’, the actual interest and objective is not the law itself, but to control and manipulate the internal and external public opinions to serve China’s own interests. China’s efforts are focusing upon the perceptual domain, and are aimed to precondition the political, strategic, operations and track arenas in the mid and long-run. China reaches its foreign and military goals by using propaganda means disseminated through a very reliable and flexible apparatus.[8] Doing so puts the emphasis on information warfare, as part of the ‘three warfares’.[9] These consist of public opinion, psychological warfare, and legal warfare. While this paper focuses on legal warfare, the three warfares work together with the aim to mold China’s internal and external audiences.
The following paragraphs intend to briefly describe the basic areas which support China’s strategic competition, and which emphasize the aspects which contribute to China’s legal warfare.
Strategic Preconditioning
China is preconditioning key areas of strategic competition to its favor. Strategic preconditioning must be understood as an imposed or accepted assumption on which rests the effect of something else. China’s preconditioning is manifested in the form of formal legal positions and statements, as well creating fait accomplis in certain situations. China uses theses techniques to impose its views on others in order to draw – and project – a favorable result for its interests. Also, preconditioning is sought through aiming to achieve information superiority, as this would help to gain and maintain off-battlefield supremacy.
Strategic preconditioning in China is run by its Politburo and it is part of its propaganda apparatus. For its implementation and for creating opportunities and effects, China uses its ministries of Foreign Affairs and Defence which operationalize Politburo’s program of work via Leading Small Groups (LSG). This permits China to mold all domains and instruments of power to gain competitive advantage in hybrid environments, and are manifested either as hybrid warfare or gray zone. The National Defence University’s ‘philosophy’ is based on the three warfares, which fit the Chinese People’s Liberation Army (PLA) 2003 political work regulations on the use of propaganda through mass media and laws.[10] Kania argues, after citing several authors, that these are PLA’s ‘essentials’ since mid-2000s. The three warfares are combined “in the effort to more fully utilize information age factors to precondition and influence tactical, operational, and strategic situations”.[11]
China’s preconditioning operates throughout the off-battlefield instruments of power in a Diplomatic, Informational, Military,[12] Economic, Financial, Intelligence, and Legal model[13] (‘DIMEFIL’). This approach obliges China to have a 360-degree view of all domains where the clash between the opponents’ Political, Military, Economic, Social, Infrastructure, and Information system components[14] (‘PMESII’) and China’s DIMEFIL can take place with advantages for Chinese interests.[15] China aims to gain a privileged position in the strategic competition and then lead the strategic preconditioning via the combination of intentional, multidimensional and integrated use of the different instruments of power, investments and technology.
Chinese preconditioning activities are not difficult to identify. For example, take note of China’s actions in its exclusive economic zone, where China claims the United Nations Convention on the Law of the Sea (UNCLOS) does not provide for a comprehensive approach to law enforcement issues. The same is claimed for the continental shelf. Actually, China considers that as a coastal state it may still enjoy rights in order to protect its sovereign rights and interests.[16] For China, this approach is not merely theoretical in the South China Sea, East China Sea and other maritime areas where conflict and disputes exists on rights with non-coastal states, namely, the United States. Rather, most of the tools China is using for preconditioning these areas relate to national and international laws.
However, preconditioning for China is not limited to sea, but it is extended to all that may project a good image of China’s other activities and legitimize them. On this note, China’s influence “has been shifted from foreign governments and business to foreign society”.[17] The three warfares are enablers of said preconditioning, and they are integrated in the Politburo’s propaganda system and sub-systems as ‘essentials’. China has started applying legal warfare on territories historically claimed or disputed, as well as with respect to China’s ‘capitalist’ and cultural interests all around the world.
Legal Side of the Perceptual Domain
Garnaut argues that “[t]he “three warfares” stratagem is rooted in the ancient China’s strategies of “perception warfare” as well as the Communist Party’s origins as an underground and guerrilla organisation.” He says that “[i]t was modernized and codified a decade ago but appeared to escape serious Western military attention until China began to adopt a far more muscular stance over its contested borders from 2009”.[18] China gives priority to time and perception management[19]. On this note Halper argues that non-kinetic activities may have much to do with the projection of an image of control that serves domestic public opinion: “We may well have a piquant and anomalous conclusion of the pre-kinetic phase stopping short of all-out war, with both sides claiming a ‘victory’ – and thereby saving face in their respective domestic context”.[20]
In this mind-set, China considers that its proposals in the frontier of international law and RBIO are relevant for global governance and it is resolved to put forward China’s position and propositions in the body of international law.[21] China is passing, inter alia, new laws in Island Protection, Marine Research and Law Enforcement Measures at Sea. In the meantime it increases the number of international law researchers, military lawyers and the training in International Humanitarian Law and specific areas of public international law of interest for China.[22]
On 7 July 2017 the Colloquium on Common Future in Asia took place at the Asian Academy of International Law where one of the three topics discussed was the ‘Interpretation of Treaties and UNCLOS: The Regime of Islands, Rocks and Offshore Archipelagos’. Huiqing, from the China Border and Oceanography Research Institute of Wuhan University, argued that “[i]n the 21st century, China should draw lessons from the Third Conference on the Law of the Sea, train sufficient talents for the law of the sea, resolutely safeguard the sovereignty of the national territory and the rights and interests of the sea, actively participate in the formulation of rules, and safeguard China’s maritime rights and interests”.[23] All of the above tells a story that China is resolved to gain legal ‘muscle’ in order to better support efforts to gain legitimacy for its views about the practice of international law and, eventually, to shape the RBIO in its favor.
