LAW AS A BATTLEFIELD: THE U.S., CHINA, 

AND THE GLOBAL ESCALATION OF 

LAWFARE 

Jill I. Goldenziel† 

Law is increasingly being used as a weapon of war. Unable or unwilling to challenge other states militarily, states and 

non-state actors 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. For example, al-Qaeda’s 

use of human shields against U.S.-led coalition forces in Iraq 

and Afghanistan stopped the coalition from attacking certain 

military targets, and enabled al-Qaeda to carry the narrative 

of conflict among local populations when mass civilian casualties occurred. China is now the world’s leading practitioner of 

lawfare. 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 forces 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 instances of lawfare between China 

and the U.S. or its allies: China’s non-uniformed maritime militias, international arbitration over China’s claims to the 

Spratly Islands, 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 recommendations for a U.S. lawfare strategy. 

† Professor of International Law and International Relations, Marine Corps 

University Command and Staff College; Affiliated Scholar, Fox Leadership International, University of Pennsylvania. Thanks to Laurie Blank; Phillip Carter; 

Dean Cheng; Commander Russell Evans, USN (Ret.); Noah Feldman; Hannah 

Hummel; Captain Todd Huntley, USN (Ret.); Elsa Kania; Andrew Loewenstein; 

Kyle McGoey; Andr ́es Mu ̃noz Mosquera; Michael Pine; Nick Renzler; Captain Gurpreet Singhota; Commander Jared Samuelson; Aurel Sari; William W. Park; participants in the International Security Program seminar at the Belfer Center for 

Science and International Affairs at the Harvard Kennedy School; and students in 

my Lawfare and Information Operations Seminar at Marine Corps UniversityCommand and Staff College. Views in this Article represent those of the author 

and not of her University, the U.S. Department of Defense, or any other arm of the 

U.S. Government. 

1085 
1086 CORNELL LAW REVIEW [Vol. 106:1085 

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1087 

I. BACKGROUND: WHAT IS LAWFARE? . . . . . . . . . . . . . . . . . . 1091 

A. A Brief History of the Term “Lawfare” . . . . . . . . 1091 

1. Lawfare and China’s Three Warfares . . . . . 1092 

2. Lawfare in the West . . . . . . . . . . . . . . . . . . . . . . 1094 

B. Types of Lawfare . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1099 

II. LAWFARE BETWEEN THE U.S. AND CHINA . . . . . . . . . . . . 1102 

A. Background on the South China Sea. . . . . . . . . 1102 

B. Battlefield Exploitation Lawfare: The People’s 

Armed Force Maritime Militia . . . . . . . . . . . . . . . . 1104 

C. Instrumental Lawfare: The South China Sea 

Arbitration (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 

1. Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1108 

2. The Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . 1109 

3. Decision of the Permanent Court of 

Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1116 

4. Aftermath of the Decision: Information 

Lawfare and Effects . . . . . . . . . . . . . . . . . . . . . . 1118 

D. Instrumental Lawfare: China’s Novel 

Interpretations of UNCLOS . . . . . . . . . . . . . . . . . . 1128 

E. Proxy Lawfare: Huawei v. U.S. . . . . . . . . . . . . . . . 1130 

1. Huawei v. U.S. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1130 

2. Arrest of Huawei’s CFO . . . . . . . . . . . . . . . . . . 1136 

3. U.S. v. Huawei . . . . . . . . . . . . . . . . . . . . . . . . . . . 1137 

F. China’s Institutional Lawfare . . . . . . . . . . . . . . . . 1138 

III. GLOBAL ESCALATION OF LAWFARE . . . . . . . . . . . . . . . . . . . 1140 

A. Lawfare by Russia . . . . . . . . . . . . . . . . . . . . . . . . . . . 1140 

1. Russian Lawfare in Ukraine . . . . . . . . . . . . . . 1142 

2. Russian Instrumental and Institutional 

Lawfare in the Arctic . . . . . . . . . . . . . . . . . . . . . 1145 

a. Drawing Straight Baselines to Claim the 

Northern Sea Route . . . . . . . . . . . . . . . . . . . 1146 

b. Using Pollution and Shipping 

Regulations to Control the Northern Sea 

Route . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1148 

c. Instrumental Lawfare: Claiming the 

Lomonosov and Mendeleev Ridges . . . . . 1149 

3. Ukrainian Lawfare Against Russia? . . . . . . . 1151 

B. U.S. Institutional and Information Lawfare in 

Afghanistan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1151 

C. Lawfare Elsewhere . . . . . . . . . . . . . . . . . . . . . . . . . . 1155 

IV. ANALYSIS: WHY THE U.S. NEEDS A LAWFARE 

STRATEGY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1156 

A. Using the Legal Instrument of National 

Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1156 
2021] LAW AS A BATTLEFIELD 1087 

B. Lawfare’s Shaming Function . . . . . . . . . . . . . . . . . 1158 

V. WHAT A U.S. LAWFARE STRATEGY SHOULD LOOK 

LIKE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1161 

A. Developing a Lawfare Strategy . . . . . . . . . . . . . . . 1162 

B. Providing Lawfare Expertise . . . . . . . . . . . . . . . . . 1164 

C. Lawfare Training and Education . . . . . . . . . . . . . 1166 

1. Civilian Training and Education on 

Lawfare . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1166 

2. Military Training and Education on 

Lawfare . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1168 

D. Coordination with Allies, Partners, and 

Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1170 

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1171 

INTRODUCTION 

Law is increasingly being used as a weapon of war. As the 

“new endless war” shifts from the battlefields of Afghanistan 

and Iraq to the information realm, states are increasingly looking beyond conventional weapons for tools that can help them 

win hearts, minds, and the narrative of war. This strategy is 

especially important for states that wish to avoid a traditional 

kinetic conflict, whether because they are unable or unwilling 

to enter one. Enter law as warfare by other means.1 

Lawfare, as defined in 2001 by then-Colonel (later Major 

General and Professor) Charles Dunlap, is “a method of warfare 

where law is used as a means of realizing a military objective.”2 

Since that time, the term has primarily been used to refer to 

“battlefield exploitation lawfare,”3 also known as “complianceleverage disparity lawfare.”4 This type of lawfare involves exploitation of an adversary’s compliance with international humanitarian law. For example, al-Qaeda often employed human 

shields in facilities used for military purposes and launched 

attacks from mosques, knowing that the U.S. and its coalition 

partners were bound by the Geneva Conventions of 1949 (“Geneva Conventions”) and the 1954 Hague Convention on the 

1 Paraphrasing CARL VON CLAUSEWITZ, ON WAR 23 (E.P. Dutton & Co., Ltd. 

1940) (“War is a mere continuation of politics by other means.” (emphasis added)). 

2 CHARLES J. DUNLAP, JR., LAW AND MILITARY INTERVENTIONS: PRESERVING HUMANITARIAN VALUES IN 21ST CONFLICTS 4 (Nov. 29, 2001), https://people.duke.edu/ 

~pfeaver/dunlap.pdf [https://perma.cc/FB6P-3FHY]. 

3 This term was coined by Prof. Laurie Blank when she was a visiting 

speaker in my Lawfare and Information Operations Elective at Marine Corps 

University Command and Staff College in January 2020. 4 ORDE F. KITTRIE, LAWFARE: LAW AS A WEAPON OF WAR 11 (Oxford Univ. Press 

2016). 
1088 CORNELL LAW REVIEW [Vol. 106:1085 

Protection of Cultural Property During Armed Conflict.5 U.S. 

and allied forces therefore would be unlikely to attack these 

sites so as to avoid harming civilians, civilian objects, and cultural property. This type of lawfare has been successfully employed by a variety of non-state actors, including the Islamic 

State and Hamas.6 

However, lawfare is not only the weapon of the weak. Today, states like China and Russia are increasingly employing 

law as a tool against the U.S.7 Among the U.S.’s potential 

adversaries, China has the most developed lawfare strategy, 

having defined lawfare as a major part of its military strategy as 

early as 1999.8 Their goals are not simply to exploit U.S. compliance with international humanitarian law, but to weaken the 

U.S.’s legitimacy.9 They are doing so to forestall the need for 

kinetic conflict, and also to control the narrative of conflict. In 

military-speak, these states may be said to be engaging in legal 

preparation of the battlefield: setting the conditions for negotiations for peace—or under which they might go to war.10 

5 See, e.g., Geneva Convention for the Amelioration of the Condition of the 

Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 

U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of 

Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 

1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva 

Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 

1949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Convention on the Protection of Cultural 

Property in the Event of Armed Conflict (the “1954 Hague Convention”), May 14, 

1954, S. TREATY DOC. 106-1, 249 U.N.T.S. 216. 

6 KITTRIE, supra note 4, at 284–92; Jared Malsin, ‘They Just Took Us.’ Mosul 

Civilians on Being Used as Human Shields by ISIS, TIME (Mar. 30, 2017, 5:10 AM), 

https://time.com/4717319/mosul-iraq-offensive-civilians-human-shields/ 

[https://perma.cc/4U34-SSHN]; Terri Moon Cronk, DOD Spokesman: ISIS Deliberately Misuses Mosques, U.S. DEP’T OF DEF. (Oct. 23, 2018), https:// 

www.defense.gov/Explore/News/Article/Article/1669289/dod-spokesman-isisdeliberately-misuses-mosques/ [https://perma.cc/2HD9-35Y5]. 7 U.S. DEP’T OF DEF., SUMMARY OF THE 2018 NATIONAL DEFENSE STRATEGY OF THE 

UNITED STATES OF AMERICA: SHARPENING THE AMERICAN MILITARY’S COMPETITIVE EDGE 2 

(2018) (“China and Russia are now undermining the international order from 

within the system by exploiting its benefits while simultaneously undercutting its 

principles and ‘rules of the road.’”). 

8 KITTRIE, supra note 4, at 162–63 (“Additional conceptual context for the 

PRC’s use of legal warfare is provided by a treatise titled Unrestricted Warfare, 

which was written by two PLA colonels . . . and published by the PLA in 1999. The 

treatise suggests various tactics—including legal warfare—that developing countries, in particular China, could use to compensate for their military inferiority 

vis-`a-vis the United States.” (citation omitted)). 

9 See id. at 172–73. 

10 This phrase derives from the well-known concept of “intelligence preparation of the battlefield” used in U.S. military planning processes. See U.S. Army 

Field Manual 34-130: Intelligence Preparation of the Battlefield, Headquarters, 

Department of the Army, at 1:1 – 1:3, Glossary-7 (July 8, 1994), available at 
2021] LAW AS A BATTLEFIELD 1089 

Despite China’s sophisticated lawfare strategy, the U.S. is 

barely fighting back. The U.S. conducts routine Freedom of 

Navigation Operations (FONOPS) in the South China Sea, but 

has avoided the type of conflict with China that might escalate 

into kinetic operations, and allowed China’s island-building to 

progress undeterred.11 It has steered clear of confrontation 

with Chinese maritime militia, plain-clothes fishermen who 

function as an extension of the Chinese Coast Guard.12 In 

2013, the Philippines filed a landmark claim against China in 

the Permanent Court of Arbitration.13 The claim alleged that 

China violated the United Nations Convention on the Law of the 

Sea (UNCLOS) due to its environmental damage, dangerous 

activities, and threatening of the Philippines’ fishing rights in 

the South China Sea. The Philippines prevailed in a landmark 

decision in July 2016. While the U.S. urged China to comply 

with its ally’s sweeping win, the U.S. remained cautious in its 

statements about the decision.14 

Only within the past two years has the U.S. begun more 

offensive lawfare against China. In the 2019 National Defense 

Authorization Act, the U.S. Congress barred technology made 

by Chinese corporation Huawei from being included in U.S. 

defense equipment.15 Congress’s concern was that Huawei’s 

technology would be used for spying and surveillance by the 

Chinese government. In response, Huawei filed a lawsuit in 

U.S. courts arguing that Congress violated the U.S. Constitution by doing so.16 Meanwhile, at the U.S.’s request, Canada 

https://fas.org/irp/doddir/army/fm34-130.pdf [perma.cc/HWA2-C7SV] (defining intelligence preparation of the battlefield as “a systematic, continuous process 

of analyzing the threat and environment in a specific geographic area,” consisting 

of four steps: 1) defining the battlefield environment, 2) describing the battlefield’s 

effects, 3) evaluating the threat, and 4) determining threat Courses of Action). 

11 See CONG. RESEARCH SERV., R42784, U.S.-CHINA STRATEGIC COMPETITION IN 

THE SOUTH AND EAST CHINA SEAS: BACKGROUND AND ISSUES FOR CONGRESS, 9, 92 

(updated Feb. 6, 2020). 

12 See Niharika Mandhana, China’s Fishing Militia Swarms Philippine Island, 

Seeking Edge in Sea Dispute, WALL ST. J. (Apr. 4, 2019, 11:21 AM), https:// 

www.wsj.com/articles/chinas-fishing-militia-swarms-philippine-island-seekingedge-in-sea-dispute-11554391301 [https://perma.cc/ZG3U-2HZU]. 

13 S. China Sea Arbitration (Phil. v. China), Award, Case No. 2013-19, PCA 

Case Repository, at 6 (Perm. Ct. Arb. 2016). On U.S. support for the arbitration, 

see Arbitration Support Tracker, ASIA MAR. TRANSPARENCY INITIATIVE (June 16, 2016), 

https://amti.csis.org/arbitration-support-tracker/ [https://perma.cc/AH8DV93U]. 

14 See Arbitration Support Tracker, supra note 13 (tracking U.S. statements 

before and after the arbitration). 

15 See John S. McCain National Defense Authorization Act for Fiscal Year 

2019, Pub. L. No. 115-232, § 889, 132 Stat. 1636, 1917 (2018). 

16 Complaint at 1–2, Huawei Techs. USA, Inc. v. United States, 440 

F.Supp.3d 607 (E.D. Tex. 2020) (No. 4:19-cv-00159), 2019 WL 1076892. 
1090 CORNELL LAW REVIEW [Vol. 106:1085 

arrested Sabrina Meng, Huawei’s CFO and the daughter of its 

founder, on charges of fraud and violating U.S. sanctions 

against Iran.17 While the timing of the arrest may be coincidence, it is clear that the U.S. is using lawfare to counter Chinese warfare tactics. 

