If the United States goes to war with China in the future, the Indo-Pacific Command legal office has prepared reports defining the legal basis for future American military action in places like the Taiwan Strait and South China Sea.
The command’s staff judge advocate office, known as J06, is supplying what the office calls full-spectrum legal support for “integrated deterrence, legal force readiness and counter legal warfare” to Adm. John Aquilino, the current Indo-Pac commander and his theater campaign plan to keep the peace in the region, or to fight China if needed.
In May, the office launched a “counter-lawfare” program – information operations designed to prevent China from using its notion of law to achieve military objectives.
The command defines counter-lawfare activities as the use of law to enhance the legitimacy of Indo-Pacific Command operations. The activities also expose what the U.S. considers flawed Chinese legal narratives and false legal claims by Beijing. Those claims have been part of what military leaders call “gray zone” warfare operations by China’s People’s Liberation Army.
The J06 lawyers are on the front lines of the information war with Beijing, pressing for what the command calls the rules-based international order and working for a region free from Chinese military coercion.
To that end, the command is publishing numerous “tacaids,” short for tactical decision aids — documents designed to make clear to the Chinese the U.S. military’s red lines on issues that could set off a war.
The reports “contribute to deterrence by reinforcing the legitimacy of Indo-Pacom and [allies’ and partners’] objectives and exposing and opposing illegitimate activities,” states a presentation slide prepared by the legal office. The reports also are used to inform leaders and support planning and execution of military operations and activities under Adm. Aquilino’s theater campaign plan.
A command spokesman said the theater campaign plan outlines all military operations in the region but is not a public document. Legal office officials declined to be interviewed about the counter-lawfare program, the spokesman said.
Adm. Aquilino told an international conference of military lawyers in Indonesia in August they served as “critical enablers” for commanders in enhancing the legitimacy of the command‘s activities and exposing flawed legal narratives offered by adversaries.
“All of our nations need to adhere to the laws, and I would argue we do that every day,” Adm. Aquilino said. “We operate together, we fly, steam and sail anywhere international law allows in order to defend our nations and provide the prosperity that our countries deserve and need. Those demonstrations of international law are critical.”
In addition to tactical aids, the office also lists six agreements between the command and the Japanese and Australian militaries on such topics as China’s maritime militia forces that act as surrogate military forces and high-altitude surveillance balloons.
Guam and Taiwan
A central issue for the command is Guam, a U.S. island that one legal report states is Adm. Aquilino’s most pressing defense priority and a key military logistics hub for both fuel and weapons for regional U.S. forces. The report called Guam critical to U.S. defense and power projection.
Guam faces “persistent and significant threats” from China’s missiles — the DF-26 and DF-21 ballistic missiles, DH-10 cruise missiles — and H-6 bombers, the report said.
“The People’s Liberation Army has recently simulated military strikes against Guam using H-6K Badger bombers,” the report said.
“PRC propaganda has implied Guam’s distance from the continental United States and proximity to China make it a viable target at which the PRC can strike if provoked.”
Thus Guam must be defended, the report said.
“Guam is a place where our combat power will aggregate and congregate and from which it will emanate. … From there we send a powerful strategic message to our allies and our adversaries that the United States has invested in this region,” Marine Corps Lt. Gen. Stephen Sklenka, the command’s deputy commander, says in the report.
The command’s legal report on the Taiwan Strait addresses what is likely the most serious friction point in U.S.-China ties.
The report contests a Chinese Foreign Ministry statement in June 2022 that the 100-mile-wide waterway is not international waters but Chinese internal waters and territorial sea under Beijing‘s control.
U.S. warships conduct near-monthly passages through the strait, often shadowed by Chinese warships that radio demands that the destroyers are violating Chinese sovereignty and must leave the area.
If China were to enforce the claim to owning the strait, a warship standoff could result in a naval shootout that could set off a larger conflict.
“If left unchallenged, the PRC’s rebuke of international waters and ambiguous claims of ‘sovereignty’ and ‘jurisdiction’ in the strait could serve as pretext for future actions that disrupt the status quo vis-a-vis Taiwan or otherwise limit the international community’s navigational rights/freedoms in the strait,” the command said.
The report also notes that the Chinese government avoided claiming sovereignty over the entire Taiwan Strait: “Like most PRC legal warfare, the [Ministry of Foreign Affairs] statement was carefully crafted and contains elements of truth,” the report said.
