In the skies, on the seas and into the courts: U.S. confronts Chinese ‘lawfare’

A version of this story appeared in the daily Threat Status newsletter from The Washington Times. Click here to receive Threat Status delivered directly to your inbox each weekday.

China’s military is engaged in aggressive and dangerous behavior in the Asia-Pacific region, employing international law as a pretext, leading the U.S. military to step up its own “counter-lawfare” defenses, the Navy captain and lawyer in charge of the program told The Washington Times.

Capt. Dustin Wallace, staff judge advocate for the Indo-Pacific Command, said Beijing is conducting a deliberate campaign of “lawfare” — the misuse and abuse of international law and legal principles — to advance strategic and military objectives in Asia and worldwide.

“They’ve used the law as a tool for coercion and a pretext for aggression,” Capt. Wallace said in an interview on the sidelines of a military legal affairs conference in Manila.

U.S. officials say Chinese lawfare has been the most visible in recent confrontations in the South China Sea. Capt. Wallace said it amounted to “aggressive and dangerous behavior” against the Philippines, which has a mutual defense treaty with the U.S.

The command two years ago set into motion a unique counter-lawfare program against China’s efforts to assert control of large swaths of the South China Sea, Taiwan and areas around Japan’s disputed Senkaku Islands. Capt. Wallace said the American counter-lawfare program is working with the Australian and Japanese militaries and other U.S. combatant commands.

Lawyers at the command have produced more than two dozen public reports challenging China’s various legal claims to territory or maritime features as invalid.

For example, a recently updated legal report on the disputed Second Thomas Shoal, where China’s coast guard has rammed and used water cannons against Philippine vessels resupplying the site of a grounded tanker that both sides claim as part of their territory, argues in depth that China has no legal claim under international law to the shoal.

The shoal lies within the Philippines’ exclusive economic zone (EEZ), and a 2016 ruling by the International Court of Arbitration ruled that Chinese claims were illegal. Beijing has consistently ignored the international panel’s findings.

“Upholding international law is fundamental to the rules-based international order that benefits all nations,” the report states. “The PRC’s repeated interference with lawful, sovereign activities by the Philippines in the Philippine EEZ — including the area in and around Sierra Madre and [Second Thomas Shoal] — sets a dangerous precedent. If left unchecked, the PRC could be emboldened to take further coercive action against the Philippines and other countries in the region.”

The U.S. military views the dispute near the shoal between Beijing and Manila as among the hottest flash points between the United States and China. Because of Manila’s 1951 mutual defense treaty with Washington, the U.S. could be drawn into the dispute.

The low-grade maritime warfare could create a major regional conflict if the confrontations escalate.

Stepping up

Chinese activity near the shoal has prompted Indo-Pacific Command to step up counter-lawfare efforts more generally, Capt. Wallace said.

Indo-Pacific Command commander Adm. Sam Paparo, who attended the 29-nation legal conference in Manila, told reporters that the United States is prepared to consider a request to escort Philippine vessels to counter the Chinese coast guard harassment.

“We stand ready,” Adm. Paparo said Thursday. U.S. military support is “an entirely reasonable option.”

Philippine armed forces chief Gen. Romeo Brawner said his forces will conduct the maritime missions without U.S. assistance for now, although the U.S. military could help with food supplies if needed.

“[When those awaiting resupply] are on the verge of dying, [that’s] when we will seek the help of the United States,” Gen. Brawner said.

Philippine Defense Secretary Gilberto Teodoro suggested a review of the bilateral defense treaty to address a “dynamic and cunning adversary.”

Capt. Wallace said the counter-lawfare efforts are supported by allies, the State Department and other U.S. agencies as a way to forcefully challenge China’s actions in defiance of international law.

The program also defends the legitimacy of American actions, including “freedom of navigation operations” by the U.S. Navy and allied warships and military overflights that implicitly challenge expansive Chinese maritime claims.

“We’re using legal diplomacy to build partnerships to create a legal consensus across the region,” Capt. Wallace said. “The purpose of that is to, No. 1, highlight — ‘expose and oppose’ — what the PRC is doing in terms of their lawfare activities.”

