Beijing’s use of domestic law underpins its international expansionism
The spotlight on the growing Chinese military threat against Taiwan has helped obscure China’s more serious military confrontation with India along an extended, mountainous frontier.
Although the intensifying multiple military standoffs between nuclear-armed titans China and India have grabbed few headlines, the risk of renewed border skirmishing, if not outright war, is increasing. Indeed, the Pentagon’s newly released annual report on China says the Chinese military is bracing for a two-front war scenario — “any escalation of border tensions with India, as well as preparing to support a Taiwan contingency.”
A reminder of the looming risks is China’s latest provocation — the enactment of a Land Borders Law — which appears primarily aimed at advancing its territorial revisionism in the Himalayas.
The law effectively negates the possibility of peacefully resolving its territorial disputes with India. Instead of mutually settled borders, the law enables unilaterally imposed borders.
The ongoing military standoffs began more than 18 months ago when a shocked India discovered that China had stealthily encroached on several key border areas in the northernmost Indian territory of Ladakh. The discovery led to the first deadly Chinese-Indian military clashes since 1975, including China’s first combat deaths in decades.
Unlike China’s expansionism elsewhere, including swallowing Hong Kong and redrawing maritime frontiers in the South China Sea without firing a shot, its Himalayan aggression has run into armed resistance. India has not only more than matched Chinese military deployments, but in recent days, it test-fired a nuclear-capable intercontinental ballistic missile as a warning shot to China and conducted daring border paratrooper exercises simulating territory capture behind enemy lines.
The deepening military stalemate at the Himalayan border led Beijing to enact its new Land Borders Law, which gives its imprimatur to assertive actions along land frontiers. Those actions emulate China’s aggressive moves in the East and South China Seas, including an intensifying campaign against the Japan-controlled Senkaku Islands, claimed by Beijing as the Diaoyu, through aerial and maritime incursions.
The Land Borders Law, which India’s foreign ministry slammed as a “unilateral move,” extends to transboundary river waters. According to Chinese state media, the law upholds China’s “legitimate rights and interests” over the Tibet-originating transboundary rivers like the Brahmaputra and Mekong.
The law’s assertion of full sovereignty over cross-border waters means that China has a declared right to divert as much of the shared waters as it wishes, regardless of downstream impacts. Nikkei Asia has reported in an online article, “China law tightens land borders amid regional tensions,” that Beijing is toying with the idea of limiting the volume of cross-border water flows to India during conflicts, by citing the “protection and reasonable use” stipulation of its Land Borders Law.
In fact, underscoring its readiness to weaponize even the sharing of water data on upstream river flows, China in 2017 inexplicably refused to supply hydrological data to India in violation of the terms of two bilateral agreements. The one-year data denial resulted in preventable deaths as the monsoon-swollen Brahmaputra overran its banks, leaving a major trail of destruction, especially in India’s Assam state.
The Land Borders Law is just the latest example of how an increasingly aggressive China is using domestic law to underpin its expansionism. Beijing, for example, used a new national security law to crush Hong Kong’s pro-democracy movement and bring the city into political lockstep with the Chinese Communist Party in breach of China’s United Nations-registered treaty with Britain.
The Land Borders Law came just months after China’s new Coast Guard Law took effect. Several countries, including Japan, the United States, the Philippines and Vietnam, have raised concerns about the Coast Guard Law, which clearly violates the United Nations Convention on the Law of the Sea.
But just as the Coast Guard Law is aimed at accelerating China’s maritime militarization, the Land Borders Law will speed up its militarization of the Himalayas. And just as the Coast Guard Law authorizes the use of lethal force in disputed waters claimed by China, the land law permits the use of force in defending and furthering Chinese claims to contested lands.
Simply put, Beijing enacts domestic law to violate international law. China’s success in unraveling Hong Kong’s autonomy through a national security law could inspire it to enact a Taiwan-specific legislation or activate its 2005 Anti-Secession Law against that island democracy.
By employing domestic law as a cover for unlawful actions, China illustrates that international law is powerless against the powerful, especially scofflaw states. But China’s expansionism often breaches international law with the aim, ironically, of asserting its own claims and rights under international law.
Examples include China’s human-made militarized islands in the South China Sea and its current militarized village-building spree in disputed Himalayan borderlands in order to extend or consolidate its control over strategically important areas that India, Bhutan and Nepal maintain fall within their national boundaries.
Effective control is the sine qua non of a strong territorial claim in international law. Armed patrols do not prove effective control, but civilian settlements do. So, the Chinese Communist Party is callously uprooting Tibetan nomads and forcing them to settle in its artificial new Himalayan border villages, where ethnic Han Chinese party members serve as resident overseers.
Whether China can legitimize unlawful actions retroactively in this manner is a moot point. But lawfare, or the misuse and abuse of law for political and military ends, is a key component of China’s asymmetrical or hybrid warfare.
This blends conventional and irregular tactics with incremental territorial encroachment — salami-slicing — psychological manipulation, disinformation and coercive diplomacy to help advance its expansionism.
Brahma Chellaney is a geostrategist and author of nine books, including “Asian Juggernaut: The Rise of China, India and Japan.”