Legal warfare was evident in a Chinese position paper submitted to the UN in 2016.[24] The paper made selective references to public international law in order to support China’s position on the placement of an oil rig within Vietnam’s territorial waters. Nonetheless, and since the UNCLOS established that territorial waters only extend twelve nautical miles from a state’s coastal baselines, China had to change its position by claiming the oil rig was within China’s contiguous zone.[25] However, the “perception war” was won by China at the moment it put forward a formal position paper with the UN Secretary General and no one challenged it a the Security Council.
Finally, the China’s strategy to conquer the perceptual domain is advanced by getting into legal disputes and engaging in legal struggles with the aim of achieving the international legal initiative. This is done with the explicit intent to achieve ‘legal principle superiority’ and moral high ground by citing legal precedents that are artificially developed and Chinese-created. Once legal superiority is achieved, China is capable of operating advantageously in the perceptual domain affecting RBIO, and then being able to effectively influence the international public specialized and non-specialized opinion. This in turn is just a way to feed and support the Politburo’s propaganda major strategy of the ‘Chinese way’.
Legal Warfare taxonomy
Huang presents that the PLA’s operational guidance on the “Political Work stipulates it is ‘a reinforcement of political work in terms of media warfare, psychological warfare, and legal warfare.’ 100 Case Studies for Each Type of the Triple Warfare’, published by the PLA in January 2005, serves as a corroborating supplement to the document”.
Legal warfare[26] intends to use international and domestic laws to claim the legal high ground or assert Chinese positions in its fields and areas of interests. The main goal is to interact with the other warfares in support of the propaganda agenda mandated by the Politburo in order to gain legitimacy of Chinese policies, while at the same time rendering null and void the legal arguments of the internal and external opponents against those policies. Legal warfare has a dual revisionist role, one for internal and external legal systems, and yet another to set precedents that make China gain legitimacy, and eventually, Chinese legal ways gain traction over the time in the RBIO. This allows China to take world’s political initiative, or at least share it but definitely, it will give China eventually a leadership role in the RBIO.
China is aggressively using legal tools and stratagems in its disputes in the South China Sea. The modus operandi to mold UNCLOS implementation and interpretation has been done via coordinated efforts of legal experts and maritime forces, which stretch the long-accepted norms of freedom of navigation and territorial sovereign authority (out to the 200 nautical mile exclusive economic zone), the airspace above it, and possibly outer space. This explains well the rational for the United States Freedom of Navigation Operations (FONOPS) that coulfdlead to confrontation between China and the United States. Eventually, it may also explains why many in the United States continue to think that acceding UNCLOS would enhance its freedom of movement.
China also issues domestic law to extend its national prerogatives limited to international law and cross-border cooperation. This is accompanied by a resolute campaign to significantly increase the number of carefully groomed civilian and military lawyers. There is also a firm decision to dedicate resources to educate in military-related laws, public international law – like law of the sea and international humanitarian law – and to develop exercises to train not only for international and non-international armed conflict situations, but also in crisis response scenarios where China’s interests might be a stake.[27]
China has approached legal warfare in a thoroughly logical way that emphasizes basic methodology.[28] This methodology includes terms that have already been identified and developed by several Western entities for their own studies on the implementation of legal operations in response to legal attacks. China uses the following terms: 1) legal deterrence, 2) legal attack, 3) legal counterattack, and 4) legal binding and legal protection.
China’s taxonomy does not use the term legal resilience,[29] but instead uses the terms ‘legal binding’ and ‘legal protection’ in order to ensure resilience. However, this approach leaves aside the necessary element of readiness and preparedness, which may be explained by concluding that China’s use of legal warfare is more ‘offensive’ than defensive.
Moreover, this offensive approach of China’s use of legal warfare deprives it of a strong legal resilience sub-product, i.e., credible legal deterrence. In China, legal deterrence appears to be a standalone element and not the result of a robust legal resilience plan: “A sub-product of Legal Resilience is the creation of Legal Deterrence. Legal Resilience projects a desired posture, which discourages the opponent from using Lawfare partially or totally. The mere understanding by the opponent that a robust Legal Resilience guards the ‘legal front’ will make Lawfare meaningless or at least a non-primary option in Gray Zone environments”.[30]
In the West these four Chinese categories coincide, but the ultimate aim is to build legal resilience and present a deterrence and defence approach: 1) legal deterrence, 2) legal effects, 3) legal response, and 4) legal resilience.[31]
Based on preliminary work conducted in collaboration with NATO Partners and with the University of Exeter, which whom NATO Supreme Headquarters (SHAPE) has established a fellowship program, NATO lawyers have defined three distinct criteria in order to apply the methodology of legal operations response focused on defence activities. A legal attack can be qualified as such only if the following can be identified: a) the existence of an intention is acknowledged to harm the allies and their organizations, their reputation or operations; b) the use of particular instruments allowing qualifying the attack as belonging to the legal field directly or indirectly; and c) finally, the measure of the impact of that attack on the allies and their organizations, reputation or operations.
