Law as a Battlefield: The U.S., China, and Global Escalation of Lawfare

Abstract

Law is increasingly being used as a weapon of war. Unable or unwilling to challenge other states militarily, states use legal strategies to weaken the enemy’s legitimacy. Such “lawfare” can be used to achieve a kinetic objective, to forestall one, to degrade the enemy’s will to fight, and to shape the narrative of war. The Chinese military prioritizes lawfare as one of the “Three Warfares” that shape its military’s influence operations. Meanwhile, the U.S. has no similar lawfare doctrine or strategy, even as China is forcing it to fight back. This Article argues that the U.S. needs to develop a lawfare strategy to combat its adversaries. It will first define the concept of lawfare and discuss how its use has evolved and escalated globally in recent years. It will illustrate this phenomenon by examining three different case studies of lawfare between China and the U.S. or its allies: international arbitration over China’s claims to the Spratly Islands, China’s non-uniformed maritime militias, and litigation involving the U.S. and Huawei. After discussing the rise of lawfare globally, including lawfare efforts by Russia and the U.S., the article concludes with some recommendations for a U.S. lawfare strategy.

Keywords: United States, China, Russia, lawfare, International Law, Comparative Law, International Humanitarian Law, Law of Armed Conflict, Law of War, Constitutional Law, Law of the Sea, Comparative Law, UNCLOS, United Nations Convention on the Law of the Sea

JEL Classification: K00, K10, K19, K20, K33, K39, K49, K42