Lawfare by China against Taiwan Aims to Create New Norm: Japan Is Next

The People's Republic of China has done it again, and by "it" I do not mean anything good.

The "it" is the PRC's use — actually, abuse — of "lawfare," unilaterally proclaiming new laws, rules, and policies that affect its neighbors, in this case, the Republic of China (Taiwan).

More specifically, lawfare or legal warfare exploits all forms of domestic and international laws. It aims to establish superiority and delegitimize the other party, usually in a sudden and outrageous declaration. 

The PRC has been doing this for decades. An example of it was when the PRC passed in February 1992 the "Law on the Territorial Sea and the Contiguous Zone," laying claim to the entire South China Sea. This was an effort to justify its seizure of the Paracel Islands from Vietnam two decades before. It would also later be used to attempt to unilaterally seize islands controlled or claimed by the Philippines and other nations.

PRC lawfare, therefore, is a fig leaf for advances in the region by an increasingly hegemonic power. With its military might growing, the fig leaf is not able to cover the PRC's naked aggression.

The February Speedboat Incident

Recently, the PRC launched another level of its lawfare against Taiwan. Over the Lunar New Year holidays on February 14, an unregistered Chinese speedboat was spotted in waters across the median line within 1.1 nautical miles (2 km) of the east coast of Kinmen. The speedboat reportedly sought to flee after refusing the Taiwan Coast Guard's request to board the vessel.

• What Was a Chinese 'Fishing Boat' Doing Near the Kinmen Islands?

In the chase that proceeded, the speedboat capsized, with two Chinese fishermen dying. (Initial reports described them as "fishers" but the boat was a speedboat and unregistered. It also sought to evade capture. Therefore, the men on board were likely involved in some sort of illegal activity, such as smuggling.) Two others were detained and questioned by local prosecutors. They were deported back to the mainland — easily visible from Kinmen — on February 20. Upon arrival in Xiamen, the surviving fishermen proceeded to blame the Taiwan Coast Guard for the deaths.

Investigations

Unfortunately, there is no video taken of the incident, like there was of a somewhat similar incident near the Senkaku Islands in September 2010. According to prosecutors, the Taiwan Coast Guard vessel did not have ship-borne recording equipment. The crew member tasked with recording was unable to access a handheld camera due to the high-speed chase that occurred. Additionally, the captain was busy with navigation, and two other crew members were preparing to board the speedboat.

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Internal audio recordings of the crew do exist, however, and were released to the public. While the official investigations are not yet finished, it appears the speedboat's captain acted irresponsibly, resulting in its capsizing and the death of two people. As a precaution, the Taiwan Coast Guard intends to equip all its vessels with video recording equipment in the future.

More Intrusive Actions

But the incident did not end there. When the PRC Foreign Ministry was asked to comment, it told reporters to ask the "competent authorities" stating that Taiwan was a "domestic matter."

What's more, two days later, the PRC's coast guard boarded a Taiwanese sightseeing boat. It claimed that the boat had entered restricted waters and was a surveillance ship. The coast guard proceeded to search, checking documents of the crew and passengers before letting it go. That experience struck deep fear in the tourists enjoying the Lunar holidays, believing that they might be brought to the mainland against their will. According to reports, the PRC's coast guard has intercepted other vessels as well.

The PRC's coast guard regularly intrudes into Taiwan's waters for what it says are drills. However, these recent incidents involving civilian vessels were rare.

Kinmen Islands

Only 5 km (3 mi) of water separates Kinmen, which has a population of more than 100,000 people, from Xiamen. Kinmen is located approximately 330 km (205 mi) from Taiwan proper but only a few kilometers from Xiamen on the mainland. The economy is dependent on tourism from mainland China and selling fish and other maritime goods to the Chinese market. Also, the mainland has supplied Kinmen with drinking water for several years. 

Due to these economic and familial connections, the islanders prefer tensions to go down. Observers in Taiwan and elsewhere point to ways to de-escalate tensions, such as through maritime policing cooperation. 

Previously there has been collaboration between the two coast guards conducting joint rescue drills near Kinmen, for example. And the Kinmen Agreement, a cross-strait consultative mechanism signed in 1990, called for using "pragmatic and humane means of settling differences and resolving conflicts."

But that was back when the PRC was still very weak and very dependent on other countries, including Taiwan. The PRC, and its policies, today are very different — much bolder and unwilling to compromise. Unfortunately, many remain unaware and unwilling to see this.

American Response

The PRC is creating a "new normal" through lawfare and shrinking Taiwan's space in the process. Recently, the PRC also unilaterally changed the flight paths. It moved them closer to Taiwan, intentionally raising the risk of conflict in the air, as well, over the Taiwan Strait.

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This is why comments by United States government officials are weak and generally unhelpful. They do not recognize this new reality of lawfare and the PRC's ramped-up pressure on neighboring countries. 

National Security Adviser Jake Sullivan said in Washington that the United States is "against any kind of action, by any party, that undermines the status quo." US Department of State spokesman Matthew Miller said that the US government continues "to urge restraint and no unilateral change to the status quo."

However, the PRC has changed the status quo and does so daily with no penalties. While these changes may be small and unnoticeable from far away Washington, DC, they are very big and clear to Taiwanese officials.

Sadly, this, too, is Japan's future, first in the waters around the Senkakus, and next in other islands making up the Ryukyu chain. In fact, it is already happening. Fishermen from Ishigaki and the Miyako Island group are afraid to go near the Senkakus.

The PRC will continue to push the limits in Japan and elsewhere. It will also do it to other countries as well. The world needs to be vigilant and push back, hard, against the PRC.

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Author: Robert D Eldridge

Robert D Eldridge, PhD, is a former political advisor to the US Marine Corps in Japan, and author and a 2024 Taiwan Ministry of Foreign Affairs Fellow at Tamkang University.

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