China's Maritime Lawfare

• Název práce v češtině: Čínské využívání námořního práva pro šíření vlivu
• Název v anglickém jazyce: China's Maritime Lawfare
• Klíčová slova: Lawfare, China, South China Sea, East China Sea, Maritime Power, UNCLOS
• Klíčová slova anglicky: Lawfare, China, South China Sea, East China Sea, Maritime Power, UNCLOS
• Akademický rok vypsání: 2016/2017
• Typ práce: diplomová práce
• Jazyk práce: angličtina
• Ústav: Katedra bezpečnostních studií (23-KBS)
• Vedoucí / školitel: doc. PhDr. Vít Střítecký, M.Phil., Ph.D.
• Řešitel: skrytý - zadáno vedoucím/školitelem
• Datum přihlášení: 03.07.2017
• Datum zadání: 03.07.2017
• Datum a čas obhajoby: 20.06.2019 00:00
• Místo konání obhajoby: Jinonice
• Datum odevzdání elektronické podoby: 10.05.2019
• Datum proběhlé obhajoby: 20.06.2019
• Oponenti: JUDr. PhDr. Tomáš Bruner, Ph.D.

Seznam odborné literatury

Cheng, D. (2012). Winning Without Fighting: Chinese Legal Warfare. [online] The Heritage Foundation. Available at: https://www.heritage.org/asia/report/winning-without-fighting-chinese-legal- warfare#_ftn5 [Accessed 27 Dec. 2018].
Dunlap Jr., C. (2001). Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts. Duke Law School, Conference Paper.
Dunlap Jr., C. (2010). Does Lawfare Need an Apologia?. Case W. Res. J. Int'l L., 43, pp.121-143.
Dunlap Jr., C. (2015). Lawfare. In: J. Norton Moore, R. Turner and G. Roberts, ed., National Security Law & Policy, 3rd ed. Durham: Carolina Academic Press, pp.823-838.
Dunlap Jr., C. (2017). Lawfare 101: A Primer. Military Review, 97, pp.8-17.
Hsiao, A. (2016). China and the South China Sea “Lawfare”. Issues & Studies, 52(2), pp.1-42.
Hughes, D. (2016). What does Lawfare mean?. Fordham Internaitonal Law School, 40, pp.1-37.
Kittrie, O. (2016). Lawfare: Law as a Weapon of War. New York: Oxford University Press.
Kline, R. (2013). The Pen and the Sword: The People's Republic of China's Effort to Redefine the Exclusive Economic Zone Through Maritime Lawfare and Military Enforcement. Military Law Review, 216, pp.122- 169.
Trachtman, J. (2016). Integrating Lawfare and Warfare. B.C. Int'l & Comp. L. Rev., 39(2), pp.267-282.
Vanhullebusch, M. and Shen, W. (2016). China's Air Defence Identification Zone: Building Security through Lawfare. China Review, 16(1), pp.121-150.

Předběžná náplň práce

CHARLES UNIVERSITY
FACULTY OF SOCIAL SCIENCES
Institute of Security Studies



Diploma thesis proposal



China’s Maritime Lawfare












Author: Wietse Straatsma
Supervisor: Vit Stritecky
Study programme: International Security Studies
Year of proposal submission: 2019

Introduction
The relationship between law and war is a long and complicated one. Throughout history laws have been created to prevent war or regulate it. However, due to the anarchic nature of international society, international laws are difficult to uphold. This is especially the case during war. In a time where international institutions have become more powerful and pervasive and conventional war increasingly a faux-pas, it is interesting to see how some nations choose to pursue their interest with such legal constrains. Some nations seek the fringes or loopholes of the international laws, others consciously use the framework of international law to their advantage. An interesting area where conflict and law meets is the maritime sphere. Although two-thirds of the planet is covered by water, its laws and borders are much less clearly defined than those on land. Now that mankind is increasingly able and in need to exploit maritime resources, the ambiguity of maritime law and borders increasingly leads to conflict. This is especially the case for rapidly developing countries. China, for example, has various disputes with its neighbors in the East China Sea (ECS) and South China Sea (SCS). At times, international maritime law is very clear about the “rightful” owner in a conflict and at other times it’s more ambiguous. Regardless, to protect its interests, China has pushed ahead and taken a more assertive position in both seas. Due to its regional power, the country has been able to oppose claims from neighboring states. Besides using its conventional regional power, China has supported its claims with legal statements. However, in doing so, China has built a record of occasionally siding with commonly accepted interpretations of maritime international law and on occasion not doing so. It is interesting to study how china uses a combination of power and legal ambiguity to further consolidate its power and claims in the East and South China Sea. In a time where the international society relies heavily on international law, such infringements on its credibility and applicability should be taken seriously. International law protects the weakests states in the international system and strengthens international stability. Through China’s efforts it positions itself in a way that it is the regional hegemon of conventional power with weakened international constraints on its will to further its political goals. If China continues down this path international law in its entirity could be weakened.
Research target, research question
In order for this thesis to be able to answer how china uses Lawfare to consolidate its regional maritime power, several sub questions have to be answered first. For starters, the regional sphere of China has to be established. This paper will focus on the East China Sea and South China Sea. Next, the first set of sub questions need to address whether China is indeed using behaviour consistent with the concept of Lawfare in the East China Sea and South China Sea. Also, needs to be proven that such behaviour does not coincidentally coincide with Lawfare, but is part of a thought-out approach or overarching strategy.