The U.S. prides itself on its advanced legal system and 

compliance with the rule of law.18 Yet, the U.S. lawfare strategy is woefully underdeveloped compared to its adversaries’— 

and even its allies. China’s lawfare tactics have been mirrored 

by Russia and other state and non-state actors across the 

globe.19 Recognizing this, the Office of the Legal Advisor at 

NATO’s Supreme Headquarters Allied Powers Europe (SHAPE), 

one of NATO’s strategic commands, has personnel working on 

lawfare.20 Israel has personnel dedicated to lawfare within its 

Ministry of Justice.21 The U.S. has no counterpart to these 

programs, in doctrine or in manpower. No agency within the 

U.S. government has an office dedicated to lawfare. Military 

lawyers are not trained in lawfare, nor are the vast majority of 

military officers and commanders.22 In a world where war is 

17 Sarah Berman, Witness Testimony in Huawei CFO’s U.S. Extradition Case 

Finishes in Canada Courtroom, REUTERS (Dec. 14, 2020, 6:33 AM), https:// 

www.reuters.com/article/us-usa-huawei-tech-canada/witness-testimony-inhuawei-cfos-u-s-extradition-case-finishes-in-canada-courtroomidUSKBN28O1BA [https://perma.cc/92N5-WFQZ]. 

18 See, e.g., Brian Egan, Keynote Address at the American Society of International Law Proceedings: International Law, Legal Diplomacy and the Counter-ISIL 

Campaign (Mar. 30–Apr. 2, 2016), in 110 AM. SOC’Y INT’L L. PROC. 300, 301 (2017). 

19 See infra Sec. IV. 

20 These personnel focus mainly on providing “legal vigilance.” NATO primarily refers to lawfare as “Legal Operations.” See Major General Barre R. Seguin, 

Deputy Chief of Staff, SHAPE, Keynote Address at the Foundation for Defense of 

Democracies’ Symposium: The Use of Legal Operations in a Context of Hybrid 

Threats and Strategic Competition, in Major General Charlie Dunlap, A 

Warfighter’s Perspective on “Lawfare” in an Era of Hybrid Threats and Strategic 

Competition, LAWFIRE (Mar. 13, 2020) https://sites.duke.edu/lawfire/2020/03/ 

13/a-warfighters-perspective-on-lawfare-in-an-era-of-hybrid-threats-and-strategic-competition/ [https://perma.cc/2L45-EPPR]; see also Rodrigo V ́azquez Ben ́ıtez, Legal Operations: The Use of Law as an Instrument of Power in the Context of 

Hybrid Threats and Strategic Competition, 41 NATO LEGAL GAZETTE 138, 139 (Oct. 

2020). 

21 See Yonah Jeremy Bob, Israeli Gov’t Lawyers Help NATO Fight Lawfare, 

Receive Awards, JERUSALEM POST (Sept. 2, 2019, 00:53 AM), https:// 

www.jpost.com/Israel-News/Israel-govt-lawyers-help-NATO-fight-lawfare-receive-awards-600346 [https://perma.cc/8LQF-PXP4] (discussing the lawfare 

work of the Israeli Ministry of Justice’s Counter-Terrorism and Foreign Litigation 

Division). Kittrie discusses how the Shurat HaDin Law Center is explicitly dedicated to lawfare and works closely with the Israeli government. See KITTRIE, supra 

note 4, at 312. 

22 To the author’s knowledge, the only course on lawfare currently taught at a 

professional military education institution in the U.S. is her own. 
2021] LAW AS A BATTLEFIELD 1091 

increasingly fought outside the conventional battlefield, 

lawfare will only become more important. To best its adversaries—and keep pace with its allies—the U.S. must develop a 

lawfare strategy. 

This Article will proceed in five parts. First, the Article will 

propose a new definition of lawfare. The Article will argue that 

previous definitions of lawfare must be expanded to reflect contemporary use of law as a weapon of war, and how law is now 

used as a tool in the information domain to bolster and undermine parties’ legitimacy. Second, I will discuss the lawfare involving the U.S. and China as a case study of the contemporary 

use of lawfare. This represents a critical case study of lawfare 

because of rising fears of kinetic conflict between the U.S. and 

China and the primacy of lawfare to Chinese legal strategy.23 

No state in the world currently has a lawfare strategy as sophisticated as China’s. The U.S. and China have also fought 

legal battles in multiple arenas: in the waters of the South 

China Sea, through a U.S. ally in international arbitration, 

through legislation, and now via proxy in U.S. Courts. Third, 

the Article will discuss the global escalation of lawfare, showing 

how Russia has emulated some of China’s tactics and how U.S. 

institutional lawfare efforts in Afghanistan suffered due to lack 

of a comprehensive strategy. This section will also briefly discuss other recent examples of lawfare. Fourth, the Article will 

explain why the U.S. needs to develop a lawfare strategy to 

counter its adversaries and collaborate with its partners and 

allies. The Article will conclude by discussing what a U.S. 

lawfare strategy might look like. 

I 

BACKGROUND: WHAT IS LAWFARE? 

A. A Brief History of the Term “Lawfare” 

In the 5th Century BC, the Chinese military strategist Sun 

Tzu famously wrote that “[S]upreme excellence consists in 

breaking the enemy’s resistance without fighting.”24 His philosophy remains influential in Chinese military doctrine today. 

In the 1999 military strategy book “Unrestricted Warfare,” two 

colonels in China’s military, the People’s Liberation Army (PLA), 

23 See NOAH FELDMAN, COOL WAR: THE UNITED STATES, CHINA, AND THE FUTURE OF 

GLOBAL COMPETITION xi–xiv, 3–15 (2013); GRAHAM ALLISON, DESTINED FOR WAR: CAN 

AMERICA AND CHINA ESCAPE THUCYDIDES’S TRAP? vii–xx (2017); STEFAN HALPER, CHINA: 

THE THREE WARFARES 30 (2013) (report produced for the Office of Net Assessment 

of the Department of Defense). 

24 SUN TZU, THE ART OF WAR 14 (2020). 
1092 CORNELL LAW REVIEW [Vol. 106:1085 

argued that modern warfare will no longer be defined by military means, or even involve the military at all.25 Society, instead, would be the battlefield. 

1. Lawfare and China’s Three Warfares 

China’s military doctrine has included “The Three Warfares” since at least 1963.26 The Three Warfares involve political warfare, or influence operations, designed to replace or 

supplement traditional military activities.27 The PLA published 

its current statement of the Three Warfares in its 2003 Political 

Work Guidelines, and again in 2010.28 In 2005, the PLA 

promulgated official guidelines on the Three Warfares incorporating the three concepts into its training and education.29 

Chinese government entities have also published several recent 

texts emphasizing that lawfare is critical to advancing Chinese 

interests in peacetime and wartime.30 

Public Opinion Warfare, also known as Media Warfare, involves shaping public opinion domestically and internationally.31 Public opinion is used as a weapon by using the media 

to propagandize and weaken the adversary’s will to fight while 

bolstering the will and unified views of one’s own population.32 

The second warfare, Psychological Warfare, seeks to “undermine an adversary’s combat power, resolve, and decision-making, while exacerbating internal disputes to cause the enemy to 

divide into factions . . . .”33 

25 LIANG QIAO & XIANGSUI WANG, UNRESTRICTED WARFARE: CHINA’S MASTER PLAN TO 

DESTROY AMERICA (1999). 

26 Peter Mattis, China’s ‘Three Warfares’ in Perspective, WAR ON THE ROCKS 

(Jan. 30, 2018), https://warontherocks.com/2018/01/chinas-three-warfaresperspective/ [https://perma.cc/L8VH-VJWN]. 

27 John Costello & Joe McReynolds, China’s Strategic Support Force: A Force 

for a New Era, 13 CHINA STRATEGIC PERSPECTIVES 28 (Oct. 2018). 

28 Elsa Kania, The PLA’s Latest Strategic Thinking on the Three Warfares, 

CHINA BRIEF (Aug. 22, 2016, 10:46 PM), https://jamestown.org/program/theplas-latest-strategic-thinking-on-the-three-warfares/ [https://perma.cc/H99CU3TV]. 

29 Id. 

30 Id. 

31 See LARRY WORTZEL, THE CHINESE PEOPLE’S LIBERATION ARMY AND INFORMATION 

WARFARE 1–2, 34 (2015), available at https://publications.armywarcollege.edu/ 

pubs/2263.pdf [perma.cc/U8UM-GVZP]. 

32 Kania, supra note 28 (citing JUNSHI KEXUEYUAN JUNSHI ZHANLUE YANJIU BU 

( ) [ACADEMY OF MILITARY SCIENCE STRATEGY RESEARCH DEPARTMENT], ZHANLUEXUE ( ) [THE SCIENCE OF MILITARY STRATEGY] (Military Science 

Press 2015)). 

33 Id. 
2021] LAW AS A BATTLEFIELD 1093 

The third warfare is Legal Warfare. The Chinese term, “falu 

zhan,” has been translated as lawfare.34 Lawfare involves 

shaping the legal context for Chinese actions using both domestic and international law. Lawfare seeks to gain “‘legal 

principle superiority’ . . . and delegitimize an adversary.”35 In 

China, lawfare “is seen as a form of combat.”36 According to 

Dean Cheng, a scholar of Chinese lawfare, Chinese “writers 

assign equal importance to preparing the legal and physical 

battlefields.”37 Strong coordination between legal and kinetic 

warfare is emphasized.38 Lawfare is a complement to traditional military operations and an instrument in its own right to 

shape the environment for Chinese military or political actions, 

seize the initiative, and serve as a force multiplier.39 While 

most commonly employed at the outbreak of kinetic hostilities, 

it can be used in peacetime and wartime alike.40 Drawing on 

the Maoist tradition, Legal Warfare assumes that law can be an 

instrument of politics and political warfare efforts.41 

Legal Warfare is informed by several principles: “protect 

national interests as the highest standard,” “respect the basic 

principles of the law,” “carry out [legal warfare] that centers 

upon military operations,” and “seize standards [and] flexibly 

use [them].”42 Accordingly, effective use of lawfare requires a 

nuanced and detailed understanding of relevant domestic and 

international law. 

China uses these Three Warfares as complementary and 

mutually reinforcing, in both peacetime and wartime, to shape 

and control narratives. They serve to influence perceptions 

favorable to China and unfavorable to its adversaries, while 

hampering its adversaries’ capacity to respond.43 China views 

the Three Warfares as a force multiplier in military or political 

conflict.44 For example, lawfare can be used together with Me34 KITTRIE, supra note 4, at 162. 

35 Kania, supra note 28, (citing JUNSHI KEXUEYUAN JUNSHI ZHANLUE YANJIU BU 

( ) [ACADEMY OF MILITARY SCIENCE STRATEGY RESEARCH DEPARTMENT], ZHANLUEXUE ( ) [THE SCIENCE OF MILITARY STRATEGY] (Military Science 

Press 2015)). 

36 Dean Cheng, Winning Without Fighting: Chinese Legal Warfare, HERITAGE 

FOUND. (May 21, 2012), https://www.heritage.org/asia/report/winning-withoutfighting-chinese-legal-warfare [https://perma.cc/4FMY-CEVV]. 

37 Id. 

38 Id. 

39 Id. 

40 Id. 41 Id. 

42 Kania, supra note 28. 

43 Id. 44 Id. 
1094 CORNELL LAW REVIEW [Vol. 106:1085 

dia Warfare to shape domestic and international perceptions to 

match China’s view that China is the rightful legal sovereign 

over most of the South China Sea. 

According to the 2013 Chinese Academy of Military Science’s edition of Science and Military Strategy, the Three Warfares should be adapted for China’s use based on the 

operational circumstance and desired outcome.45 For example, garnering international sympathy and support can be a 

“powerful pillar to support the whole operational activity.”46 If 

the operational objective is secret, “the use of propaganda to 

influence public opinion can reinforce the stratagem of ‘making 

a feint to the east and attacking in the west.’”47 Used together, 

the Three Warfares can have a “‘psychological frightening force’ 

. . . against an adversary.”48 The Three Warfares can thus be 

used to support deception as well as to shape perceptions 

within the information environment. 

Integration of the Three Warfares throughout China’s military and political strategies positions it well to compete in our 

current information environment. While the U.S. Joint Forces 

released a Joint Publication on Information Operations in 

2012,49 China has been developing its information warfare 

strategy for decades and integrating it with its other strategies 

and tactics. In the area of lawfare, the U.S. is even further 

behind. 

2. Lawfare in the West 

In the U.S., the definition of lawfare is more contested. The 

term was popularized in 2001 by U.S. Air Force Major General 

(retired) Charles Dunlap (then Colonel Dunlap). Dunlap defined lawfare as “a method of warfare where law is used as a 

means of realizing a military objective.”50 Dunlap based his 

definition primarily on the exploitation of the Geneva Conventions by violent non-state actors,51 such as the use of human 

shields. The definition thus took on a pejorative connotation 

because of its association with tactics by violent non-state ac45 Kania, supra note 28 (citing JUNSHI KEXUEYUAN JUNSHI ZHANLUE YANJIU BU 

( ) [ACADEMY OF MILITARY SCIENCE STRATEGY RESEARCH DEPARTMENT], ZHANLUEXUE ( ) [THE SCIENCE OF MILITARY STRATEGY] 131 (Military 

Science Press 2013)). 

46 Id. 47 Id. 

48 Id. 

49 JOINT CHIEFS OF STAFF, JOINT PUBLICATION 3-13, INFORMATION OPERATIONS 

(Nov. 20, 2014). 

50 DUNLAP, supra note 2, at 4. 

51 Id. at 5. 
2021] LAW AS A BATTLEFIELD 1095 

tors and enemies of the U.S. and Israel.52 The definition took 

on a further negative gloss when international NGOs began to 

try to use domestic and international courts to advance grievances against the U.S. and Israel.53 Perhaps in response to 

this, Dunlap subsequently modified his definition to include a 

more positive use of lawfare. In 2007, Dunlap defined lawfare 

as “the strategy of using—or misusing—law as a substitute for 

traditional military means to achieve an operational 

objective.”54 

In his book Lawfare: Law as a Weapon of War—the preeminent book on the topic—Professor Orde Kittrie delineates two 

types of lawfare.55 One is “compliance-leverage disparity 

lawfare,” which he defines as roughly equivalent to both Dunlap’s use of the term “lawfare” and what Professor Laurie Blank 

calls “battlefield exploitation lawfare.”56 States and non-state 

actors leverage their adversaries’ compliance with international 

law against them. By Kittrie’s writing, tactics like Hamas’s had 

been adopted by Al-Qaeda, the Islamic State, and other violent 

non-state groups against the U.S. Kittrie’s other type of 

lawfare, instrumental lawfare, is the use of law to achieve a 

military objective. Kittrie’s prime example is the U.S.’s use of 

sanctions against Iran to halt its nuclear program and force 

negotiations.57 The U.S. could have chosen traditional military 

means to achieve a similar objective, but at a much higher cost 

than sanctions. Since then, as law has been increasingly used 

to achieve traditional military objectives, as a tool to prepare 

the battlefield, or to force negotiations, academics have not 

coalesced around a single definition of lawfare. In 2010, participants in The Cleveland Experts Meeting convened and could 

not agree upon a definition.58 One thing they agreed on is that 

the term lawfare had a negative connotation at the time, largely 

52 See id. 

53 KITTRIE, supra note 4, at 239–40; Is Lawfare Worth Defining? Report of the 

Cleveland Experts Meeting September 11, 2010, 43 CASE W. RES. J. INT’L L. 11, 12 

(2010) [hereinafter Is Lawfare Worth Defining?]. 

