Countering Chinese lawfare in the Indo-Pacific

Executive summary

CONTEXT

• Lawfare, initially defined as using law to achieve battlefield objectives, has now evolved into a potent tool in geopolitical competition. Lawfare has been used by revisionist actors instrumentally to support and legitimise their geopolitical objectives.
• The People’s Republic of China (PRC), whose strategic culture is conducive to the instrumentalisation of law, is the most sophisticated practitioner of lawfare. Institutionalised in its strategic doctrine – the ‘three warfares’ – the PRC systematically uses law as a tool to support its strategic objectives.
  
• His Majesty’s (HM) Government is committed to ensuring a free and open Indo-Pacific, and safeguarding international legal frameworks which protect sovereignty and territorial integrity. The PRC’s increasing aggression in the region, which is facilitated by lawfare, threatens to undermine these principles.
• The consequences of the PRC achieving its long-term objectives in the Indo-Pacific region has significant implications for the United Kingdom’s (UK) economic security, military capability and core interests, as well as those of its allies and partners. As lawfare is integral to these objectives, an effective British response to growing Chinese aggression in the Indo-Pacific requires greater acknowledgement of the legal environment as a growing strategic arena of competition in which the PRC is manoeuvring freely.

QUESTIONS THIS POLICY PAPER ADDRESSES:

• How does lawfare support the PRC’s long-term strategic objectives in the Indo-Pacific?

• What is Britain’s current policy towards Chinese lawfare?

• Going forwards, how should Britain counter Chinese lawfare in the Indo-Pacific?

KEY FINDINGS

• In the South China Sea, the PRC uses lawfare to assert expansive jurisdictional claims contrary to the United Nations Convention on the Law of the Sea (UNCLOS). Using legal mischaracterisations, enforcement powers, coercive legal instruments and domestic legislation, Beijing seeks to normalise its own narratives and PRC-created legal positions over time, and establish de facto, irreversible control.

• In the East China Sea, the PRC has used lawfare to challenge Japan’s administrative control of the Senkaku Islands. Through an attritional strategy, Beijing has normalised its presence and intensified enforcement, seeking to usurp Japan’s administered control without military conflict.

• The PRC has used lawfare effectively to isolate Taiwan, legitimise its ‘One China’ principle and build a legal pretext for ‘unification’, a key PRC aim. Lawfare is integral in constraining Taiwan and creating a passive international environment in the event of a military invasion.

• Britain’s current approach to lawfare is sporadic and reactive. To address the reality that law is a growing competitive arena where hostile actors are manoeuvring, it should systematically monitor, anticipate and respond effectively to hostile lawfare. This is critical to safeguard British interests, uphold international norms and systems and prevent the PRC from reshaping the legal and physical landscape in the Indo-Pacific.

RECOMMENDATIONS

To counter Chinese lawfare effectively, HM Government should:

1. Establish a national lawfare strategy: Develop a systematic, whole-of-government lawfare strategy, institutionalised through a dedicated central office to coordinate doctrine, research, operations and educational functions, and ensure inter-departmental and allied integration. A strategy should be rooted in legal resilience, legal vigilance and developing a legal arsenal to identify, manage and respond to active and future Chinese lawfare threats.

2. Recognise lawfare as a systemic challenge: Acknowledge the legal environment as a critical arena of strategic competition and the risks which hostile lawfare poses to British interests, and dedicate resources to tackling lawfare. It should also recognise Chinese lawfare as central to Beijing’s ambitions in order to appreciate fully the nature of threats the UK faces in the Indo-Pacific.

3. Ensure resilience of legal frameworks: Conduct rigorous stress testing of domestic and international legal frameworks and allied legal positions in order to identify and register vulnerabilities exploitable by the PRC, informing policy and international coordination.

4. Deepen understanding of Chinese lawfare: Promote in-depth research, translation and analysis of Chinese legal viewpoints, academic texts, legal judgements and legal narratives to anticipate future Chinese lawfare manoeuvres.

5. Enhance legal vigilance: Institute sophisticated monitoring for early detection and assessment of Chinese legal manoeuvring, and empower the central lawfare office to coordinate internal and allied responses to identified threats by leveraging all instruments of national power in the diplomatic, intelligence, military, economic, financial, information and legal spectrum.
   
   
6. Develop a legal arsenal which can be used against the PRC: Support regional allies and partners in their future legal claims against the PRC, reinforce British leadership in international institutions by delegitimising Chinese narratives and actions, and evaluate and expand UK and allied lawfare to leverage against the PRC.