Q1 Does China use Lawfare as a strategy in the East China Sea?
Q2 Does China use Lawfare as a strategy in the South China Sea?

Having established whether or not China uses behaviour consistent with the concept of Lawfare in these bodies of water, the paper can move on to the next issue. The fact that China uses a strategy parallel to Lawfare in the East China Sea and South China Sea does not necessarily mean China is successfully consolidating its maritime power in these bodies of water. Therefore, the next set of sub-questions needs to address whether China is successfully strengthening its maritime power in regional waters.

Q3 Is China strengthening its maritime power in the East China Sea?
Q4 Is China strengthening its maritime power in the South China Sea?

Having established whether China is indeed following a conscious strategy of Lawfare in its regional bodies of water, we can finally answer the overarching research question that’s at the heart of this paper.

Q0 How does China use Lawfare as a strategy to strengthen its regional maritime power?

Literature review
Lawfare
It can be said that the Dutch Hugo Grotius, the so-called “father of international law” was the first to link law and warfare together (Kittrie, 2016; 4). During the 17th century, competition between European countries over seafaring trade routes was intense. As part of this, Portugal was trying to protect its lucrative spice trade from the Dutch East India Company (DEIC) by deploying its navy. The DEIC tasked Hugo Grotius to devise a theory under which “war might rightly be waged against, and prize taken from the Portuguese,” as they had “wrongfully tried to exclude the Dutch” (Kittrie. 2016; 4). In 1609, Grotius published his classic work, Mare Liberum. In this book, Hugo Grotius made the case that under the “Law of Nations,” “the sea is common to all” (Kittrie, 2016; 5). By the start of the 1700s, many states had adopted his idea the freedom of the seas. In effect, by creating the concept of freedom of the seas as part of international law, Grotius had allowed the Dutch to use law to accomplish an objective which their navy could not have achieved.
Although the nexus between warfare and law is not new, the term ‘lawfare’ as coined by Charles Dunlap, Jr. in 2001 has given a new perspective on the interplay between war and law. The term ‘lawfare’ is a portmanteau of the words law and warfare, as it refers to the combination of the two concepts. However, as this combination of the two concepts is still quite broad, this deserves further explanation. In his seminal work on lawfare, published in 2001, Dunlap first defined lawfare as “the use of law as a weapon of war” (Dunlap, 2001; 2). He continued that this is the most recent facet of 21st century combat. In this same work, Dunlap defined lawfare a second time, slightly differently, as “a method of warfare where law is used as a means of realizing a military objective” (Dunlap, 2001; 4). As discussion on this concept grew after his first publication, Dunlap further developed and specified his definition. In his following essays, Dunlap adopted a third definition of lawfare, defining it as “the strategy of using-or misusing- law as a substitute for traditional military means to achieve a warfighting objective” (Dunlap, 2015; 824). The key to lawfare is that it describes circumstances when law can be used to create similar effects as those often pursued through conventional war. This final definition is the one this paper will build upon. It is worth noting that Dunlap’s final interpretation of lawfare is neither positive nor negative, but value neutral. Lawfare is simply a tool which can be wielded by either-or both- side(s) of a conflict. As Dunlap himself put it quite eloquently lawfare is “simply another kind of weapon, one that is produced, metaphorically speaking, by beating law books into swords” (Kittrie, 2016; 6). Oftentimes authors will consider lawfare as being inherently negative and destructive to international law. Even Dunlap’s initial 2001 approach to larfare was a negative perspective on the strategies being used against the United States.