54 Charles J. Dunlap, Jr., Lawfare Today: A Perspective, 3 YALE J. INT’L AFF. 

146, 146 (2008). 

55 See KITTRIE, supra note 4, at 11 (defining the two types of lawfare as “instrumental lawfare” and “compliance-leverage lawfare”). 

56 See id. (defining compliance-leverage lawfare as “lawfare, typically on the 

kinetic battlefield, which is designed to gain advantage from the greater influence 

that law, typically the law of armed conflict, and its process exerts over an adversary”); supra note 3. 

57 See generally KITTRIE, supra note 4, at 111–14 (discussing the U.S.’s financial lawfare campaign against Iran). 

58 See Is Lawfare Worth Defining?, supra note 53, at 13–15. 
1096 CORNELL LAW REVIEW [Vol. 106:1085 

because of its use against Israel, the U.S., and its allies.59 In 

2019, one exasperated commentator referred to the concept as 

“infinitely plastic.”60 

Further confusing the definition of lawfare, the term entered household use due to the popularity of the Lawfare blog, 

a prominent site on law and national security that launched in 

2010.61 Taking Dunlap’s definition as a starting point, the blog 

states that “[t]he name Lawfare refers both to the use of law as 

a weapon of conflict and, perhaps more importantly, to the 

depressing reality that America remains at war with itself over 

the law governing its warfare with others.”62 This definition 

framed the site’s content. It also broadened the definition of 

the term to the point that it is not analytically useful for academics and impossible to operationalize in the military or policy realm. 

In 2016, Joel Trachtman conducted a literature review to 

develop his own definition of lawfare. Trachtman defines 

lawfare as “legal activity that supports, undermines, or substitutes for other types of warfare.”63 Trachtman’s definition, too, 

is too broad to be useful. All warfare waged by the U.S. is 

supported by law—our Constitutional structure, the Uniform 

Code of Military Justice, international law, and the laws of war 

that support our military’s conduct in peacetime and wartime. 

Moreover, every law that involves other countries does not involve lawfare. Intent to use law as a substitute for traditional 

military activity, and to bolster the legitimacy of our fight and 

weaken that of our enemies’, is important for employing law as 

a weapon. To define lawfare as involving practically any use of 

law related to warfare does not provide useful guidance for 

policymakers and the military. 

Trachtman is correct, however, that lawfare need not have 

a pejorative connotation. Jack Goldsmith has also argued this 

point.64 Lawfare should not be the sole province of U.S. adver59 See id. at 24. 

60 Eric Loefflad, The World Revolutionary Origins of the Crime of Aggression: 

Sovereignty, (Anti-)Imperialism, and the Soviet Union’s Contradictory Geopolitics of 

Global Justice, 12 UNBOUND: HARV. J. LEGAL LEFT 1, 29 (2019). 

61 LAWFARE, http://www.lawfareblog.com [https://perma.cc/X84E-55N4]. 

62 About Lawfare: A Brief History of the Term and the Site, LAWFARE (Sep. 1, 

2010), http://www.lawfareblog.com/about-lawfare-brief-history-term-and-site 

[https://perma.cc/WQL2-XJMC]. 

63 Joel P. Trachtman, Integrating Lawfare and Warfare, 39 B.C. INT’L & COMP. 

L. REV. 267, 268 (2016). 

64 See Jack Goldsmith, Thoughts on “Lawfare,” LAWFARE (Sept. 8, 2010, 9:24 

PM), https://www.lawfareblog.com/thoughts-lawfare [https://perma.cc/K2PY2R4Q]. 
2021] LAW AS A BATTLEFIELD 1097 

saries. The U.S., too, can wield law as a weapon of war. A 

contemporary definition of lawfare should also consider the 

information environment in which all military activity now occurs. Law is no longer used solely to achieve a military objective. It is used to weaken adversaries by creating facts on the 

ground contrary to what they would like to see or by advancing 

a counter-narrative to what they would like the public to believe. Lawfare can be used in “legal preparation of the battlefield,” or “shaping the environment” for future military or 

diplomatic actions by a country. It can be used to set terms 

prior to conflict, such as by defining the boundaries of territory 

that a state will defend. Similarly, it can also be used to set the 

conditions under which a military might be willing to accept 

peace, or a starting point for peace negotiations. Lawfare can 

be used during armed conflict, to prevent armed conflict, or 

outside of it. And it is a vital tool for winning hearts and minds. 

For these reasons, I define lawfare as 1) the purposeful use 

of law taken toward a particular adversary with the goal of 

achieving a particular strategic, operational, or tactical objective, or 2) the purposeful use of law to bolster the legitimacy of 

one’s own strategic, operational, or tactical objectives toward a 

particular adversary, or to weaken the legitimacy of a particular adversary’s particular strategic, operational, or tactical 

objectives. This definition encompasses and broadens Dunlap’s and Kittrie’s definitions of lawfare to cover the way that 

states use lawfare today. It also presents an actionable definition on which the U.S. can base a lawfare strategy. 

How can lawfare bolster legitimacy? Max Weber defined 

political legitimacy as having certain beliefs or a faith in regard 

to a political system: “the basis of every system of authority, 

and correspondingly of every kind of willingness to obey, is a 

belief, a belief by virtue of which persons exercising authority 

are lent prestige.”65 In the context of war, lawfare would mean 

undermining the legitimacy of the adversary’s cause for going 

to war or of certain strategy, operations, or tactics used within 

the war. Law might also be used to bolster one’s own legitimacy by emphasizing the justness and legality of a side’s mission. Indeed, such an emphasis on legality is critical for U.S. 

military recruiting, for cohesion and retention by reinforcing 

that they serve a cause bigger than themselves, and for ensur65 Political Legitimacy, STAN. ENCYCLOPEDIA POL. PHIL. (Apr. 24, 2017), https:// 

plato.stanford.edu/entries/legitimacy/#DesNorConLeg [https://perma.cc/ 

CYX2-7ZFS] (citing MAX WEBER, THE THEORY OF SOCIAL AND ECONOMIC ORGANIZATION 

382 (Talcott Parsons ed., 1964)). 
1098 CORNELL LAW REVIEW [Vol. 106:1085 

ing that they maintain their honor in combat in a way that 

allows them to sleep at night when they return home. Over the 

past 20 years, emphasizing the justness and legality of U.S. 

military actions has also been important in winning hearts and 

minds in Afghanistan and Iraq.66 For example, lawfare has 

been employed proactively by U.S. and coalition forces in Afghanistan through the Rule of Law Field Force (ROLFF-A), 

which promoted the rule of law as part of the U.S. strategy in 

rebuilding and stabilizing Afghanistan.67 

Lawfare is distinct from the mere adoption of law involving 

a foreign nation, or the signing of a treaty. Nor do all jus ad 

bellum or jus in bello actions taken by a state qualify as lawfare. 

Instead, whether a state is employing lawfare will depend on 

how those laws are being used—with what purpose, against 

what adversary, and to achieve what objective. The designation of what qualifies as lawfare and what does not will never be 

black and white. Nearly any jus ad bellum or jus in bello legal 

action, for example, can be used to purposefully bolster one’s 

own legitimacy in a fight against a particular adversary. And a 

law adopted for non-lawfare purposes could eventually be used 

at the crux of a litigation that is part of a nation’s broader 

lawfare strategy. However, it is the action of using that law that 

would constitute lawfare, not the passage of the law itself. 

This new definition of lawfare is neutral, free of the negative 

connotations of the term’s history. Any side of a conflict can 

exercise lawfare. Indeed, with its widely-respected and highlydeveloped judicial system and some of the best law schools and 

lawyers in the world, the U.S. is well-poised to use lawfare to 

fight—and to win. Lawfare can be used by civilian agencies 

and the military alike. It can and should be employed by the 

military at the strategic, operational, and tactical levels. While 

typically the Department of Defense is concerned with the strategic, operational, and tactical levels of war, civilian agencies 

may easily apply the definition above. Civilian agencies align 

their work with the overall strategic objectives of national policy; whether their work fits neatly into the “operational” or 

“tactical” categories will not always be relevant for achieving a 

unified effort. 

66 See Mark Martins, Rule of Law in Iraq and Afghanistan?, Remarks at 

Dean’s Distinguished Lecture Series at Harvard Law School (Apr. 18, 2011), in 

HARV. NAT’L SECURITY J., Apr. 21, 2011, at 11–12. 

67 See id. 
2021] LAW AS A BATTLEFIELD 1099 

B. Types of Lawfare 

States have employed at least five types of lawfare in recent 

years. The first, battlefield exploitation lawfare, is similar to 

Dunlap’s initial conception of lawfare68 or Kittrie’s complianceleverage disparity lawfare.69 Battlefield exploitation lawfare is 

the exploitation of an adversary’s law-abidingness, usually, its 

compliance with international humanitarian law.70 Embedding civilians within legitimate military targets or hiding armed 

fighters in a large crowd of civilians are quintessential examples of battlefield exploitation lawfare. The second, instrumental lawfare, was defined by Orde Kittrie as the “use of legal tools 

to achieve the same or similar effects as those traditionally 

sought from conventional kinetic military action.”71 Kittrie 

uses U.S. sanctions against Iran as a prime example of instrumental lawfare.72 The U.S. could have launched a military 

strike against Iranian nuclear facilities to cause Iran to abandon its nuclear program. Instead, the U.S. launched sanctions 

to achieve the same effect. Proxy lawfare involves taking legal 

actions using adversary proxies. Lawfare between the U.S. and 

the Chinese company Huawei, discussed below, is a prime example of this type of lawfare.73 The U.S. has battled Russian 

corporations in a similar manner.74 Information lawfare is the 

use of law to control the narrative of the conflict. One party to a 

conflict can gain an advantage by portraying its actions as 

legal, or the other side’s as illegal. This type of lawfare is especially important in the battle for hearts and minds. Information lawfare is often used in conjunction with other types of 

lawfare, as in the Huawei litigation. Andr ́es Mu ̃noz Mosquera 

of the Office of the NATO Legal Adviser and Professor Sascha 

Dov Bachmann use the analogy of lawfare as the warhead of a 

missile, while information operations and strategic communi68 Dunlap, supra note 54, at 147. 

69 KITTRIE, supra note 4, at 11. 

70 See, e.g., id. at 287–88 (describing the Hamas’s willingness to use human 

shields against the United States). 

71 Id. at 11. 

72 See id. at 111–14. 

73 See John S. McCain National Defense Authorization Act for Fiscal Year 

2019, Pub. L. No. 115-232, § 889, 132 Stat. 1636, 1917; Complaint at 10, Huawei 

Techs. USA, Inc. v. United States, 440 F.Supp.3d 607 (E.D. Tex. 2020) (No. 4:19-

cv-00159), 2019 WL 1076892. 

74 CORY WELT, KRISTIN ARCHICK, REBECCA M. NELSON & DIANNE E. RENNACK, 

CONG. RESEARCH SERV., R45415, U.S. SANCTIONS ON RUSSIA 64 (2020) (table showing 

sanctioned Russian entities). 
1100 CORNELL LAW REVIEW [Vol. 106:1085 

cations power the missile’s flight.75 Lawfare itself, however, is 

what is lethal. Institutional lawfare is the purposeful creation of 

new domestic and international laws and institutions to 

achieve one’s military or strategic efforts. The U.S. has practiced this type of lawfare for years by serving as the primary 

funder of the United Nations and other international organizations. As discussed below, China is now beginning to build 

international institutions of its own to counter U.S. institutional lawfare efforts. 

These forms of lawfare are not necessarily new. For example, Israel has explicitly and implicitly encouraged settler outposts in the West Bank for years, creating facts on the ground 

to bolster its claims to land.76 The U.S. and the Soviet Union 

frequently used information lawfare during the Cold War, criticizing each other’s commitments to international human rights 

law in U.N. fora, eventually resulting in two separate core 

human rights conventions: the International Covenant on Civil 

and Political Rights backed by the U.S., and the International 

Covenant on Economic and Social Rights, backed by the 

U.S.S.R.77 However, the use of lawfare is escalating. Al-Qaeda 

and the Islamic State stole their battlefield exploitation lawfare 

tactics directly from Hamas. Russia’s use of little green men in 

Ukraine is similar to China’s use of little blue men in the South 

China Sea. And as conflict increasingly shifts to the information domain, lawfare is likely to become increasingly important. 

Lawfare can be used before, during, and after armed conflict. It can also be employed at the strategic, operational, and 

tactical levels of war. For example, lawfare can be used to set 

the terms for conflict or for negotiation. A judicial decision in a 

lawsuit can legitimize a settlement in the international community. If no other enforcement mechanism is available for the 

decision, the judgment will still frame any future negotiations 

or conflict over the subject of the suit. In this way, lawfare 

might be considered “legal preparation of the battlefield.” 

Lawfare can also be used to create facts on the ground that can 

75 Andr[ ́e]s B. Mu[ ̃n]oz Mosquera & Sascha Dov Bachmann, Lawfare in Hybrid Wars: The 21st Century Warfare, 7 J. INT’L HUMANITARIAN LEGAL STUD. 63, 73 

(2016). 

76 See Israel and the Palestinians: Can the Settlement Issue Be Resolved?, 

BBC NEWS (Nov. 18, 2019), https://www.bbc.com/news/world-middle-east38458884 [https://perma.cc/S7NJ-LNT5]. See generally GERSHOM GORENBERG, 

THE ACCIDENTAL EMPIRE: ISRAEL AND THE BIRTH OF THE SETTLEMENTS, 1967–1977 

(2007). 

