December 08, 2010

Lawfare: China’s Weapon of Choice in the South China Sea?

One of the issues you’re likely to read about more frequently is
lawfare. Perhaps an unfamiliar term to some, lawfare is becoming a hot
topic in considering U.S. policy toward the South China Sea – the
subject of a new CNAS project that the natural security team has been
working on.

Let’s begin with a definition. One of the first, penned by Charles Dunlap in 2001,
was “the use of law as a weapon of war.” He later (helpfully) modified
it to “the strategy of using – or misusing – law as a substitute for
traditional military means to achieve an operational objective.”

people prefer to pare down the definition to only the misuse, or
wrongful use, of the law, but I prefer the more neutral definition.
Laws are exploited in many contexts; in some cases, I would argue, laws
are intentionally designed with loopholes. Therefore, using the law to
your advantage isn’t necessarily wrongful.

Now that we have a
definition, what does lawfare have to do with military-to-military
exchanges between the United States and China? Or natural security?

One of China’s “weapons” of choice in the South China Sea is the UN Convention on the Law of the Sea.
The dispute is over permissible activities of U.S. (and other
countries’) military forces within the waters China claims as its
exclusive economic zone (EEZ). A country’s EEZ extends (with some
exceptions and nuances) 200 nautical miles from its shores. The Law of
the Sea preserves the right of the coastal state to exploit the natural
resources of its EEZ. Foreign vessels operating in a coastal state’s
EEZ are subject to only very limited, vague restrictions such as
“peaceful purposes,” “due regard,” and “rights and duties of the Coastal

The U.S. military is not an infrequent visitor to
China’s EEZ, whether by combat ship, survey ship, or a plane on a
reconnaissance mission. China objects to these activities. As Shen
Dingli, Director of the Centre of American Studies at Shanghai’s Fudan
University, explains “China
considers that international law only allows innocent passage for
military vessels (in the EEZ), not activities that could be considered
to have a military purpose.
” The United States, on the other hand,
considers any interference with American vessels in China’s EEZ to be an
obstruction of the freedom of navigation.

China has strong
natural resource interests in the South China Sea. Because of the
potentially vast deposits in the region, China has become more
territorial. In August, China sent a submersible to plant a flag on the ocean floor,
making a symbolic claim and showing the world it had the capability to
reach the floor. Expect to see more from us on this issue as the legal
battle in this region unfolds. Lawfare isn’t a new subject but the
likelihood of China using it in a natural resource-rich region is high.