Another important source for this paper is the in 2016 published book by Orde F. Kittrie; Lawfare: Law as a Weapon of War. This work is the first book to be written about lawfare as defined by Dunlap. Besides giving a summary of the evolution of the concept since 2001, Kittrie further expands on these works.
The concept of lawfare has also been used in a domestic or business sector sense. In this interpretation it is often used by big businesses to tie competition down in longwinded legal disputes. However, this is much different from the conceptualization of Dunlap so it falls outside the scope of this paper. Kittrie spends ample attention to the typology of lawfare in her work. According to her, lawfare can be divided into two interrelated forms, namely “instrumental lawfare” and “compliance-leverage disparity lawfare”. The former of the two relates to “the instrumental use of legal tools to achieve the same or similar effects as those traditionally sought from conventional kinetic military action” (kittrie, 2016; 11). A wide variety of laws and forums can be used as instrumental lawfare to achieve objectives. Generally, this is the type of lawfare most used by Westerns state and non-state actors. These actors can range from international organizations and states to militias, NGOs, and even individual activists. These various actors can use a wide array of legal tools such as international, national, and sub-national laws and forums and even combinations of these. Through these means, actors can create new laws, reinterpret existing laws, prosecute adversaries, generate intrusive and protracted investigations and influence law advisory opinions. As this paper focuses on China’s use of Lawfare in the maritime sphere, the paper will adjust its framework within lawfare accordingly. Therefore, it will focus on the instruments a state actor uses in international law to achieve their goals.
Complicance-leverage disparity lawfare is typically used on the battlefield and “is designed to gain advantage from the greater influence that law, typically the law of armed conflict, and its processes exerts over an adversary” (Kittrie 2016; 11). The concept becomes much clearer when it is broken down. Compliance refers to compliance with the law rather than with the demands of an adversary. The disparity is the difference in pull a certain (type of) international law may have over different actors. Kittrie defines compliance-leverage disparity as “the leverage which law and its processes (or particular laws and their processes) exert, over a particular actor, in the direction of compliance (kittrie, 2016; 20). It is this disparity that creates an opportunity for lawfare practitioners. Because of the nature of this kind of lawfare where the actor uses lawfare against another actor over which law has more leverage, this is often used more by non-state actors such as terrorists. Various factors can influence the disparity in leverage that a law or forum has over different lawfare targets. Different political and legal cultures attribute varying importance to compliance with law. This difference in ‘law abidingness’ is highly dependent on the importance of law for an actor (kittrie, 2016; 21). Furthermore, the benefits of compliance have to be taken into account, this will often differ between lawfare targets and lawfare practitioners. Moreover, the prospects of the future and precedents a current issue may set for the future has to be taken into account.