77 For discussion of U.S. and Soviet lawfare in the U.N. during the Cold War, 

see, e.g., Jill I. Goldenziel, Curse of the Nation-State: Refugees, Migration, and 

Security in International Law, 48 ARIZ. ST. L.J. 579, 610–30 (2016). 
2021] LAW AS A BATTLEFIELD 1101 

influence a conflict. As discussed below, strategically placing 

civilians around military targets will affect the way an adversary can legally attack. Decisions in lawsuits can also have 

normative power that can affect the way that parties behave in 

conflict. Information lawfare can also be used to frame the 

narrative of conflict. This can help bolster the position of the 

military in winning hearts and minds, achieve public support 

for the military’s actions, and boost troops’ morale by reminding them that they serve to promote moral, just cause. 

To be clear, lawfare is not a perfect substitute for armed 

conflict. As long as territory and resources exist, states will 

compete for rights to and sovereignty over them. However, the 

use of lawfare is on the rise as a substitute for some military 

objectives, to prepare the battlefield in the event of armed conflict, and otherwise to support military efforts. Based on current trends and states’ rational desire to conserve resources 

and prevent destruction of property and loss of life, the use of 

lawfare is likely to increase in the future. 

Lawfare between the U.S. and China makes for an ideal 

case study of the phenomenon. First, speculation about the 

potential for war between the U.S. and China has occupied 

politicians and commentators in recent years. The Obama administration in its second term famously pivoted towards Asia 

even as the U.S. was waging war in Iraq and Afghanistan. Academics and other commentators have written countless books 

on the subject.78 Meanwhile, the U.S. and China have every 

incentive not to go to war. As each other’s largest trading partners, kinetic war would wreak havoc on both economies, to say 

nothing of the death and destruction it would cause. The U.S. 

and China are far more likely to continue to engage in alternate 

forms of competition for many years, such as trade wars and 

lawfare. Just as China is the U.S.’s most sophisticated military 

competitor, so too is China the U.S.’s most advanced competitor in lawfare. China also benefits from near-endless resources 

to invest in lawsuits and new legal organizations, and unlimited manpower for its battlefield exploitation lawfare tactics. 

China’s control over its domestic information environment is 

second-to-none, making information lawfare towards its own 

population much easier than for any other state. By under78 See generally, e.g., FELDMAN, supra note 23, (discussing the possibility of 

war between the U.S. and China and the nature of disputes falling below the 

threshold of armed conflict); ALLISON, supra note 23, (discussing the potential for 

war between the United States and China). On the primacy of lawfare to China’s 

legal strategy, see HALPER, supra note 23, at 53–60. 
1102 CORNELL LAW REVIEW [Vol. 106:1085 

standing lawfare tactics between the U.S. and China, one can 

understand similar lawfare tactics being employed all over the 

world. 

II 

LAWFARE BETWEEN THE U.S. AND CHINA 

A. Background on the South China Sea 

To understand lawfare between the U.S. and China, one 

must understand recent Chinese aggression in the South 

China Sea. The South China Sea is one of the most important 

strategic areas of the globe. While estimates vary, approximately one-third of the world’s commerce transits through the 

South China Sea, amounting to more than $3.37 trillion in 

trade each year.79 The Sea holds vast amounts of oil and gas 

reserves.80 It is also home to about twelve percent of the 

world’s fishing stocks, which play an important role in the 

economies of its surrounding countries, along with a major 

source of sustenance for their populations.81 

China claims sovereignty over most of the South China 

Sea. A “Nine-Dash Line” began to appear on Chinese Communist Party maps in 1947, roughly tracing the perimeter of the 

sea just inside the coastal areas of the Sea’s neighboring 

states.82 China claims the “historic rights” to all features 

within this Nine-Dash Line. Important features include the 

Paracels and the Spratlys, often referred to as “islands.” Legally, these are collections of maritime features that may include islands, rocks, reefs, and low-tide elevations (LTEs), 

among others. In a 2009 submission to the UN Commission on 

79 How Much Trade Transits the South China Sea?, CHINAPOWER (Oct. 10, 

2019), https://chinapower.csis.org/much-trade-transits-south-china-sea/ 

#easy-footnote-bottom-1-3073 [https://perma.cc/B3G8-PW4B]. 

80 South China Sea Energy Exploration and Development, ASIA MAR. TRANSPARENCY INITIATIVE, https://amti.csis.org/south-china-sea-energy-explorationand-development/ [https://perma.cc/2UQD-JZH8] (last visited June 21, 2021) 

(mapping oil and gas blocks in the South China Sea). 

81 John Reed, South China Sea: Fishing on the Front Line of Beijing’s Ambitions, FIN. TIMES (Jan. 24, 2019), https://www.ft.com/content/fead89da-1a4e11e9-9e64-d150b3105d21 [https://perma.cc/JR2Z-FRPD] (“The South China 

Sea accounted for about 12 per cent of the world’s fishing stocks, according to one 

2015 estimate.”); Gregory B. Poling, Illuminating the South China Sea’s Dark Fishing Fleets, CTR. FOR STRATEGIC & INT’L STUD. (Jan. 9, 2019), https://ocean.csis.org/ 

spotlights/illuminating-the-south-china-seas-dark-fishing-fleets/ [https:// 

perma.cc/YS9F-6J8F] (“The South China Sea accounted for 12 percent of global 

fish catch in 2015, and more than half of the fishing vessels in the world are 

estimated to operate there.”). 

82 BILL HAYTON, THE SOUTH CHINA SEA: THE STRUGGLE FOR POWER IN ASIA, 58–59 

(2014). 
2021] LAW AS A BATTLEFIELD 1103 

the Limits of the Continental Shelf, China asserted its sovereignty over all features in the South China Sea that fall within 

the Nine-Dash Line.83 This letter, together with China’s other 

aggressive activities in the South China Sea, began to concern 

its neighbors. 

UNCLOS, to which China is a party, prescribes maritime 

boundaries within the Sea that do not comport with the NineDash Line.84 Under UNCLOS, each state surrounding the 

South China Sea is entitled to a twelve nautical mile (nm) territorial sea over which it enjoys sovereignty, as well as a 200 nm 

Exclusive Economic Zone (EEZ) in which it enjoys the sole 

rights to exploitation of natural resources. Foreign states have 

freedom of navigation and overflight within EEZs. More than 

sixty geographic features in the Spratlys alone are occupied by 

surrounding countries, including Vietnam, the Philippines, 

Malaysia, and Taiwan. Large numbers of features also fall in 

the Paracel Islands, which are claimed by Vietnam.85 The 

Spratlys and the Paracels fall within the Nine-Dash Line, and 

China claims them all. 

The legal status of features in the South China Sea has 

tremendous implications for the rights of states that claim 

them. Islands, for example, generate twelve nm territorial seas 

and 200 nm EEZs, which would allow states to significantly 

expand their territory and exclusive access to the Sea’s resources.86 Islands are defined as naturally-formed areas of 

land that remain above water at high tide and are capable of 

sustaining human habitation or economic activity.87 A rock, 

83 Note Verbale CML/17/2009 from the Permanent Mission of the People’s 

Republic of China to the UN Secretary-General (May 7, 2009), available at https:/ 

/www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/ 

chn_2009re_mys_vnm_e.pdf [https://perma.cc/2C74-QA2A]. 

84 See United Nations Convention on the Law of the Sea art. 3, Dec. 10, 1982, 

1833 U.N.T.S. 397 [hereinafter UNCLOS]. 

85 Island Features of the South China Sea, ASIA MAR. TRANSPARENCY INITIATIVE, 

https://amti.csis.org/scs-features-map/ [https://perma.cc/SPW8-ZTCB] (last 

visited Feb. 26, 2020). Vietnam claims the most features in the South China Sea, 

a total of twenty-nine. Vietnam, too, has built upon features in the South China 

Sea. However, they have avoided conflict with other countries from this practice 

because they have largely built on features they have held for years. Their construction has also been much smaller-scale and less environmentally destructive 

than China’s. Vietnam’s Island Building: Double-Standard or Drop in the Bucket?, 

ASIA MAR. TRANSPARENCY INITIATIVE (May 11, 2016), https://amti.csis.org/vietnamsisland-building/ [https://perma.cc/333D-5l7H]; Ralph Jennings, How Vietnam 

Quietly Built Up 10 Islands in Asia’s Most Disputed Sea, VOICE OF AMERICA (Apr. 19, 

2019, 4:52 AM), https://www.voanews.com/east-asia-pacific/how-vietnam-quietly-built-10-islands-asias-most-disputed-sea [https://perma.cc/D8JR-HL4C]. 

86 UNCLOS, supra note 84, at arts. 3, 57. 

87 Id. at art. 121. 
1104 CORNELL LAW REVIEW [Vol. 106:1085 

defined as a feature that appears during high tide but cannot 

sustain habitation and economic life of their own, generates a 

12 nm territorial sea but no EEZ and no continental shelf.88 

Low tide elevations, or LTEs, are surrounded by and above 

water at low tide but submerged at high tide.89 They do not 

generate any maritime entitlement, with small exceptions.90 

Reefs do not generate their own zones and territorial claims, 

but are considered when measuring EEZs, continental shelves, 

and baselines.91 Some reefs qualify as LTEs. 

B. Battlefield Exploitation Lawfare: The People’s Armed 

Force Maritime Militia 

China shores up its claims to features in the South China 

Sea using the People’s Armed Force Maritime Militia (PAFMM), 

colloquially known as the Chinese Maritime Militia, or the “little blue men.”92 These men appear to be plain-clothes fishermen, but actually fall under the PLAN’s (People’s Liberation 

Army Navy) chain of command, although not exclusively.93 The 

Chinese military contracts with local and provincial commercial organizations to operate fishing boats on an ad hoc basis, 

outside of their civilian and commercial duties. However, these 

boats engage in no fishing, have no nets, and do not follow the 

collision and safety regulations required for safe operation 

under international law.94 Although the PAFMM is considered 

a “reserve force,” it is actually in routine use. 200,000 PAFMM 

fishing boats train with and support the Chinese Navy and 

Coast Guard.95 

88 Id. at art. 121(3). 

89 Id. at art. 13. 

90 Id. If an LTE is within a state’s territorial sea, the LTE pushes the baseline 

out, extending the territorial sea. Id. 

91 Id. at arts. 6, 47. 

92 CONG. RESEARCH SERV., supra note 11, at 66; Andrew S. Erickson & Conor 

Kennedy, Directing China’s “Little Blue Men”: Uncovering the Maritime Militia Command Structure, ASIA MAR. TRANSPARENCY INITIATIVE (Sept. 11, 2015) https:// 

amti.csis.org/directing-chinas-little-blue-men-uncovering-the-maritime-militiacommand-structure/ [https://perma.cc/Z57Y-KFGB]. 

93 James Kraska & Michael Monti, The Law of Naval Warfare and China’s 

Maritime Militia, 91 INT’L L. STUD. 450, 452–54 (2015). 

94 See, e.g., Convention on the International Regulations for Preventing Collisions at Sea, Oct. 20, 1972, 28 U.S.T. 3459 1050 U.N.T.S. 18, 22–37 [hereinafter 

COLREGS] (setting forth the rules that boats on international waterways must 

follow in order to avoid collisions); International Convention on the Safety of Life 

at Sea, May 31, 1929, 50 Stat. 1121 [hereinafter SOLAS] (setting forth safety 

standards for the construction and operation of ships). 

95 Kraska & Monti, supra note 93, at 452–54; 2017 REPORT TO CONGRESS OF 

THE U.S.-CHINA ECONOMIC AND SECURITY REVIEW COMMISSION 351, 115th Cong. 

(2017). Some analysts place the number of boats in China’s maritime militia 
2021] LAW AS A BATTLEFIELD 1105 

China uses the PAFMM as part of a strategy known as 

“salami-slicing.”96 It takes small steps to assert its claims in 

the South China Sea—none of which are casus belli on their 

own—that over time can accumulate to a change in the status 

quo. China calculates that by using civilian boats to engage in 

its salami-slicing activities, it will reduce the risk of escalation 

in the South China Sea.97 Fishing boats appear more innocuous than naval vessels and are far less expensive to operate. 

Moreover, the U.S. and its partners and allies would be unlikely 

to fire on what appears to be a civilian boat. 

The PAFMM is often employed as part of the Chinese tactic 

of encroachment.98 China will send large numbers of fishing 

vessels toward an island to intimidate its population and establish Chinese claims to the territory.99 For example, in April 

2019, the Center for Strategic and International Studies observed ninety-five PAFMM vessels off the coast of Pag-Asa Ishigher. See Derek Grossman & Logan Ma, A Short History of China’s Fishing 

Militia and What It May Tell Us, RAND CORP. (Apr. 6, 2020), https:// 

www.rand.org/blog/2020/04/a-short-history-of-chinas-fishing-militia-andwhat.html#ret1 [https://perma.cc/383V-92L6] (citing 700,000 ships in China’s 

“fishing militia” as of 2014). 

96 CONG. RESEARCH SERV., supra note 11, at 8. 

97 Kraska & Monti, supra note 93, at 456. 

98 Victor Andres Manhit, Keeping the Peace Post Arbitration, ASIA MAR. TRANSPARENCY INITIATIVE (July 27, 2016), https://amti.csis.org/keeping-peace-post-arbitration/ [https://perma.cc/CF42-S6SX]. 

99 See, e.g., Gregory Poling, China’s Hidden Navy, FOREIGN POLICY (June 25, 

2019, 9:47 AM), https://foreignpolicy.com/2019/06/25/chinas-secret-navyspratlys-southchinasea-chinesenavy-maritimemilitia/ [https://perma.cc/45G8-

A62E] (describing the “swarm of vessels . . . that dropped anchor between 2 and 5 

nautical miles from Philippines-held Thitu Island as soon as Manila began modest 

upgrade work on that feature”); Still Under Pressure: Manila Versus the Militia, 

ASIA MAR. TRANSPARENCY INITIATIVE (Apr. 16, 2019) https://amti.csis.org/stillunder-pressure-manila-versus-the-militia/ [https://perma.cc/EAH3-VVCB] 

(“Chinese fishing vessels—apparently part of the country’s maritime militia 

force—have been operating near two Philippine-held features in the disputed 

Spratly Islands”); Niharika Mandhana, China’s Fishing Militia Swarms Philippine 

Island, Seeking Edge in Sea Dispute, WALL ST. J. (Apr. 4, 2019, 11:21 AM) https:// 

www.wsj.com/articles/chinas-fishing-militia-swarms-philippine-island-seekingedge-in-sea-dispute-11554391301 [https://perma.cc/37ZW-VLDM] (“Chinese 

fishing vessels have swarmed the waters around a Philippine-controlled island in 

the South China Sea in recent months—sparking fears in Manila that Beijing is 

trying to assert greater control in a disputed area.”); The Long Patrol: Staredown at 

Thitu Island Enters Its Sixteenth Month, ASIA MAR. TRANSPARENCY INITIATIVE (Mar. 5, 

2020) https://amti.csis.org/the-long-patrol-staredown-at-thitu-island-entersits-sixteenth-month/ [https://perma.cc/5E7W-ZCGL] (“China has maintained an 

almost constant militia presence around Thitu Island, the largest of the Spratly 

Islands occupied by the Philippines”). 
1106 CORNELL LAW REVIEW [Vol. 106:1085 

land in the Philippines in a single day.100 Sometimes PAFMM 

boats are backed by Chinese Coast Guard vessels, who are in 

turn backed by the Chinese Navy (PLAN).101 This technique is 

called China’s “cabbage strategy,” in which it surrounds an 

island with increasingly more weaponized ships until it is 

wrapped like a cabbage.102 When an island is “wrapped,” the 

Chinese ships can prevent supplies of food and drinking water 

from reaching the islands.103 They can also prevent any islanders—or security forces defending small islands—from returning if they leave.104 

China also uses the PAFMM for peacetime force projection 

and several other traditional military functions.105 The 

PAFMM’s “rights protection missions” include presence missions in disputed waters, obstruction of other vessels, protection of fisheries, and development of reefs and artificial islands. 

