Delhi must be prepared to counter Beijing’s lawfare

Recent reports of China settling people in the villages called “Xiaokang” (well-off villages) along its border with India are disturbing. Since 2019, China has been constructing villages (double-storey, large, and expansive buildings) along the Line of Actual Control (LAC) in Ladakh and Arunachal Pradesh. This Chinese action is not some ad-hoc activity. Xiaokangs are being constructed from a strategic perspective as part of the Chinese land borders law (LBL) that came into force on January 1, 2022. China enacted the LBL after the Doklam clashes. It signals China’s resolve to settle land border disputes with countries like India on its terms and emphasises civilians cooperating with China’s People’s Liberation Army in land border defence. This law is part of China’s broader and long-term strategy of legal warfare or lawfare, which Charles Dunlap defines as “a method of warfare where law is used as a means of realising a military objective”. China has a long history of lawfare (or “falu zhan”), using domestic and international law to shape the legal context to support State actions. As American scholar Orde Kittrie writes in his book, Lawfare: Law as a Weapon of War, China has a long history of gaming the international legal system for its benefit.

An essential component of Chinese lawfare is “legal preparation of the battlefield”. Jill Goldenziel argues that China uses the law to create facts on the ground that can influence a conflict. For example, in the South China Sea, the Chinese have been aggressive against the Philippines to propel what is known as a nine-dash line narrative, which, according to China, gives it “historical rights” in areas that fall under the Philippine Exclusive Economic Zone (EEZ). So, in areas that fall under the Philippines’s EEZ, China, employing its coast guard law, started massive construction work transforming underwater reefs into above-sea artificial islands with runways and control towers. China’s eventual objective was to use these islands for military purposes. Thus, China was clearly creating facts on the ground to strengthen its legal claims over areas that were part of the Philippines EEZ. The Philippines sued China before the Permanent Court of Arbitration, alleging a violation of the UN Convention on the Law of the Sea, and got a favourable verdict. China resolutely denounced the decision and ran a massive media campaign to delegitimise the verdict.

There are striking parallels between China’s aggression in the South China Sea and its actions along the Indo-China LAC. In both instances, it is evident that China views law as an instrument in the service of the State or, more precisely, the Chinese Communist Party. This is diametrically opposed to the rule of law theory in liberal democracies like India, where the function of law is to constrain State power. Constructing massive villages and now settling in people there under the LBL, is aimed at legitimising and institutionalising attempts at territorial revisionism along the Indo-China LAC. These Xiaokangs can also be used for military purposes. China is creating facts on the ground to cement its legal claims over these territories.

India is responding to China’s infrastructure built up along the LAC, inter alia, through the Vibrant Villages Programme (VVP) launched in 2023. The VVP aims to develop select villages adjoining the northern border in regions like Arunachal Pradesh, and Ladakh. While this is a welcome development aimed at bolstering border infrastructure along the LAC, more must be done to counter Chinese provocation effectively.

India needs to understand that the Chinese game is not just infrastructure development along the LAC but an attempt to create facts on the ground as part of its lawfare strategy to permanently alter the border landscape to its advantage. Without this insight, Beijing’s aggression cannot be successfully countered. India must develop its own lawfare strategy using domestic and international legal instruments. This will require strengthening the Indian State’s legal capacity to employ law to serve the nation’s strategic objectives.

Prabhash Ranjan teaches at the faculty of Legal Studies, South Asian University. The views expressed are personal