Gray zone tactics
China also rejects frequent U.S. assertions that the strait is an international waterway where warships of all countries should be free to travel.The report described the Chinese claim as a “gray-zone tactic to advance an alternative narrative that undermines the navigational rights and freedoms afforded to all nations under international law.”
Another legal issue for the command is increased Chinese military use of dangerous aerial intercepts against U.S. and allied surveillance aircraft. A separate legal reports states that airborne intercepts must be conducted safely with regard to the rights and freedoms of international airspace, something U.S. officials say China has ignored in recent years.
“Despite these obligations, reports indicate that PLA aircraft have executed exceptionally close approaches; engaged in reckless or aggressive maneuvers; and breached safety of flight protocols,” the report said.
The Pentagon in October accused China of conducting more than 180 provocative and dangerous aerial encounters.
If a Chinese pilot were to fire on one of the surveillance aircraft, military escalation would likely result.
So far, the Indo-Pacific Command has not sent jet fighter escorts to defend the surveillance aircraft, as some military analysts advocate.
Another contentious area for the U.S. and Chinese militaries is the sharply contested South China Sea, where nations around the region have clashing sovereignty claims. Both the U.S. and Chinese navies have been waging an information battle over disputed islands and shoals in the sea.
China claims more than 90% of the entire waterway as its maritime territory under a vaguely defined “Nine-Dash Line” — despite a 2016 international tribunal ruling in favor of Philippines that the Chinese demarcation is illegal.
The key flashpoint today is located near the disputed Spratly islands’ Second Thomas Shoal. The shoal is claimed by China and the Philippines and is the location of a grounded Philippines’ ship that Manila say is an active military base. Chinese maritime militia have fired water canon at resupply vessels sent by Manila and in one case a Chinese ship collided with a Philippines ship near the shoal.
The State Department has warned China that any confrontation with the Philippines over the shoal could trigger the U.S.-Philippines defense agreement.
The command’s legal office says all Chinese claims to Second Thomas Shoal are illegal. The reef is a “low tide elevation,” and therefore legally outside any claim to sovereignty, it states.
“If left unchecked, the PRC could be emboldened to take further coercive action against the Philippines and other countries in the region,” the report said, using the acronym for People’s Republic of China.
Deterrent effect
The legal effort by the command is an important contribution to deterrence, said James Kraska, chairman of the Naval War College’s Stockton Center for International Law.
“The Indo-Pacom effort to expose Chinese lawfare reinforces official U.S. statements and provides context and depth for allies and partner nations on Beijing’s assault on the regional and global legal order,” Mr. Kraska said.
But Army Lt. Col. Stephen R. Schiffman said even greater efforts are needed in the lawfare fight, noting that both China and Russia expertly integrate lawfare with their information operations
The U.S. government has substantial capacity to wage lawfare, he stated in a recent journal article, but “has no overarching lawfare strategy.” Col. Schiffman says China has thus been able to restrain adversaries and seize the political initiative by using innovative ways of interpreting law.
China has been waging lawfare for decades, as noted by the 1999 book by two PLA colonels titled “Unrestricted Warfare.” The book calls for “being adept at using international law as a weapon.”
The most visible Chinese lawfare operations have been in the South China Sea, where China has built up artificial islands and then placed missiles on them.
The objective has been for China to deny access to the sea that is used for an estimated $5 trillion annually in trade.
Col. Schiffman stated that “each passing day that [China’s] assertions are not answered makes them more customary, if not international law.”
Retired Navy Capt. Jim Fanell took issue with the law office’s assertion that one of its key pillars in countering Chinese lawfare is “publicizing behavior by adversaries that undermines the rule of law.”
“The reality is the command has refused to follow their own guidance to publicize the bad behavior of PRC, especially in the maritime domain,” said Capt. Fanell, a former intelligence director for the Pacific Fleet.
“If one reviews the Indo-Pacom J06 webpage, you will find a handful of insignificant and stale tactical aids that do not provide a consistent and transparent picture of the activities of the PLA that is daily threatening U.S. forces in the region, our allies like Japan, the Republic of the Philippines and, most importantly, Taiwan,” he said.
Capt. Fanell said public reporting by the military on questionable Chinese military activities was codified in law by Congress in 2019.
The law requires the Pentagon to immediately release information on new Chinese aggressions in the South China Sea.
“Now four years on, that law has largely been neglected,” Capt. Fanell said.