The PAFMM coordinates with maritime law enforcement in 

these capacities. The PAFMM also performs military and intelligence functions including anti-air missile defense, light weapons use, and reconnaissance and surveillance.106 They also 

engage in emergency response. 

China is practicing battlefield exploitation lawfare by using 

the PAFMM. The PAFMM presents a classic dilemma under 

international humanitarian law because militia members do 

not fall neatly into the category of either combatants or civilians.107 In the event of armed conflict, sailors of small coastal 

fishing vessels would not be legal targets under international 

law unless they were directly participating in hostilities.108 

They are not part of the regular Chinese armed forces, and they 

are not volunteers. They do not meet the criteria for combat100 Center for Strategic and International Studies, China’s Maritime Militias in 

the South China Sea, YOUTUBE (July 24, 2019), https://www.youtube.com/ 

watch?v=Y2Rk1wRCfnc [https://perma.cc/79HR-2WG6]. 

101 CONG. RESEARCH SERV., supra note 11, at 65. 

102 Manhit, supra note 98; Harry Kazianis, China’s Expanding Cabbage Strategy, DIPLOMAT (Oct. 29, 2013), https://thediplomat.com/2013/10/chinas-expanding-cabbage-strategy/ [https://perma.cc/EF7Y-33EH]; Bonnie Glaser, 

China’s Maritime Actors: Coordinated and Directed from the Top, ASIA MAR. TRANSPARENCY INITIATIVE (Jan. 14, 2015), https://amti.csis.org/chinas-maritime-actorscoordinated-and-directed-from-the-top/ [https://perma.cc/ZMS4-KBET]. 

103 S. China Sea Arbitration (Phil. v. China), Case No. 2013-19, Award, ¶ 1120 

(Perm. Ct. Arb. 2016); Glaser, supra note 102. 

104 Id.; Glaser, supra note 102. 

105 Kraska & Monti, supra note 93, at 454. 

106 Id. at 456–58. 

107 Id. at 465. 

108 Protocol Additional to the Geneva Conventions of 12 August 1949, and 

Relating to the Protection of Victims of International Armed Conflicts (Protocol I) 

art. 51, June 8, 1977, 1125 U.N.T.S. 3. 
2021] LAW AS A BATTLEFIELD 1107 

ants because they are not under the command of a person 

responsible for his subordinates, they do not wear a fixed distinctive sign recognizable at a distance, they do not carry arms 

openly, and they do not conduct their operations in accordance 

with the law of war.109 Whether they are operating under 

China’s command or not depends on the day, since they are 

contracted by China on an ad hoc basis and are not exclusively 

under Chinese military command. Any analysis of whether a 

PAFMM sailor or vessel would be a legitimate military target 

would be highly fact-dependent. 

China’s use of fishing vessels to conduct some of its military’s dirty work gives it tremendous opportunities to exploit 

U.S. compliance with international law and the law of war. The 

U.S. Congress adopted the International Regulations for 

Preventing Collisions at Sea, 1972, as amended, or COLREGS, 

as the International Navigational Rules Act of 1977.110 Under 

the COLREGS, U.S. Navy ships, with a few situation-specific 

exceptions, are required to give way to vessels engaged in fishing.111 To do otherwise would not only be illegal, but could 

result in hundreds of thousands or even millions of dollars of 

equipment casualties, even if no lives were at stake, and would 

risk a diplomatic incident. If a PAFMM vessel engaged in illegal 

or threatening activity, a U.S. Navy ship would face a huge 

challenge besides any navigational danger. China would have 

the upper hand in any resulting information lawfare battle. 

China’s PAFMM is engaging in “legal preparation of the 

battlefield,” creating facts on the ground in the South China 

Sea to bolster its claims to territory. The little blue men stand 

ready as a force multiplier for the PLAN in any future conflict 

with China.112 In April 2019, then-Chief of Naval Operations, 

Admiral John Richardson, told Chinese Vice-Admiral Shen 

Jinlong that the U.S. will not treat the PAFMM differently than 

the Chinese Navy since they are being used to advance China’s 

military ambitions.113 Following this warning will be easier in 

theory than in practice. The U.S. may not legally be able to 

109 Id. at arts. 43, 44. 

110 International Navigational Rules Act of 1977, 33 U.S.C. §§ 1601–1608; 

COLREGS, supra note 94. 111 COLREGS, supra note 94, r. 18. U.S. Navy ships, with few exceptions, are 

defined as “power-driven vessels” and thus required to give way to fishing boats. 

In such a situation they are known as “give way vessels.” 

112 Kraska & Monti, supra note 93, at 465. 

113 Ankit Panda, The US Navy’s Shifting View of China’s Coast Guard and 

‘Maritime Militia’, DIPLOMAT (Apr. 30, 2019), https://thediplomat.com/2019/04/ 

the-us-navys-shifting-view-of-chinas-coast-guard-and-maritime-militia/ [https:/ 

/perma.cc/ND9U-BBP7]. 
1108 CORNELL LAW REVIEW [Vol. 106:1085 

target PAFMM vessels as they would the PLAN, and the stakes 

could be higher if the U.S. Navy should choose to engage with 

these vessels outside of armed conflict. 

China’s use of the PAFMM takes the battlefield exploitation 

lawfare previously used by violent non-state actors to a new 

level. China is using the little blue men, in the guise of innocent fishermen, to incrementally change the status quo in the 

South China Sea. 

C. Instrumental Lawfare: The South China Sea Arbitration 

(2016) 

1. Facts 

China has threatened the Philippines through its aggressive actions in the South China Sea. Much of this aggression 

has occurred in the Spratlys, a group of features within the 

Nine-Dash Line that also falls within the Philippines’ EEZ. 

These features and their surrounding waters are rich in natural resources and fishing stocks. In 2012, China blocked access to the Scarborough Shoal, a traditional fishing ground for 

Filipino fishermen.114 In doing so, China endangered the lives 

of Filipino personnel by maneuvering aggressively in contravention of the COLREGS and the Convention on Safety of Life 

at Sea (SOLAS).115 

China had also begun construction on Mischief Reef, Subi 

Reef, and Fiery Cross Reef, three features in the Spratlys within 

the Philippines’ EEZ. China had occupied Mischief Reef in the 

mid-1990s but did not begin construction on it until 2013.116 

Within a matter of months or years, China transformed these 

features from underwater reefs to above-sea artificial islands, 

causing severe environmental damage in the process. China 

built runways, hangars, control towers, and radomes upon 

them.117 China’s facilities on these islands were capable of 

supporting advanced fighters, patrol, electronic-warfare, and 

114 China Sea Arbitration (Phil. v. China), Case No. 2013-19, Award, ¶ 765 

(Perm. Ct. Arb. 2016). 

115 Id. ¶ 766; see also COLREGS, supra note 94 (requiring power-driven and 

sailing vessels to keep out of the way of fishing vessels); SOLAS, supra note 94, at 

arts. 33–48 (issuing provisions regarding safety of navigation). 

116 S. China Sea Arbitration, Award, ¶ 993. 

117 S. China Sea Arbitration (Phil. v. China), Case No. 2013-19, Supplemental 

Documents of the Philippines Vol. IV at Annex 782 (Perm. Ct. Arb. 2016) (citing 

Mischief Reef, ASIA MAR. TRANSPARENCY INITIATIVE, https://amti.csis.org/mischiefreef/ [https://perma.cc/24N6-WJ9D]). 
2021] LAW AS A BATTLEFIELD 1109 

advanced early-warning aircraft.118 Using these airfields 

would expand China’s Anti-Access/Area Denial capabilities, 

which are interrelated missile, sensor, guidance, and other 

technologies designed to bar potential adversaries from China’s 

backyard or its mainland. The sensors would also enable 

transmission of targeting data to missile launchers at sea and 

on the mainland.119 

China insisted that it was not militarizing the islands, and 

that it had a right to build them because they fell within the 

Nine-Dash Line.120 However, China was obviously preparing 

these islands for potential military use. China was clearly creating facts on the ground to cement its claims to these features 

and building islands in order to create legal claims to EEZs in 

the surrounding waters. 

2. The Arbitration 

The Philippines would not have been able to contest China 

militarily without the U.S. support. U.S. Secretary of State 

Michael Pompeo said in 2019 that any armed attack on Philippine forces, aircraft, or public vessels in the South China Sea 

will trigger its Mutual Defense Treaty with the Philippines.121 

Yet in 2013, the U.S. seemed to have little desire to go to war 

118 Robert Farley, The 1 Downside to Building Fake Islands China Didn’t See 

Coming, NAT’L INTEREST (Jan. 17, 2020), https://nationalinterest.org/blog/buzz/ 

1-downside-building-fake-islands-china-didnt-see-coming-114426 [https:// 

perma.cc/YX6X-C4ET]. 

119 Id. 

120 S. China Sea Arbitration, Award, ¶¶ 1020-23. 

121 Remarks With Philippine Foreign Secretary Teodoro Locsin, Jr. at a Press 

Availability, U.S. DEP’T OF STATE (Mar. 1, 2019) https://2017-2021.state.gov/remarks-with-philippine-foreign-secretary-teodoro-locsin-jr/index.html [https:// 

perma.cc/PVB2-KRHU]; see also Regine Cabato & Shibani Mahtani, Pompeo 

Promises Intervention if Philippines Is Attacked in South China Sea Amid Rising 

Chinese Militarization, WASH. POST (Feb. 28, 2019, 11:57 PM), https:// 

www.washingtonpost.com/world/pompeo-promises-intervention-if-philippinesis-attacked-in-south-china-sea-amid-rising-chinese-militarization/2019/02/28/ 

5288768a-3b53-11e9-b10b-f05a22e75865_story/ [https://perma.cc/WA3K7LKF] (“Secretary of State Mike Pompeo said Friday that any attack on Philippine 

aircraft or ships in the South China Sea would trigger a response from the United 

States under a mutual defense treaty between the two countries . . . .”); Claire Jiao 

& Nick Wadhams, We Have Your Back in South China Sea, U.S. Assures Philippines, BLOOMBERG, (Mar. 1, 2019, 5:38 AM), https://www.bloomberg.com/news/ 

articles/2019-03-01/pompeo-says-u-s-is-committed-to-keeping-south-chinasea-open [https://perma.cc/S7BT-5L6B] (“U.S. Secretary of State Michael 

Pompeo assured the Philippines that a defense treaty would apply if its vessels or 

planes are attacked in the South China Sea . . . .”). 
1110 CORNELL LAW REVIEW [Vol. 106:1085 

with China over a pile of rocks.122 Unable to confront China 

militarily on its own over these violations of its sovereignty, the 

Philippines turned to instrumental lawfare to achieve a military 

objective. The U.S. gave tacit diplomatic support to those efforts.123 China viewed the Philippines as a “Trojan Horse” for 

the U.S. during the arbitration proceedings.124 

The Philippines initiated an arbitration under Annex VII of 

UNCLOS in the Permanent Court of Arbitration (PCA) in the 

Hague.125 It alleged violations of the UN Convention on the 

Law of the Sea (UNCLOS) to which China is a party.126 167 

nations and the European Union are parties to UNCLOS, which 

was signed in 1982 and came into effect in 1994.127 As a party 

to UNCLOS, China’s participation in the arbitration was compulsory.128 The Philippines alleged violations of their EEZ due 

to China’s island-building activities and blocking access to its 

fishermen in the Scarborough Shoal, China’s endangerment of 

the lives of Filipino fishermen and personnel because of their 

failure to comply with the COLREGS, and severe environmental 

damage.129 

Within a month of the Philippines filing its claim, China 

refused to participate in the arbitration.130 This marked the 

first time a signatory to UNCLOS refused to participate in an 

arbitration arising from the treaty’s compulsory jurisdiction 

proceedings.131 In a letter delivered by the Chinese embassy to 

the registry of the PCA, China stated that “a true solution can 

only be sought through bilateral negotiation and consultation,” 

and noted that “China does not accept and is not participating 

in this arbitration.”132 China vociferously protested the legitimacy of the arbitration process, claiming that the arbitration 

122 Demetri Sevastopulo & Roel Landingin, Philippines Seeks US Support in 

Confrontation with China, FIN. TIMES (Apr. 27, 2014), https://www.ft.com/content/8b4cb8b2-c9bd-11e3-99cc-00144feabdc0 [https://perma.cc/B4K9-PBGH]. 

123 See Arbitration Support Tracker, supra note 13. 

124 Sevastopulo & Landingin, supra note 122; DAVID GROTEN, HOW SENTIMENT 

MATTERS IN INTERNATIONAL RELATIONS: CHINA AND THE SOUTH CHINA SEA DISPUTE 203 

(2019). 

125 S. China Sea Arbitration, Award ¶ 4. 

126 Id. 

127 See Chronological Lists of Ratifications of, Accessions and Successions to 

the Convention and the Related Agreements, UNITED NATIONS: OCEANS & LAW OF 

THE SEA https://www.un.org/depts/los/reference_files/chronological_lists_of_ 

ratifications.htm [https://perma.cc/8B7E-SCEB] (last updated Mar. 7, 2021). 

128 UNCLOS, supra note 84, arts. 188–190. 

129 S. China Sea Arbitration, Award ¶¶ 9, 22, 112. 

130 Bernard H. Oxman, Nonparticipation and Perceptions of Legitimacy, 37 

BERKELEY J. INT’L L. 235, 239 (2019). 

