China is indeed engaging in lawfare, but the U. S. has done so in a rather sophisticated manner for many years as well.
Recently, a leading U. S. authority on China’s strategy and former Pentagon senior official Michael Pillsbury stated that “the US government lacks both legal warfare and counter-legal warfare capabilities.” He was speaking specifically about the South China Sea disputes. He then 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 United States has been doing the same thing for years — both in general — and in particular regarding the South China Sea disputes. This blinkered mindset is like the pot calling the kettle black and also ignores 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 U. S. 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 United States both use it in regards to the South China Sea. Pillsbury believes China is engaging in lawfare when it justifies its claims to all the surface features and much of the South China Sea based on historic discovery and usage. 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 dashed 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 other countries. In the case of the submerged Macclesfield Bank the claim 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 United States in interpretation of the relevant international law. Indeed, the U. S.-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.
