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

88 Pages Posted: 23 Feb 2020 Last revised: 24 Sep 2021

See all articles by Jill I. Goldenziel

Jill I. Goldenziel

National Defense University; University of Pennsylvania

Date Written: January 25, 2020

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

Suggested Citation

Goldenziel, Jill I., Law as a Battlefield: The U.S., China, and Global Escalation of Lawfare (January 25, 2020). 106 Cornell Law Review 1085, Available at SSRN: https://ssrn.com/abstract=3525442 or http://dx.doi.org/10.2139/ssrn.3525442

Jill I. Goldenziel (Contact Author)

National Defense University ( email )

300 5th Ave
Ft McNair
Washington, DC 20319
United States

University of Pennsylvania ( email )

Philadelphia, PA 19104
United States

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