131 See id. 

132 S. China Sea Arbitration, Award ¶¶ 97, 114. 
2021] LAW AS A BATTLEFIELD 1111 

itself violated UNCLOS.133 In China’s view, UNCLOS required 

the parties to attempt to negotiate before filing an arbitration. 

The Philippines countered that it had attempted to negotiate.134 Interestingly, China chose not to participate in the jurisdictional phase of the arbitration and make its arguments 

before the Tribunal, when it could have dropped out of the case 

later in the proceedings.135 China likely was concerned that it 

would lose both at the jurisdictional phase and on the merits, 

and thought its best strategy was to attempt to debunk the 

legitimacy of the entire process rather than to participate at all. 

China may also have wished to signal that it would not comply 

with the decision in order to discourage the lawsuit from proceeding or to discourage other states from filing similar 

claims.136 

China then launched a major media campaign to denounce 

the legitimacy of the arbitration. On December 7, 2014, 

China’s Ministry of Foreign Affairs released a position paper 

denouncing the arbitration.137 Xu Hong, the Director-General 

of China’s Foreign Ministry’s Department of Treaty and Law, 

stated that China decided to release the position paper due to 

misperceptions of its position and allegations that China does 

not follow international law.138 Xu claimed that the white paper “debunks the Philippines’ groundless assertions and 

projects China’s image as a defender and promoter of the international rule of law.”139 In the paper, China argued that the 

PCA did not have jurisdiction over the Philippines’ claims. 

More broadly, since the PCA would “have to determine, directly 

or indirectly, the sovereignty over both the maritime features in 

question and other maritime features in the South China Sea,” 

133 Id. ¶ 102. 

134 Id. ¶ 97. 

135 Id. ¶ 116. 

136 Oxman, supra note 130, at 246. 

137 Position Paper of the Government of the People’s Republic of China on the 

Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of 

the Philippines, MINISTRY OF FOREIGN AFF. OF THE PEOPLE’S REPUBLIC OF CHINA 

¶ 2 (Dec. 7, 2014), https://www.fmprc.gov.cn/nanhai/eng/snhwtlcwj_1/ 

t1368895.htm [https://perma.cc/CJC3-6U6V] [hereinafter China’s Position Paper]; see also Shannon Tiezzi, Why China Won’t Accept International Arbitration in 

the South China Sea, DIPLOMAT (Dec. 9, 2014), https://thediplomat.com/2014/ 

12/why-china-wont-accept-international-arbitration-in-the-south-china-sea/ 

[https://perma.cc/9U9J-TWBB] (discussing China’s positions for rejecting Philippine’s request for arbitration). 

138 Tiezzi, supra note 137. 

139 Id. ¶ 29. 
1112 CORNELL LAW REVIEW [Vol. 106:1085 

the decision would thus be invalid under Section 298 of UNCLOS itself.140 

The position paper went further, responding to the merits 

of the Philippines’ arguments. China argued that a decision on 

the extent of China’s maritime claims in the South China Sea 

could be reached only after issues of sovereignty were resolved.141 Before resorting to UNCLOS, China and its neighbors needed to negotiate over their respective claims. China 

also noted that the Philippines’ case effectively dealt with maritime delimitation, but China had declared in 2006 that it does 

not accept the compulsory settlement procedures of UNCLOS, 

including maritime delimitation.142 Thus China claimed it 

would not be bound to accept the Tribunal’s decision.143 China 

further argued that the Philippines violated an existing agreement to settle the dispute through direct negotiations with 

China. China cited unspecified bilateral agreements, as well as 

the Declaration on the Conduct of Parties in the South China 

Sea, which it signed in 2002 along with ASEAN member 

states.144 China asserted its sovereignty over the South China 

Sea Islands and its “resolve and determination to safeguard its 

sovereignty and maritime rights,” and reaffirmed its commitment to resolving disputes through direct negotiation and 

working with its neighbors to achieve peace and stability in the 

contested waters.145 

The position paper looked suspiciously like a legal brief. It 

took the form of a brief and laid out China’s legal objections to 

both the tribunal’s jurisdiction and the merits of the case. 

China seemed to be afraid of the arbitration and its potential 

consequences in the international community and for its domestic and international legitimacy. 

China was correct that the PCA would not have jurisdiction 

to determine sovereignty over features in the South China Sea. 

UNCLOS covers only the rights and responsibilities of nations 

regarding the use of oceans, including business, the environment, and natural resources. It does not cover sovereignty. 

However, the Court’s decision would have implications for sov140 China’s Position Paper, supra note 137, ¶¶ 29, 74. 141 Id. ¶ 59. 

142 Id. ¶¶ 64, 72. 

143 See id. ¶ 75. 144 Id. ¶ 35; see Declaration on the Conduct of Parties in the South China Sea, 

ASS’N OF SOUTHEAST ASIAN NATIONS (Oct. 17, 2012), https://asean.org/ 

?static_post=declaration-on-the-conduct-of-parties-in-the-south-china-sea-2 

[perma.cc/UH2G-FPWX]. 

145 China’s Position Paper, supra note 137, ¶ 93. 
2021] LAW AS A BATTLEFIELD 1113 

ereignty claims. To determine whether China violated UNCLOS, the Court would need to determine the status of the 

various features in the Spratlys, such as whether they were 

islands, rocks, reefs, or low-tide elevations.146 

The status of these features would determine what claims 

they would generate to sovereign territory or natural resources.147 UNCLOS defines an island as “a naturally formed 

area of land, surrounded by water, which is above water at high 

tide.”148 Islands generate 12 nm territorial seas and 200 nm 

EEZs, which come with the sole rights to explore and exploit 

natural and biological resources within the EEZ. Other nations 

would still have Freedom of Navigation and Overflight within 

the EEZ. Rocks, like islands, are “naturally formed area[s] of 

land, surrounded by water, which [are] above water at high 

tide.”149 However, “[r]ocks which cannot sustain human 

habitation or economic life of their own shall have no exclusive 

economic zone or continental shelf.”150 Rocks do generate a 

twelve nm territorial sea. Low-Tide Elevations, or LTEs, disappear at high tide. Under UNCLOS, 

[w]here a low-tide elevation is situated wholly or partly at a 

distance not exceeding the breadth of the territorial sea from 

the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth 

of the territorial sea . . . [but w]here a low-tide elevation is 

wholly situated at a distance exceeding the breadth of the 

territorial sea from the mainland or an island, it has no territorial sea of its own.151 

Accordingly, an LTE is not part of a state’s territory and cannot 

be appropriated. 

Thus, a legally binding determination of the status of these 

features would have significant implications for a state’s claims 

over them in the future. The territorial and economic claims 

146 See S. China Sea Arbitration (Phil. v. China), Case No. 2013-19, Award 

¶ 392 (Perm. Ct. Arb. 2016). 

147 On the challenges of distinguishing rocks from islands under UNCLOS, see 

Marius Gjetnes, The Spratlys: Are They Rocks or Islands?, 32 OCEAN DEV. & INT’L L. 

191, 193–99 (2001); S. China Sea Arbitration, Award ¶¶ 479–82; Roberto Lavalle, 

Not Quite a Sure Thing: The Maritime Areas of Rocks and Low-Tide Elevations 

Under the UN Law of the Sea Convention, 19 INT’L J. MARINE & COASTAL L. 43, 43–49 

(2004) (examining how the South China Sea Tribunal used GEOINT products to 

make the factual determination that none of the disputed features in the South 

China Sea Arbitration met the criteria for fully fledged islands under UNCLOS art. 

121(3)). 

148 UNCLOS, supra note 84, at art. 121(1). 

149 Id. 

150 Id. at art. 121(3). 

151 Id. at art. 13. 
1114 CORNELL LAW REVIEW [Vol. 106:1085 

generated by each of these features would determine the rights 

of states that own the features. For this reason, Taiwan made 

the unusual move of siding with China in the arbitration. Taiwan currently occupies a feature known to the Philippines as 

Itu Aba and to Taiwan as Taiping Island. Late in the Arbitration, Taiwan released a position paper on the status of Itu Aba, 

and the Taiwan Society of International Law submitted an amicus curiae brief to the PCA claiming that Itu Aba is an 

island.152 

Despite China’s nonparticipation, the Tribunal bent over 

backwards to include China’s perspective. The Tribunal reviewed China’s position paper and statements by Chinese officials in lieu of the state’s formal arguments.153 The Tribunal 

could have taken the Philippines’ arguments as fact, but it took 

the unusual step of appointing independent experts to assess 

the parties’ claims and measurements of contested geographic 

features.154 Ordinarily, both parties to an arbitration would 

advance funds to compensate such independent experts. 

Since China did not participate, the Philippines bore these 

costs alone.155 After China protested, one of the original judges 

even recused himself to avoid any semblance of impartiality 

because he had a Filipino wife.156 

On October 29, 2015, the Tribunal released a decision on 

jurisdiction, despite the fact that China did not formally contest jurisdiction in the proceedings due to its nonparticipation.157 Procedurally, the Tribunal would not ordinarily have 

had to release a decision on jurisdiction but likely chose to do 

152 Position Paper on ROC South China Sea Policy, Republic of China (Taiwan), 27–30 (Mar. 21, 2016); Amicus Curiae Submission by the Chinese (Taiwan) 

Society of International Law, S. China Sea Arbitration (Phil. v. China), Case No. 

2013-19, Award ¶¶ 20–22 (Perm. Ct. Arb. 2016). 

153 S. China Sea Arbitration (Phil. v. China), Case No. 2013-19, Award ¶¶ 14, 

153 (Perm. Ct. Arb. 2016); Jill Goldenziel, China Can’t Ignore the Hague’s Decision—But It Can Avoid It, HUFFPOST (July 13, 2016, 3:44 PM), https:// 

www.huffpost.com/entry/china-cant-ignore-the-hagues-decisionbut-itcan_b_57869173e4b0cbf01e9f0b74 [https://perma.cc/Z5HT-UTBX]. 

154 S. China Sea Arbitration, Award ¶¶ 15, 84. 

155 Goldenziel, supra note 153. 

156 Anjo Alimario, JC Gotinga & Paolo Taruc, PH vs. China: Who Are the 

Judges of the Arbitral Tribunal?, CNN PHIL. (July 12, 2016, 3:39 AM), https:// 

cnnphilippines.com/world/2016/07/11/ph-china-the-hague-arbitral-tribunaljudges.html [https://perma.cc/AAC9-KA8L]. 

157 See generally S. China Sea Arbitration (Phil. v. China), PCA Case No. 2013-

19, Award on Jurisdiction and Admissibility, ¶¶ 10–15 (Perm. Ct. Arb. 2015) 

(explaining that China’s refusal to participate in the proceedings does not bar the 

Tribunal from proceeding with the arbitration and interpreting China’s statements and position papers to object to the basis of jurisdiction). 
2021] LAW AS A BATTLEFIELD 1115 

so in response to China’s informal objections.158 The Tribunal 

also showed that it was taking China’s arguments seriously by 

effectively treating the white paper as a legal brief in evaluating 

the parties’ arguments.159 The Tribunal likely wished to bolster the international legitimacy of the decision by taking these 

extraordinary steps. 

In the months before the decision on the merits was announced, China stepped up its propaganda efforts.160 Neardaily condemnations of the arbitration appeared in the Chinese 

and English-language press, written by the government and 

affiliated groups like the Chinese Fisheries Association.161 

Chinese academics and lawyers made high-level international 

appearances to criticize the arbitration, such as at the Annual 

Meeting of the American Society of International Law.162 Highlevel ministers regularly spoke out against the case and the 

legitimacy of the tribunal.163 China attempted to rally other 

countries to support its position.164 Just weeks before the decision was announced, China attempted to debunk the legitimacy of the arbitration because the President of the 

International Tribunal on the Law of the Sea (ITLOS), a Japanese judge who did not sit on the South China Sea arbitration 

tribunal himself, had appointed two judges to the tribunal after 

China forfeited its right to do so by not participating in the 

arbitration.165 In China’s view, China’s disputes with Japan 

158 See PCA Arbitration Rules, art. 23 (2012), available at https://docs.pcacpa.org/2015/11/PCA-Arbitration-Rules-2012.pdf [https://perma.cc/5WUTTVEZ] (explaining that the arbitral tribunal shall have the power to rule on its own 

jurisdiction in the event of an objection to jurisdiction, and that the tribunal “may 

rule on a [jurisdictional objection] either as a preliminary question or in an award 

on the merits”). 

159 S. China Sea Arbitration, Award on Jurisdiction and Admissibility, 

¶¶ 10 – 15; see also Goldenziel, supra note 153. 

160 Goldenziel, supra note 153. 

161 Id. 

162 Emerging Frontiers in the South China Sea, YOUTUBE (Apr. 5, 2016), https:/ 

/www.youtube.com/watch?v=GOH3ehGAjKc&feature=emb_title [https:// 

perma.cc/4F3R-TPFU] (depicting panel at the 110th Annual Meeting of the American Society of International Law); see AM. SOC’Y OF INT’L LAW, 110TH ASIL ANNUAL 

MEETING: CHARTERING NEW FRONTIERS IN INTERNATIONAL LAW 70 (2016) available at 

https://www.asil.org/sites/default/files/annualmeeting/pdfs/2016_Program.pdf [https://perma.cc/4B7T-W77C]; see also Goldenziel, supra note 153. 

163 Goldenziel, supra note 153. 

164 Arbitration Support Tracker, supra note 13; Michael Forsythe, Beijing Tries 

to Whip Up Support for Its South China Sea Claims, N.Y. TIMES (May 13, 2016), 

https://www.nytimes.com/2016/05/14/world/asia/south-china-sea-philippines-hague-ruling.html [https://perma.cc/U8LS-E3CP]. 

165 Bethany Allen-Ebrahimian, Beijing: Japanese Judge Means South China 

Sea Tribunal Is Biased, FOREIGN POL’Y (June 21, 2016, 2:40 PM), https:// 

foreignpolicy.com/2016/06/21/beijing-japanese-judge-means-south-china-sea-
1116 CORNELL LAW REVIEW [Vol. 106:1085 

over territory in the East China Sea meant that a Japanese 

judge could not appoint impartial arbitrators.166 China may 

have dismissed the arbitration, but it could not seem to ignore 

its existence. Instead, it appeared to be worried about the legitimacy of its own position—and about an adverse result. 

