Understanding China's Legal Gamesmanship in the Rules-Based Global Order

Abstract

In the contemporary era of international relations, some government officials and non-government observers have posited that the People's Republic of China (PRC) is a rising power that challenges the existing, rules-based global order. But it would be an oversimplification to argue that the PRC always seeks to undermine the rules-based component of that order. Therefore, this chapter examines the PRC’s approach to the rules-based component of the global order more closely, and reaches a more nuanced conclusion. At the outset, this chapter assumes that the PRC is competing with other states within a complicated international system composed of complex relationships. Yet while international conflict is undesirable and international cooperation can be appealing, sandwiched in between the two is international competition, which is not inherently bad or evil. In the competitive aspect of relationships between states, individual states can and will use a range of tactics to further their own interests, to include tactics involving law and rulesets. Over the past two decades, American legal scholars coined the portmanteau “lawfare” and Chinese military strategists have developed the concept of “legal warfare,” both of which are defined as “using law as a weapon.” These labels, however, might be too warlike, provocative, or under inclusive in nature to capture what the PRC is actually doing. If a primary goal of any competition is to win, then one must consider what might be the best way to characterize tactics employed by players for the purpose of winning. In the competitive context of sports and leisure games, particular behavior by participants could be labelled as “gamesmanship,” which has been defined as “the art of winning games without actually cheating.” Therefore, in the context of the PRC and its actions in relation to the existing rules-based global order, one must consider how the PRC is utilizing various “legal gamesmanship” tactics in different situations for a competitive advantage. This chapter argues that the PRC seeks to shape and reshape the normative aspects of the rules-based component of the global order, while also attempting to leverage the instrumental aspects of that same component. To support this argument, this chapter explores several of the common “legal gamesmanship” tactics employed by the PRC, offers specific examples of those employed tactics, and analyzes the purposes of those tactics. While the PRC’s approach to international law is more nuanced than arguing that the PRC always seeks to undermine the rules-based component of the global order, what the PRC is seeking to accomplish remains troubling nonetheless. Thus, this chapter concludes by showing why those tactics should be concerning to other states, and recommends a number of counter-tactics for other states to employ in order to counter the PRC’s “legal gamesmanship.”