Daily Times

The spectacular rise of the Dragon continues to cause recurring trepidation in the West. From unprecedented economic growth to the widening net of geo-strategic clout, China’s rise as a global power is an outright challenge to the hegemony enjoyed by the US since WW-II.

There is now an ever-increasing void in global governance. Multilateral institutions such as the UN have failed to end conflicts. Increasingly, financial institutions such as the World Bank and IMF are unable to alleviate poverty in the developing and third world countries. The EU is on the verge of a collapse. And there has been a general erosion of the international rule of law. All this has prompted the Dragon into action by positioning itself to seize the opportunity and take over the reins of global power from the US when the moment arises.

US foreign policy response to China’s rise has been one of outright confrontation: declare a trade war against China, label its Belt and Road Initiative or BRI as neo-colonialism, and declare China as a violator of the international rule of law. China on the other hand has been promoting the global concept of a “community of common destiny” to coalesce a world torn by economic inequalities. China is fast emerging as the sole global bulwark against the sweeping giant wave of global poverty and its rise to the top is now inevitable.

China’s journey from the economic and geo-strategic periphery to the core has by no means been a straight line of compliance with the international rule of law. There have been violations of international law during this journey. However, the Chinese approach towards international law is to aggressively use the existing international legal framework to its advantage instead of re-inventing the law.

This tendency is visible in China’s law fare strategy. Law fare — the use of international and domestic laws as a weapon of war — is a global theme utilised by countries as a substitute for war. Law fare is not only confined to law but also crosses over into the financial, economic, cyber, space and information warfare domains.

The two largest proponents of law fare are the US and China. China has successfully used law fare to the hilt by weaponing it as a tool in its strategic arsenal. The Chinese term for law fare is Falu zhan and it includes psychological, media and legal warfare. The concept has been institutionalised in China as state policy. Increasing use of Falu zhan can be seen in the advocacy carried out by Chinese stakeholders to shape public opinion, use of Chinese soft power through financial assistance such as infrastructure loans to developing countries, and Chinese academic works to support interpretations of international law favourable to the Chinese position.

China’s success in law fare owes to its efforts in establishing world renowned international think tanks that generate global public policy and influence decision making. In 2017, seven Chinese think tanks made it to the 2017 Global Go to Think Tank Index Report. On the other hand, barring a stray recognition, scholarly works emanating from Pakistan based think tanks are hardly ever recognised in international scholarly journals.

Financial institutions such as the World Bank and IMF are unable to alleviate poverty in the developing and third world countries

Second, Chinese law fare efforts have benefitted tremendously from having a robust team of international lawyers qualified to defend China’s interests at international forums. In his book on Law fare, Law as a Weapon of War, Orde Kittrie recounts the institutionalisation of law fare by China through a qualified team of smart and capable international lawyers and policy makers who can be seen launching successful law fare in the entire gamut of legal, economic, financial, cyber and space arenas.

In doing so, China has established certain normative standards that contain policy lessons for countries such as Pakistan, a key strategic Chinese ally, at the apex of the Chinese South Asian balance of power. Pakistan, whose own law fare strategy is almost non-existent, can benefit from tapping the deep Chinese reservoir of law fare experience to find areas of common interest where Pakistan can carve its own national law fare strategy.

As reported in 2015, the Pakistan Army has created a new post of Director General Law fare Directorate (LFD) as a response to the legal challenges faced by the Pakistan Army. Although not much information is available in the public domain on the LFD, its establishment is a commendable step. Not only the Pakistan Army, but the Foreign Office and the Law Ministry should set up their own Law fare Divisions led by a team of trained local and international lawyers tasked to conduct quality policy research on areas of international law relevant to Pakistan, publish policy and position papers on Pakistan’s stance on international law issues and generally act as the guardians of the legality of Pakistan’s international legal framework. Some (but not all) areas where Pakistan has, in the past, miserably failed to utilise law fare as a state policy are the following.

First, Pakistan’s law fare strategy needs to tackle the complex Kashmir dispute afresh with a new set of legal tools. Pakistan’s historic position towards the Kashmir dispute: the accession of the State of Kashmir was under duress; Kashmir in an international dispute and the key UN resolutions must be implemented, should be re-advocated and re-thrust in the limelight at prominent international and regional forums through quality policy and research papers published by Pakistani and international think tanks — all with a view to further bolstering Pakistan’s position and argument. Pakistan’s law fare campaign must also include harnessingthe support of international think tanks and institutions with a humanitarian mandate to take a stock of Indian intransigence in Kashmir. Simultaneously, Pakistan should consider launching an international media campaign to highlight the human rights violations committed in IHK by India. Pakistan’s law fare, in the Kashmir context, can never succeed in the absence of an intensive media law fare campaign.

Second, Pakistan needs to evolve an effective law fare strategy to ward off an international campaign underway against Pakistan to label it a violator of international law. Pakistan finds itself on the receiving end of FATF non-compliance and recent reports after the FATF delegation’s visit to Pakistan are not encouraging. Areas where Pakistan is falling short of FATF compliance and more importantly, the measures taken by other countries to get off the FATF list, must be researched by Pakistani law fare specialists and recommendations shared with Pakistani decision makers. Any compliance with FATF or other international requirements can only happen after the problem has first been identified in totality and areas of reform set out by qualified law fare specialists.

Third, Pakistan has an abysmal record in international disputes where awards of hundreds of millions of dollars have been passed against Pakistan. It is reported that Pakistan is currently facing 36 cases of different nature at international courts. In March this year, a separate division from the Law and Justice Division was created for handling international disputes and arbitration, reported to be led by a senior bureaucrat in Grade 22toact as a liaison between federal ministries/divisions and the AG’s office. Such appointment, I am afraid, will only reinforce Pakistan’s failure. Complex international disputes must be tackled by a team of qualified international lawyers supported policy makers and researchers. There is no dearth of qualified international lawyers in Pakistan.

Pakistan needs to learn to take its battles away from the traditional battlefield to the new emerging battlegrounds: courtrooms and international organisations. Old Chinese Falu zhan wisdom can teach Pakistan a lesson or two for doing this effectively.

The author is a practicing international lawyer and a graduate of Harvard Law School. He can be reached at: veritas@post.harvard.edu

Published in Daily Times, October 31^st 2018.