3. Decision of the Permanent Court of Arbitration 

The Tribunal released its decision on July 12, 2016. By 6 

AM Eastern Standard Time, the arbitration was trending on 

both Twitter and Weibo, China’s largest social media network.167 The decision was almost a sweeping win for the Philippines, more so than most observers had expected. The Court 

held that China’s maritime entitlements in the South China 

Sea cannot exceed those established by UNCLOS.168 In doing 

so, the Court effectively invalidated the Nine-Dash line.169 Surprisingly to many observers, the Court also found that no features in the Spratlys qualify as islands under UNCLOS.170 The 

Court determined that Scarborough Shoal, Fiery Cross Reef, 

and Itu Aba were rocks, and thus generated no EEZs.171 Importantly, Scarborough Shoal generated a territorial sea for the 

Philippines, and thus China’s barring Filipino fishermen from 

fishing there violated the Philippines’ sovereign right to fish in 

its territorial sea.172 Mischief Reef, Subi Reef, and the Second 

Thomas Shoal were all found to be LTEs.173 The Tribunal 

found the Second Thomas Shoal and the waters around it to be 

tribunal-is-biased-china-philippines-maritime-claims/ [https://perma.cc/BES4-

5G8E]. 

166 Id. 

167 Twitter observed by author. See also Bethany Allen-Ebrahimian, After 

South China Sea Ruling, China Censors Online Calls for War, FOREIGN POL’Y 

(July 12, 2016, 5:12 PM), https://foreignpolicy.com/2016/07/12/after-southchina-sea-ruling-china-censors-online-calls-for-war-unclos-tribunal/ [https:// 

perma.cc/B6DH-KAPX] (“Within hours of the [judgment’s] announcement, ‘South 

China Sea arbitration’ was trending on Weibo, China’s heavily filtered Twitter-like 

microblogging platform, and hundreds of thousands of comments poured in.”); 

Janis Mackey Frayer, South China Sea Ruling: What’s Next for Beijing After Tribunal’s Rebuke?, NBC NEWS (July 12, 2016, 11:30 AM), https:// 

www.nbcnews.com/news/china/south-china-sea-ruling-what-s-next-beijing-after-tribunal-n607851 [https://perma.cc/H8F6-9EMM] (“In the hours ahead of 

the ruling, #SouthChinaSeaArbitration was the top trending topic on Weibo with 

well over 100 million views.”). 

168 S. China Sea Arbitration (Phil. v. China), Case No. 2013-19, Award 

¶¶ 277 – 78 (Perm. Ct. Arb. 2016). 

169 Id. 

170 Id. ¶¶ 643, 646. 171 Id. 

172 Id. ¶¶ 643, 646, 716. 

173 Id. ¶¶ 643, 646. 
2021] LAW AS A BATTLEFIELD 1117 

part of the EEZ and the continental shelf of the Philippines.174 

China’s island-building activities on Mischief Reef, Subi Reef, 

and Fiery Cross Reef were thus illegal, since none of those 

features can sustain human habitation in their natural 

state.175 The occupation of Mischief Reef was also illegal because it is part of the Philippines’ continental shelf.176 Although China had not made its claims explicit, most observers 

believed that China had claimed EEZs and continental shelves 

emanating from Scarborough Shoal and at least most of the 

Spratlys.177 The Tribunal’s determination that none of the 

Spratlys are islands not only invalidated those claims but also 

has broader implications. The determination means that the 

only EEZs and continental shelves in the South China Sea are 

those generated by the coastlines of its surrounding states and 

possibly some of the Paracels, pending determination of the 

status of those features. Thus, the Tribunal’s findings have 

implications for the territorial claims of other states. 

The Tribunal found that China had violated UNCLOS in 

several additional ways. China engaged in unlawful interference with the Philippines’ sovereign rights in its EEZ and continental shelf by preventing it from exploiting natural resources 

there.178 China also engaged in substantial violations of environmental law through its island-building, including dredging 

and landfill work.179 China also violated the Philippines’ traditional fishing rights at Scarborough Shoal.180 While both Chinese and Filipino fishermen have the right to engage in 

174 Id. ¶¶ 646–47. 

175 Id. ¶¶ 643, 646, 1043 (finding that Mischief Reef is an LTE and therefore 

not capable of appropriation). 

176 See id. ¶ 1043 (finding that Mischief Reef is part of the Philippines’ Continental Shelf). 

177 Failing or Incomplete? Grading the South China Sea Arbitration, ASIA MAR. 

TRANSPARENCY INITIATIVE (July 11, 2019), https://amti.csis.org/failing-or-incomplete-grading-the-south-china-sea-arbitration/ [https://perma.cc/Z2JB-GZT3] 

[hereinafter Failing or Incomplete?, AMTI]. China’s white paper that it released the 

day after the arbitration, for example, states that “China has, based on the Nanhai 

Zhudao [islands of the South China Sea], internal waters, territorial sea, contiguous zone, exclusive economic zone and continental shelf.” Id.; see also Xinhua, 

China Adheres to the Position of Settling Through Negotiation the Relevant Disputes 

Between China and the Philippines in the South China Sea, STATE COUNCIL OF 

CHINA, (July 13, 2016, 11:23 AM), http://english.www.gov.cn/state_council/ 

ministries/2016/07/13/content_281475392503075.htm [https://perma.cc/ 

DD5P-4DXU] [hereinafter China’s White Paper] (appearing to assert China’s 

claims to an EEZ and continental shelf based on its proclaimed sovereignty over 

the Spratlys but open to other interpretations). 

178 S. China Sea Arbitration, Award ¶ 716. 

179 Id. ¶ 993. 

180 Id. ¶ 814. 
1118 CORNELL LAW REVIEW [Vol. 106:1085 

traditional fishing regardless of who has sovereignty over the 

shoal, China prevented Filipino fishermen from engaging in 

traditional fishing from May 2012 onward.181 China also endangered the lives of Philippines’ personnel at Scarborough 

Shoal, as well as in other areas through its failure to comply 

with the COLREGS required by UNCLOS.182 It failed to stop 

Chinese nationals from interfering with the rights of and endangering Filipino fishermen and personnel.183 China allowed 

its fishers and fishermen to illegally engage in environmental 

destruction through harvesting of endangered species.184 Finally, it unlawfully aggravated the dispute by engaging in these 

activities while the lawsuit was pending.185 

4. Aftermath of the Decision: Information Lawfare and 

Effects 

China swiftly and strongly denounced the decision using 

information lawfare to shape the narrative surrounding the 

arbitration. China immediately dismissed the decision as 

“waste paper.”186 The day after the decision was announced, 

the Chinese Ministry of Foreign Affairs Released a white paper 

denouncing the decision.187 In it, China continued to advance 

its narrative that the arbitration itself was illegal, as well as to 

assert its historic rights over the area within the Nine-Dash 

Line.188 China’s Foreign Ministry Spokesperson, Lu Kang, 

called the Tribunal’s decision “null and void” in his next regular 

press conference.189 Using strong terms, Lu said that “the 

Philippines and the Arbitral Tribunal have abused relevant pro181 Id. 

182 Id. ¶¶ 1105, 1109. UNCLOS Article 94 incorporates the COLREGS into 

UNCLOS. The Tribunal found China to have “by virtue of the conduct of Chinese 

law enforcement vessels in the vicinity of Scarborough Shoal, created serious risk 

of collision and danger to Philippine vessels and personnel. The Tribunal [found] 

China to have violated Rules 2, 6, 7, 8, 15, and 16 of the COLREGS and, as a 

consequence, to be in breach of Article 94 of the Convention.” Id. ¶ 1109. 

183 Id. ¶ 757. 

184 Id. ¶ 992. 

185 Id. ¶ 1181. 

186 Vice Foreign Minister Liu Zhenmin at the Press Conference on the White 

Paper Titled China Adheres to the Position of Settling Through Negotiation the 

Relevant Disputes Between China and the Philippines in the South China Sea, 

MINISTRY OF FOREIGN AFF. OF THE PEOPLE’S REPUBLIC OF CHINA (July 13, 2016), https:/ 

/www.fmprc.gov.cn/mfa_eng/wjdt_665385/zyjh_665391/t1381980.shtml 

[https://perma.cc/Q4XX-ZC2N]. 

187 See China’s White Paper, supra note 177. 

188 See id. 

189 Foreign Ministry Spokesperson Lu Kang’s Remarks on Japanese Foreign 

Minister’s Statement on the Award of South China Sea Arbitration Initiated by the 

Philippines, MINISTRY OF FOREIGN AFF. OF THE PEOPLE’S REPUBLIC OF CHINA 
2021] LAW AS A BATTLEFIELD 1119 

cedures, misrepresented the law and obstinately forced [sic] 

ahead with the arbitration, and as a result, have severely violated the legitimate rights that China enjoys as a State Party to 

the UNCLOS.”190 China’s ambassador to the U.S., Cui Tiankai, 

argued that the arbitration “undermine[s] the authority and 

effectiveness of international law.”191 Official media repeatedly 

characterized the arbitration as a “farce.”192 China refrained 

from formally announcing claims to EEZs and continental 

shelves emanating from features in the Spratlys at the time.193 

China launched both domestic and international media 

campaigns to denounce the decision. It placed a billboard in 

Times Square with a three-minute video that ran five times an 

hour, twenty-four hours per day, from July 23 to August 3.194 

China thus publicized its message to Americans along with 

foreign tourists.195 China simultaneously released the video on 

Youtube and on Chinese television networks.196 The video emphasizes that “China [was] the first to have named . . . explored 

and exploited” islands in the South China Sea as early as the 

2nd Century BCE.197 It asserts that China has continuously 

“exercised sovereignty and jurisdiction over” these islands and 

waters.198 China again argues that the arbitration was illegal 

and that it rejects the outcome “so as to defend the solemnity of 

international law.”199 Instead, it claims it advocates the “dualtrack approach” to resolve the disputes through friendly negotiations while China works with ASEAN to maintain peace in the 

South China Sea.200 The video features experts and politicians 

affirming China’s claims to the area. One of them, Catherine 

(July 12, 2016), https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/ 

s2510_665401/2535_665405/t1380245.shtml [https://perma.cc/TWN9-GZAG]. 190 Foreign Ministry Spokesperson Lu Kang’s Regular Press Conference on October 30, 2015, MINISTRY OF FOREIGN AFF. OF THE PEOPLE’S REPUBLIC OF CHINA 

(Oct. 30, 2015), https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/ 

s2510_665401/2511_665403/t1310709.shtml [https://perma.cc/5ANG-FG6J]. 

191 Kania, supra note 28. 

192 Id. 

193 Failing or Incomplete?, AMTI, supra note 177. 

194 South China Sea Campaign Airing in Times Square Falsely Uses British MP 

to Back China’s Claim, ABC NEWS (July 28, 2016, 4:10 PM), https:// 

www.abc.net.au/news/2016-07-28/south-china-sea-campaign-airs-on-timessquare-billboard/7670744 [https://perma.cc/V3V9-M6PK]. 

195 VideoChinaTV, A Short Video on Times Square, YOUTUBE (July 27, 2016), 

https://www.youtube.com/watch?v=XI2s-2vjr7o&t=73s [https://perma.cc/ 

M7NX-KTHT]. 

196 Id. 

197 Id. 

198 Id. 

199 Id. 

200 Id. 
1120 CORNELL LAW REVIEW [Vol. 106:1085 

West, Shadow Secretary of State of Foreign Affairs from the 

British Labour Party, quickly released a statement that her 

remarks were taken out of context from a statement in which 

she actually denied China’s claims over the area.201 

Internationally, many states issued statements on the arbitration. The U.S., the Philippines, the U.K., Canada, Japan, 

Vietnam, Australia, and New Zealand—all parties strongly 

vested in either the immediate decision or its implications for 

future interpretations of and compliance with UNCLOS— 

strongly encouraged China to comply with the decision.202 

Thirty-three other countries issued positive statements about 

the decision without explicitly calling for China to comply.203 

India, Malaysia, Myanmar, and South Korea, all of which had 

taken no position on the arbitration prior to the decision, issued positive statements that stopped short of calling for compliance.204 Another eight countries made neutral statements 

without addressing the decision, including Brunei and Indonesia, who also have claims to features in the South China 

Sea.205 Only six countries besides China issued statements 

opposing the decision: Russia, Montenegro, Sudan, Pakistan, 

Taiwan, and Vanuatu.206 Taiwan’s opposition to the decision 

was based on the Tribunal’s finding that Itu Aba is a rock 

rather than an island.207 These statements are significant because China had claimed prior to the ruling that the majority of 

the world’s states opposed the arbitration.208 

International pressure on China to comply with the decision waned in the wake of the decision, however, because the 

Philippines itself has not pushed China to comply. Rodrigo 

201 Will Worley, Labour MP Says She Was Misrepresented in China’s Times 

Square Propaganda Video, INDEPENDENT (July 31, 2016, 11:45 PM), https:// 

www.independent.co.uk/news/uk/politics/labour-mp-catherine-west-chinapropaganda-video-times-square-new-york-120-a7165206.html [https:// 

perma.cc/E9B2-NDJF]. 

202 Who Is Taking Sides After the South China Sea Ruling?, ASIA MAR. TRANSPARENCY INITIATIVE (Aug. 15, 2016), https://amti.csis.org/sides-in-south-chinasea/ [https://perma.cc/P4F3-LS3M] [hereinafter Who is Taking Sides, AMTI]. 

203 Id. 

204 Id. 

205 Id.; Territorial Disputes: The South China Sea: State Interests, U.S. NAVAL 

WAR COLLEGE: LIBGUIDES, https://usnwc.libguides.com/c.php?g=86624&p= 

557082 [https://perma.cc/CKR4-XYLQ]. 

206 Who is Taking Sides, AMTI, supra note 202. 

207 Id.; see S. China Sea Arbitration (Phil. v. China), Case No. 2013-19, Award 

¶ 632 (Perm. Ct. Arb. 2016). 

208 Wang Wen & Chen Xiaochen, Who Supports China in the South China Sea 

and Why, DIPLOMAT (July 27, 2016), https://thediplomat.com/2016/07/whosupports-china-in-the-south-china-sea-and-why/ [https://perma.cc/D8LGEBQC]. 
2021] LAW AS A BATTLEFIELD 1121 

Duterte became president of the Philippines on June 30, 2016, 

less than two weeks before the arbitral decision was released.209 Duterte quickly began to ostracize the U.S. and to 

warm to China.210 For four years, Duterte refused to push 

compliance with the decision, despite pressure from his own 

people.211 In his fourth State of the Nation Address, Duterte 

casually mentioned that he would raise the arbitral decision 

with China when the time is right.212 In July 2019, during a 

visit to the Philippines, Xi allegedly offered Duterte a large oil 

and gas deal in exchange for abandoning the terms of the 

arbitration.213 

209 Rodrigo Duterte Sworn in as Philippines President, BBC (June 30, 2016), 

https://www.bbc.com/news/world-asia-36670012 [https://perma.cc/FCP2-

MWXX]. 