Lawfare China
Despite the fact that the concept of lawfare was first coined by a US general, the United States has not taken advantage of the full potential of the subject, nor has it realized any consolidated efforts to counter other’s lawfare strategies. This is contrasted by China, which has fully embraced lawfare as one of their foreign policy tools. As a matter of fact, China has included lawfare into major component of its strategic doctrine. This is illustrated by the PRC military’s Basics of International Law for Modern Soldiers which conveys to its readers that “we should not feel completely bound by specific articles and stipulations detrimental to the defense of our national interests. We should therefore always apply international laws flexibly in the defense of our national interests and dignity, appealing to those aspects beneficial to our country while evading those detrimental to our interests” (Kittrie, 2016; 22). For this reason, the importance of viewing China’s actions and strategy in its regional seas through the perspective of lawfare cannot be understated.
Already in 1996, PRC President Jiang Zemin adviced Chinese experts on international law that China needed to be “adapt at international law as a weapon.” (Kittrie, 2016; 5). Moreover, several Chinese books have been written by law experts with ties to the Chinese government (Cheng, 2012). Most of these Chinese works use the same word to describe a concept very similar to Dunlap’s interpretation of lawfare, this word being ‘Falu Zhan’ (法律戰). This concept is also part of the “three warfares” (Cheng, 2012) . The fact that this concept has so readily been embraced by the PRC shows its significance. Sadly, in the West, lawfare has not been widely used to as a framework to analyse and explain some of China’s behaviour in the international sphere. Due to the language barrier, an in depth literature review of Falu Zhan cannot be included in this paper. Therefore, Dunlap’s definition and interpretation will be the basis and guideline this paper will build on.
Theoretical/conceptual framework
In order for this paper to address the research question and its sub-questions mentioned before, the concepts used in these questions need to be addressed and conceptualized. To reiterate, this thesis will aim to answer how China uses lawfare as a strategy to strengthen its regional maritime power. To fully grasp the intentioned scope of this work three concepts need to be delineated, these three being; lawfare, China’s regional waters, and maritime power.
Lawfare has been addressed thoroughly in the literature review. The concept used in this paper will be based on Charles Dunlap Jr.’s definition. Moreover, Kittrie’s work expounding on the typology and framework around Dunlap’s definition will be used to establish the framework used in this paper. Within this framework lawfare practitioners will be used to referred to on an ad hoc basis in situations where they can be considered to be using lawfare. Similarly, in these cases lawfare targets are those against whom lawfare is or was aimed. This distinction needs to be made clear as an actor can be a lawfare practitioner in one situation and a target in another. To make sure that any maritime strategy of China is accounted for, regional waters will be considered to be the South China Sea and East China Sea as delineated by the People’s Republic of China. At times where the maritime delineation of these bodies of water clashed between China and its neighbours, the view of the PRC will be taken to focus the scope. Maritime power itself is a concept that arguably deserves an entire literature review of itself. Maritime power is not to be confused with Sea Power or Naval Power, which are generally used to explain the means by which a nation extends its military power onto the seas. Despite its varied interpretations, maritime power is often used to describe a nation’s capacity to use the seas in defiance of rivals and competitors. The concept can consist of diverse elements such as naval ships, shoreline length, harbours, exclusive economic zone, army and air force support, nuclear capabilities, fisheries, resources, geographic locale, offshore oil, marine treaties, and more. The model of Vijay Sakhuja will be used as a framework to consider the size of China’s Maritime power. To establish whether or not China’s maritime power has been strengthened by its alleged lawfare, the influence of lawfare actions on separate constituents of maritime power.
The paper will work from the hypothesis that a) China does consciously use lawfare in the East China Sea; b) China does consciously use lawfare in the South China Sea; c) China’s maritime power in the East China Sea is increasing; d) China’s maritime power in the South China Sea is increasing. Therefore, it is expected that China is indeed consciously using a strategy similar to lawfare to successfully consolidate its maritime power in regional waters.
Methodology and data
Key to analysing any country’s use of lawfare is of course how it uses which types of laws and the forums related to them. In the case of analysing China’s use of lawfare in regional waters, the international law dealing with the interstate maritime sphere need to be examined. International maritime law is primarily build upon the United Nations Convention on the Law of the Sea (UNCLOS). The PRC took part in negotiations from 1973 to 1982 and ratified the convention in 1996. Therefore, not only is this convention guiding for any legal maritime conflicts in the world, it should be binding international law for China as well. This legal texts and the forums created around it since, will be used to examine how China’s actions in regional waters compare to the predominant interpretation of international maritime law. One example of the forums used to enforce UNCLOS is the Permanent Court of Arbitration, which was established under Annex VII of the UNCLOS. Rulings, such as the South China Sea Arbitration between China and the Philippines, will play an important role in establishing whether or not China complies with international law.
China’s actions will largely be studied through open source intelligence. China’s current actions in its regional waters and particularly in the South China Sea have drawn considerable attention. As a result many sources can be found on China’s presence in the area. This includes but is not limited to naval presence, island building, and resource exploitation. By using these sources Chinas evolving presence and activities in its regional waters can be analysed over time in recent years. These actions can then be compared to any important international laws which applies to China’s regional waters. Furthermore, Chinese whitepapers and strategic documents will prove invaluable in establishing whether or not the PRC uses a conscious strategy of lawfare. Any explicit mentioning of using and misusing law as a part of strategic advantage gives credence to the case that China’s actions are part of a conscious strategy rather than simply coincidental. As this thesis is a case study on China’s use of maritime lawfare, it will focus on qualitative methods to gather foundational information to answer the research question.
Planned thesis outline
• Introduction
• Theoretical framework
o Lawfare as a concept
o Maritime power
• International Maritime Law
o UNCLOS
o China’s ratifications and agreements
• Historical background
o China in the East China Sea
o China in the South China Sea
• Current developments
o South China Sea
o East China Sea
o Reasons for China’s commitment
• Methodology
• China’s actions as a form of Lawfare
• How China’s actions consolidate and strengthen its regional maritime power
• Conclusion