It is paramount to understand that China legal warfare is a preparedly tool, it is not a standalone actor, tool; rather and as described above, it is part of the larger military or public opinion/media warfare campaign led by the Politburo by using LSG, which, in turn, operationalize a major propaganda strategy. China’s implementation of legal warfare is done at the tactical, operational and strategic levels. However, China’s doctrine considers the legal warfare having more influence at strategic level since it is an instrument that the other instruments of powers need to gain legitimacy.
Lawfare activities
Currently, China’s efforts to precondition and control the activities of its opponents through the law often are difficult to differentiate from ordinary administration chores. These ordinary activities include the increase of complaints in various forums, the creation of new national laws, and growing the number of legal advisors. As to the last, China is working to expand their legal advisors’ expertise in a wider number of fields of study, and to have them participate in international courses and conferences. As cited above, China has increased the number of international legal experts, augmented the legal research into third-party laws and regulations in order to identify their weak points, and modeled international legal customs and laws, especially on sea and technology matters. Legal warfare has been started by China too at the courts of the United States by filing legal motions in American courts aimed at delaying any United States’ denial activities of Chinese ones.
It is paramount for understanding Chinese legal warfare that it is not a given that it operates under the same legal parameters of its opponents.[32] Chang argues that, inter alia, the Japan’s Spratly islands is a good example of it.
“Chinese claim that although Okinotori (controlled by Japan) should not be an island, Chinese-claimed portions of the Spratlys should be. In 2010, they argued that the United States should not engage in naval activities in the Yellow Sea (an international body of water) while they themselves were engaged in major transits of the Miyako Straits. These actions suggest that China does not necessarily feel bound by the rules it invokes … It is difficult, at this time, to determine what those legal warfare measures might entail, but they would likely include adjudication of new frontiers and borders, … and addressing war crimes charges. China almost certainly would also continue to push legal arguments that justified actions it had undertaken”.[33]
These efforts are combined with economic measures, diplomatic-legal steps within international organizations, military exercises, more maritime patrolling, more presence of China in international legal forums, etc. Chinese authorities have in their hands the modulator of the intensity of these activities, as a crisis deepens or military operations are imminent the activities rise.
It is important to make no mistake as to how this is carried out, since many of the legal warfare activities in peace time or hybrid environment situations may be performed by China’s proxies like environmental activists, satellite states or courts of states with universal jurisdiction in order to issue subpoena against decisions makers of states opponent of China. In war time the same techniques will be take place although they will be augmented with the instrumentalization of the international humanitarian law and international human rights, as well as national and international tribunals. All this will take place with heavy public opinion and psychological operations campaigns.
Conclusion
China’s legal warfare has a long-term component in its nature. China’s policies follow the ‘expert farmer’ mentality, where seeds are planted, soil is care and, if all goes well, the crops will be healthy and the harvest will be abundant. The use of legal warfare by China is now a ‘normal good’ in its political and commercial endeavours. It reaches all areas of China’s interests, and it does not belong only to the physical domain, but it plays its major role in the perceptual one.
China approaches the use and abuse of law from an instrumentalization perspective as a result of what its authorities perceive as a Western failure to deliver the promises on of a RBIO world. Now, the Chinese authorities think is their time, and they are resolved to use all instruments of power to impose the ‘Chinese way’. For that the Politburo’s propaganda apparatus – inherited, from the Maoist period – is now instrumental.
This apparatus counts on several essentials, including legal warfare. Moreover, China sees the use of legal warfare as to be conducted under a unified command, the Politburo, and implemented throughout all instruments of power and supported by the LSG. For China, law can be weaponized by presenting aggressive arguments against others and characterizing them as law-avoiders and even out-laws. Within legal warfare, all its fields are opened to be misused at national and international level: the creation and modification of legislation, judicial proceedings, legal statements and practices, academia and education, etc.
Legal warfare for China, like artillery, prepares the ‘terrain’ for further action. Chinese legal warfare is designed to weaken the will of domestic and foreign populations, and to diminish their trust in law as well as in their leaders – all with the purpose of building support for China’s interests. China’s long-term approach is effective in building its narratives and furthering its efforts to achieve legitimacy.
Accordingly, it is imperative for China’s opponents and their allies to work together to improve the available counter-legal warfare tools. These would include creating: a) robust legal awareness indicators; b) well-developed legal vigilance plans; and c) coordinated, effective legal responses. All of this would also require increasing the level of legal training regarding legal operations, and improving the inter-agency interoperability at national and international levels.
Still, as we like to say on Lawfire®, gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
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