The program employs what Capt. Wallace calls “legal vigilance” to monitor, identify and publicize Chinese efforts to use international law to its advantage in the region and worldwide. U.S. information operations are then used to publicize and counter the Chinese actions.

The Chinese military “wants to win without fighting,” Capt. Wallace said, and lawfare is one of three ways short of open warfare to achieve its ends.

“In terms of legal warfare, [the Chinese] will abuse and misstate the law to create a veneer of legitimacy. And then they’ll use that veneer of legitimacy to justify the actions that they’re taking,” he said.

China’s People’s Liberation Army regards legal warfare as a form of combat that seeks “legal principle superiority” as a means of coercion or a justification for aggression.

Lawfare on the Hill

Congress is also focusing on ways to combat hostile lawfare. The Senate version of the pending fiscal 2025 defense authorization bill contains a provision requiring the Pentagon to report on “hostile legal actions.”

The Philippines is not the only place China has turned to legal means to advance its regional military objectives.

China enacted a revised law in 2021 that gives its large fleet of coast guard vessels the authority to fire on any vessels Beijing deems to have violated its maritime territory.

In June 2023, the Chinese Foreign Ministry unilaterally declared that the 100-mile-wide Taiwan Strait is not international waters but an internal Chinese territorial sea, part of the mainland’s exclusive economic zone. The United States, Taiwan and other regional states rejected the declaration as illegal and continue to conduct military operations in the strait as international waters.

Capt. Wallace said the August conference focused on freedom of navigation and commerce in the region, the sovereign equality of all nations and the peaceful resolution of disputes.

Maritime awareness, the role of East Asian nations in settling disputes and the concerns of Pacific island nations were also discussed.

All the issues represented shared values for the regional nations participating in the conference, Capt. Wallace said, noting that “these are also the values being undermined by the PRC’s aggressive, unlawful and dangerous behaviors.”

China is not alone. Russia also used specious international legal arguments to justify its invasion of Ukraine, and North Korea is challenging the authority of the United Nations to place restrictions on its nuclear and missile programs, he said.

Not every representative of the nations attending the conference agreed on the items discussed, but there was general agreement on the basic framework of preserving the U.S.-led rule-based international order.

China has rejected the validity of the current system, saying it was designed partly to keep China from rising economically and militarily. Beijing officials have challenged the concept by asking, “Whose rules and whose order?”

President Xi Jinping has aggressively promoted China’s version of communism worldwide through several initiatives, including the Belt and Road global infrastructure financing plan and the Global Security Initiative.

Chinese officials frequently insist they are adhering to international law and that it is the U.S. that is violating long-observed understandings on the status of Taiwan and other issues.

Those claims have been undercut by Beijing’s refusal to recognize the 2016 international arbitration ruling siding with the Philippines and rejecting China’s claims to own more than 90% of the South China Sea.

Navy Cmdr. Timothy Boyle, a former lawfare official at the Indo-Pacific Command, said China’s legal campaign against Taiwan’s legitimacy has been a particular concern for U.S. military officials in the region.

“There are countless examples of legal warfare in action, but most concerning is China’s continuing preparation of the legal environment for a possible future invasion of Taiwan,” Cmdr. Boyle stated in a recent article published by the U.S. Military Academy at West Point.

China is using a 2005 anti-secession law and other legal measures to advance its interpretation of the “One China principle” to contend that has legal sovereignty over Taiwan and would be justified in taking over the self-ruled island, peacefully or otherwise.

The U.S. government’s interpretation of the “One China” principle does not recognize Chinese sovereignty over Taiwan and states that Taiwan’s status should be resolved peacefully.

“Legal warfare pervades China’s global propagation of distorted legal narratives, enforcement of overreaching domestic laws, co-opting of international institutions, and civil-military fusion that erodes key distinctions in international law to China’s benefit,” Cmdr. Boyle said.

Defeating PLA efforts to achieve legal principle superiority “is the cornerstone of Indo-Pacom’s theory of law-based deterrence,” he added.

The counter-lawfare program is a good first step but more must be done, said Cmdr. Boyle, now with the Naval War College.

Counter-lawfare supports “deterrence by denial” in challenging various legal claims. He said U.S. lawfare can also support “deterrence by punishment” through economic and other sanctions and offensive litigation.