With Air Defense Zone, China is Waging Lawfare
Image Credit: Wikimedia Commons

With Air Defense Zone, China is Waging Lawfare

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The tension surrounding the East China Sea Air Defense Identification Zone (ADIZ) is being covered in the kind of exhaustive detail that is rarely given to Asia’s maritime disputes. Many reports have surfaced claiming that the move might have been a strategic blunder for China. Yet, I’ve yet to see any reports explaining in precise details what China was hoping to accomplish by creating the ADIZ.

To be sure, Beijing probably took some joy in seeing the anger the move sparked in Tokyo, particularly given that it perceives its creation of the East China Sea ADIZ as little different from Japan purchase of the Diaoyu/Senkaku Islands last year. But foreign policy is rarely based solely on vengeance. Indeed, creating the East China Sea ADIZ was much more sophisticated and part of a larger strategy China has been pursuing long before last weekend.

In essence, the East China Sea ADIZ is part of China’s “lawfare” strategy toward its maritime disputes. “Lawfare,” as used in the context of international warfare, is often attributed to retired Air Force General Charles Dunlap, who defined it in a famous 2001 essay as “the use of law as a weapon of war.” Interestingly, according to the spectacular Lawfare blog, Dunlap was preempted by two PLA officers who wrote in a 1999 book, Unrestricted Warfare, that lawfare “is a nation’s use of legalized international institutions to achieve strategic ends.”

In what M. Taylor Fravel called creating “new facts on the water,” China’s approach to the South and East China Seas has been to try to establish its sovereignty over contested areas through the use of a combination of military power and international law. Specifically, as is well known, it has sought to increase its maritime patrols over the entire South China Sea through the creation of Sansha City garrison, and has basically seized control over the Scarborough Shoal and, increasingly, the Second Thomas Shoal. It has also sought to challenge Japan’s administrative control over the Diaoyu/Senkaku Islands by increasing its maritime patrols and air flights over them.

There is a clear unambiguous purpose to all this — namely, China is seeking to bolster its claims to sovereignty over these areas in terms of international law. As I explained elsewhere this week, in international law a major way by which states acquire sovereignty over an area is by actually exercising sovereignty (i.e. administering) over it for a “reasonable” period of time and especially having other states acquiesce to its administration. As one famous court opinion put it:

“The modern international law of the acquisition (or attribution) of territory generally requires that there be: an intentional display of power and authority over the territory, by the exercise of jurisdiction and state functions, on a continuous and peaceful basis.”

Another widely cited international legal opinion put it this way:

“a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority.”

That same court continued:

“It is impossible to read the records of the decisions in cases as to territorial sovereignty without observing that in many cases the tribunal has been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other State could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries.”

A 2002 court deciding a sovereignty dispute between Indonesia and Malaysia cited the above opinion before concluding itself: “In particular in the case of very small islands which are uninhabited or not permanently inhabited… which have been of little economic importance… effectivités will indeed generally be scarce [i.e. standards for enforcing sovereignty over scarcely populated areas are not generally as strident as in heavily populated areas].”

The East China Sea ADIZ is aimed at bolstering China’s claims to sovereignty over the Senkaku/Diaoyu Islands by seeking to have China administer their airspace and have other nations recognize this administration by their airliners identifying themselves to Chinese authorities. Since China is regulating air traffic in the area — including dictating the rules airplanes must follow — it is exercising a certain degree of sovereignty.

The U.S. and its allies quickly identified this as Beijing’s aim, which is why they immediately demanded their national airliners refuse to identify themselves to China, and began flying military aircraft through the ADIZ without following China’s administrative rules. Yet other countries without direct stakes in the territorial disputes may decide its best to simply follow China’s orders, which Beijing can later use to fend off challenges to its claims of sovereignty in an international tribunal.

Two further things are worth noting. First, one reason China likely sees it as essential to bolster the legitimacy of its sovereignty claims is because it sees international law as its regional rivals’ most viable long-term strategy for preventing Beijing from seizing these contested areas. After all, the Philippines, Vietnam, and quite possibly someday Japan will not be able to militarily challenge China’s sovereignty claims. However, China’s current claims to sovereignty are based on historical maps and other artifacts that international courts will not uphold against stronger contrary evidence. By sowing doubt as to which party would win a dispute in an international tribunal, China is seeking to eliminate this method for others to fend off its sovereignty challenges.

Secondly, China’s use of lawfare is no doubt troubling in most respects, particularly for those states that have territorial disputes with it. It is worth noting, however, that there is at least one potential positive sign from all this. Namely, if Chinese leaders are seeking to bolster their sovereignty claims under current international law, they evidently don’t intend to radically upend the current international order, or at least are uncertain about their ability to do so even over the long-term.

Of course, intentions can change and there are no guarantees their successors will hold similar views. However, for the time being it appears that Chinese leaders are contemplating having to live with the current international order. That is undoubtedly a good thing.

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