About the author: Julia Wang (J.D. Candidate, Class of 2024 ) is a Contributor to Travaux. Her interests include international trade and development, cultural heritage law, and intellectual property. Julia holds a B.A. in Economics and Art History from Rice University. Before law school, Julia served as a Peace Corps volunteer in North Macedonia and conducted policy research on issues relating to migration, education, and innovation. She speaks French, Mandarin Chinese, and conversational Macedonian.
"The Great Wall of China" by Keith Roper, available here.
Land Border Law
On October 23, China passed a Land Border Law, marking the first time that China has dedicated a law to address the governance of its land borders with 14 countries. According to its top legislature, the law was necessitated by “new problems and challenges” that China faces on its frontiers. Together with its coast guard and maritime traffic safety laws (both passed earlier this year), Beijing is continuing to use domestic law to legitimize actions it has already taken and to override established norms and international law.
Starting January 1, 2022, the law enables the state to combat any act that would undermine its “sovereignty and territorial integrity.” It stipulates that China can close its border due to security threats and allows for public order agencies, as well as the People's Liberation Army, to mobilize and guard the border. It also encourages infrastructure expansion and economic development in support of civilians living in border regions. Furthermore, the law prioritizes negotiating with neighboring countries to “properly resolve disputes and longstanding border issues.”
China’s New Problems and Challenges
Since the end of WWII, China has participated in more territorial disputes than any other country, though it has largely settled these disputes through bilateral agreements that usually compromise over the land’s sovereignty. However, scholars continue to express concern over China’s willingness to use force over territory. Although any further expansion would certainly have political and diplomatic costs, the timing of China’s new law is curious. China has ramped up infrastructure building in border areas near India, Bhutan, and Afghanistan, and the Land Border Law suggests that Beijing is employing the same lawfare approach it used in the South China Sea to legitimize its territorial expansion. So what are the “new problems and challenges” that gave rise to this law?
Extended Territorial Disputes
The law comes in the midst of China’s 17-month military standoff with India. The latest dispute over the Line of Actual Control (LAC) has resulted in conflicts and fatalities on both sides. Both India and China have engaged in an “infrastructure arms race” along the border. With the Land Border Law’s emphasis on civilian development, China is justifying its settlement building, infrastructure development, and military occupation along the LAC in an effort to reinforce its territorial claims. According to Professor Brahma Chellaney, China is using this law to give a “stamp of approval” to its assertive and expansionist actions.
Additionally, a provision on the “protection and reasonable use” of water resources seems to target India. The Brahmaputra River, an important water supply for India, has its source in Tibet, and China’s recent plans for hydropower development near the LAC have become another source of contention between the two countries. With this provision, China’s government may be considering the possibility of controlling water volume during conflicts with India under the guise of protecting the “stability of transboundary rivers and lakes.”
Since the 1962 Sino-Indian War, the two countries have entered into a series of bilateral agreements that aim to deescalate the tensions along the LAC. However, China’s unilateral passage of this new law is yet another challenge to these agreements and further impedes already-slow negotiations over the boundary.
Hostility Toward Refugees
Although China’s conflict with India is its most obvious focus, the Land Border Law has implications that extend far beyond territorial disputes. Using the provision about safeguarding its “territorial integrity,” China can continue justifying its hostility toward refugees, especially from North Korea and Myanmar. The law specifically prohibits using sound, lighting, or signs, as well as sending materials through air or water, across its borders, which is reminiscent of the 2020 South Korean law that banned activists from sending material critical of the North Korean regime across the border.
Despite being a signatory to both the 1951 Refugee Convention and the 1967 Protocol, China routinely circumvents legal obligations to protect refugees by denying them legitimate status, labelling North Korean refugees as “economic migrants” and Burmese refugees as “border residents.” The Chinese government routinely repatriates refugees back to North Korea, where they often face harsh punishments for attempting to defect. In honoring its 1986 bilateral agreement with Pyongyang that outlaws illegal border crossings, Beijing is violating international law by legalizing the forced repatriation of North Korean refugees.
The 2021 military coup has exacerbated existing tensions between Myanmar and China and caused renewed concern that Burmese refugees will cross the border into China to escape violence. The Chinese government recently sent away large numbers of Burmese migrant workers who have worked in China for years and are reluctant to return to a country ravaged by civil war. In the last two months, China has also faced multiple charges of encroachment into Myanmar territory because of the fencing and closed-circuit television cameras that it has installed along the border in efforts to prevent any spillover of the fighting.
Beijing has consistently ignored urges from the United Nations and Human Rights Watch to change its stance and continues to view any influxes of refugees as a threat to national security. The official enactment of a land border law provides more domestic justification for China’s unlawful treatment of refugees and encroachment into disputed territory under the guise of “protecting national security.”
Domestic Politics Above International Law Obligations
Traditionally, governments have appealed to international rules and norms to further their own interests in the domestic political arena. International law has been institutionalized in domestic processes in two ways: as resources for domestic actors to use in national discourse or as principles that are later incorporated into domestic laws.
By using its own laws to legitimize its violations of international norms, China is flipping the traditional domestic approach to international law. Not only does the Land Border Law enable China to continue its assertive actions over disputed territory, but it also legitimizes its human rights abuses and shirking of legal responsibilities under international conventions.