210 See, e.g., Hannah Beech & Jason Gutierrez, Xi Visits Philippines to Celebrate ‘Rainbow After the Rain’ With Duterte, N.Y. TIMES (Nov. 19, 2018), https:// 

www.nytimes.com/2018/11/19/world/asia/xi-jinping-rodrigo-duterte-philippines-china.html [https://perma.cc/LTF6-MN4E] (noting Duterte’s anti-U.S. sentiments and historic visit to Beijing). 

211 Renato Cruz de Castro, Commentary: Is An Appeasement Policy Vis-a-vis 

Expansionist China Worth Pursuing?, PHILSTAR GLOB. (Jan. 4, 2020, 4:10 PM), 

https://www.philstar.com/other-sections/news-feature/2020/01/04/ 

1982027/commentary-appeasement-policy-vis-vis-expansionist-china-worthpursuing [https://perma.cc/4WPU-DU8E] (“President Rodrigo Duterte, however, 

emphasized the futility of confronting China . . . .”); Jason Gutierrez, Philippines 

Has Little Power Against China, Duterte Tells Lawmakers, N.Y. TIMES (July 22, 

2019), https://www.nytimes.com/2019/07/22/world/asia/rodrigo-dutertephilippines-congress.html [https://perma.cc/Q9Z5-T7K6] (“Mr. Duterte has not 

pressured China to accept the ruling, instead making a point of appeasing Beijing 

by visiting often and courting billions of dollars in investment pledges.”); Franco 

Luna, Philippines Is ‘the Lead in the South China Sea Disputes,’ Locsin Claims, 

PHILSTAR GLOB. (Dec. 8, 2019, 1:42 PM), https://www.philstar.com/headlines/ 

2019/12/08/1975297/philippines-the-lead-south-china-sea-disputes-locsinclaims [https://perma.cc/U6UW-M28R] (“In July 2019, Duterte said that the 

ruling could no longer be enforced.”). 

212 Duterte’s SONA 2019, PHILSTAR GLOB. (July 24, 2019, 3:32 PM), https:// 

www.philstar.com/happens/713 [https://perma.cc/J4CF-B7WR] (“Short of advocating a call to arms there are those who say we should stop those who fish in 

our economic zone. Of course we will, in due time.”); Eimor Santos & Chad de 

Guzman, Duterte Vows to Stop Chinese Fishing in West PH Sea ‘in Due Time,’ CNN 

PHIL. (July 22, 2019, 6:54 PM), https://www.cnnphilippines.com/news/2019/7/ 

22/duterte-sona-china-west-philippine-sea.html [https://perma.cc/89M3-

JGWQ]. 

213 Martin Petty & Karen Lema, Philippines’ Duterte to Meet China’s Xi Over 

South China Sea Arbitration Win, REUTERS (Aug. 6, 2019, 4:24 AM), https:// 

www.reuters.com/article/us-philippines-china/philippines-duterte-to-meet-chinas-xi-over-south-china-sea-arbitration-win-idUSKCN1UW0SJ [https:// 

perma.cc/Q4K2-9X63]; Helen Regan, Duterte Says Xi Jinping Offered Him an Oil 

and Gas Deal to Ignore South China Sea Ruling, CNN (Sept. 12, 2019, 9:12 PM), 

https://www.cnn.com/2019/09/12/asia/duterte-xi-south-china-sea-deal-intlhnk/index.html [https://perma.cc/3KAT-JM9X]. 
1122 CORNELL LAW REVIEW [Vol. 106:1085 

Even as oil and gas cooperation appears to be increasing, 

however, Duterte has toughened his stance against China and 

in support of the rulings. On July 12 2020, the Philippines’ 

Foreign Affairs Secretary Teodoro Locsin issued a statement 

formally recognizing the arbitration.214 The following day, U.S. 

Secretary of State Michael Pompeo issued a statement declaring that “Beijing’s claims to offshore resources across most of 

the South China Sea are completely unlawful, as is its campaign of bullying to control them.”215 He stated the U.S.’s position that the South China Sea Tribunal’s ruling is “legally 

binding.”216 The following day, the Chinese Foreign Minister, 

Wang Yi, called Secretary Locsin to assure him that China 

would continue to work with the Philippines and other parties 

to resolve maritime issues through dialogue and consultation.217 In September 2020, Duterte made a speech before the 

UN General Assembly toughening his stance in support of the 

Award.218 In December 2020, Secretary Locsin and Secretary 

Pompeo spoke about cooperation between their nations regarding the terms of the Award.219 As this Article goes to press, it 

remains to be seen how the Biden administration will support 

compliance with the arbitral decision. 

China’s compliance with the arbitration has been mixed. 

China has not reneged on its claim to sovereignty over territory 

within the Nine-Dash Line.220 Accordingly, it has not abandoned its artificial islands in the South China Sea.221 Nor has 

China conceded that the Second Thomas Shoal and its surrounding waters are part of the Philippines’ EEZ and continental shelf, and Chinese Coast Guard vessels patrol near it 

214 Renato Cruz de Castro, After Four Years, the Philippines Acknowledges the 

2016 Arbitral Tribunal Award!, ASIA MAR. TRANSPARENCY INITIATIVE (July 27, 2020), 

https://amti.csis.org/after-four-years-the-philippines-acknowledges-the-2016-

arbitral-tribunal-award/ [https://perma.cc/S4SS-WU8T]. 

215 Michael R. Pompeo, U.S. Position on Maritime Claims in the South China 

Sea, U.S. DEP’T OF STATE (July 13, 2020), https://2017-2021.state.gov/u-s-position-on-maritime-claims-in-the-south-china-sea/index.html [https://perma.cc/ 

J7HD-AF6X]. 

216 Id. 

217 de Castro, supra note 214. 

218 Sebastian Strangio, In UN Speech, Duterte Stiffens Philippines’ Stance on 

the South China Sea, DIPLOMAT (Sept. 23, 2020), https://thediplomat.com/2020/ 

09/in-un-speech-duterte-stiffens-philippines-stance-on-the-south-china-sea/ 

[https://perma.cc/4NFK-GQN8]. 

219 Eimor Santos, Locsin, Pompeo Talk About Reinforcing ‘Binding’ South China 

Sea Arbitral Ruling, CNN PHIL. (Dec. 19, 2020, 3:36 PM), https:// 

www.cnnphilippines.com/news/2020/12/19/locsin-pompeo-south-china-seaarbtiral-ruling.html [https://perma.cc/P6VX-4QVV]. 

220 See China’s White Paper, supra note 177. 

221 Failing or Incomplete?, AMTI, supra note 177. 
2021] LAW AS A BATTLEFIELD 1123 

regularly.222 In May 2018, a PLAN helicopter also harassed a 

Philippine resupply mission to the Sierra Madre, a rusty, dilapidated WWII-era former U.S. Navy ship grounded on the Shoal 

by which the Philippines occupies the feature.223 None of this 

is surprising, since giving up China’s territorial claims would 

represent a massive loss of legitimacy in the eyes of its own 

people and an about-face on the legal position it has advanced 

before the international community. Doing so would also signal a willingness to back away from disputes with China’s 

other neighbors regarding features in the South China Sea. 

In defiance of the decision, China also continues to violate 

the Philippines’ rights to fish within its EEZ. Since 1999, 

China has unilaterally declared a summer fishing ban from 

May to August of each year in all waters north of the twelfth 

degree of latitude.224 China claims it does so to protect fishing 

stocks.225 This area includes large swaths of the EEZs of the 

Philippines and Vietnam. The Philippines and Vietnam have 

angrily rejected the ban in recent years, at times noting the 

arbitral decision.226 

China’s law enforcement vessels and maritime militia vessels also continue to operate in a dangerous manner.227 The 

Chinese Coast Guard, PLAN, and maritime militia vessels continue to violate the COLREGS and SOLAS at Scarborough 

222 Id. 

223 Jim Gomez, Philippines Says It Protests China ‘Harassment’ of Navy Boat, 

ASSOCIATED PRESS (May 30, 2018), https://apnews.com/575ca64f275f42f3bbb6ed 

3ded9821fa [https://perma.cc/5CRU-GLA8]; Jeff Himmelman, A Game of Shark 

and Minnow, N.Y. TIMES MAG. (Oct. 27, 2013), http://www.nytimes.com/newsgraphics/2013/10/27/south-china-sea/index.html [https://perma.cc/3Y4VBANK]. 

224 See John Reed, South China Sea: Fishing on the Front Line of Beijing’s 

Ambitions, FIN. TIMES (Jan. 24, 2019), https://www.ft.com/content/fead89da1a4e-11e9-9e64-d150b3105d21 [https://perma.cc/JR2Z-FRPD]. 

225 Id. 

226 See, e.g., Nestor Corrales, China’s Fishing Ban in South China Sea Against 

Philippine Sovereignty—Palace, INQUIRER.NET (May 21, 2019, 7:19 PM), https:// 

globalnation.inquirer.net/175440/chinas-fishing-ban-in-south-china-seaagainst-philippine-sovereignty-palace [https://perma.cc/68TE-7UN7] (noting 

that a presidential spokesperson has criticized Beijing’s activities as “an affront to 

[the Philippines’] territory and to [the Philippines’] sovereignty”); Vietnam Rejects 

Beijing’s South China Sea Fishing Ban That Covers Philippine EEZ, PHILSTAR GLOB. 

(May 7, 2019, 11:56 AM), https://www.philstar.com/headlines/2019/05/07/ 

1915827/vietnam-rejects-beijings-south-china-sea-fishing-ban-covers-philippine-eez [https://perma.cc/Q9AU-SALF] (noting that a Vietnamese Foreign Ministry spokesperson said “Vietnam opposes and resolutely rejects China’s 

unilateral fishing ban decision”); Reed, supra note 224 (noting that “Vietnam is 

strongly opposed” to China’s activities against Vietnamese fishermen). 

227 Failing or Incomplete?, AMTI, supra note 177. 
1124 CORNELL LAW REVIEW [Vol. 106:1085 

Shoal.228 Numerous examples exist of Chinese harassment of 

Philippine, Vietnamese, and other vehicles, including the harassment of a Philippine resupply vessel near Second Thomas 

Shoal in May 2018,229 a dangerous sudden stop by a PLAN ship 

during a freedom of navigation operation by the U.S.S. Decatur 

in October 2018,230 and a ramming of a Vietnamese fishing 

boat in March 2019.231 All of these qualify as violations of the 

treaties above. 

In a few areas, however, China does seem to be in compliance with the arbitral decision. China has consistently allowed 

Filipino fishermen access to Scarborough Shoal since late 

2016.232 Access to the shoal was so politically important to the 

Duterte government that he claims to have made a secret verbal deal with Chinese president Xi Jinping in 2016 to allow 

Chinese fishing in the Philippine EEZ in exchange for the Chinese allowing Filipinos to fish at Scarborough Shoal.233 If true, 

this agreement would have traded non-compliance with one 

part of the arbitral ruling for compliance with another.234 

Agreement or not, the arbitral ruling almost certainly caused 

China’s decision to stop barring the Philippines from the Shoal. 

Its continued harassment of Filipino boats, however, signals 

that it has not backed away from its territorial claims. 

Second, China has ceased its island-building activity in the 

South China Sea. After the decision, China completed its 

dredging and landfill work on the existing islands in the Spratlys in late 2016.235 After that, it ceased island-building operations in the Spratlys. Its last known island-building activity 

anywhere in the South China Sea was in the Paracels in mid228 Id. 

229 Audrey Morallo, China’s Navy, Coast Guard ‘Harassed’ Filipino Troops on 

Resupply Mission on Ayungin—Alejano, PHILSTAR (May 30, 2018, 5:01 PM), https:/ 

/www.philstar.com/headlines/2018/05/30/1820063/chinas-navy-coastguard-harassed-filipino-troops-resupply-mission-ayungin-alejano [https:// 

perma.cc/X3SQ-93MS]. 

230 Failing or Incomplete?, AMTI, supra note 177; Danielle Paquette, Chinese 

Warship Nearly Hits U.S. Destroyer in South China Sea Near Disputed Islands, 

WASH. POST (Oct. 2, 2018, 3:56 AM), https://www.washingtonpost.com/world/ 

chinese-warship-nearly-hits-us-destroyer-in-south-china-sea/2018/10/02/ 

877cc788-c5fb-11e8-9158-09630a6d8725_story.html [https://perma.cc/2XDL49RY]. 

231 Hau Dinh, Vietnam Says Fishing Boat Rammed and Sunk by Chinese Ship, 

ABC NEWS (Mar. 8, 2019, 6:15 AM), https://abcnews.go.com/International/ 

wireStory/vietnam-fishing-boat-rammed-sunk-chinese-ship-61550702 [https:// 

perma.cc/63BW-P7P9]. 

232 Failing or Incomplete?, AMTI, supra note 177. 

233 Id. 

234 Id. 

235 Id. 
2021] LAW AS A BATTLEFIELD 1125 

2017.236 While it is possible that China had fulfilled its goals 

before it stopped its island-building activities, the timing suggests that the arbitral decision influenced it to stop. 

Some hope remains that China will allow the Philippines to 

exploit the resources of its continental shelf. China does continue to block the Philippines from exploring for oil and gas in 

Reed Bank, although the Tribunal concluded that the area is 

part of the Philippines’ continental shelf.237 However, in November 2018, China and the Philippines signed a memorandum of understanding over the area.238 The details have yet to 

be determined, but it is possible that an eventual agreement 

could allow China to comply with the arbitral decision while 

saving face.239 

Meanwhile, China’s neighbors have begun to use the decision to their advantage. On December 12, 2019, Malaysia referenced the terms of the arbitral decision in a submission with 

the UN Commission on the Limits of the Continental Shelf expressing its rights to an extended continental shelf beyond 

200 nm.240 Its filing, made in accordance with UNCLOS, would 

nearly double the range of the continental shelf northward 

from that in Malaysia’s original 1979 governmental mapping.241 In line with the arbitral ruling, the submission recognized only the territorial seas of the Spratly features and not 

any EEZs. China swiftly responded that the submission “seriously infringed China’s sovereignty, sovereign rights and jurisdiction in the South China Sea.”242 China’s response claimed 

an EEZ based on the South China Sea islands and its historic 

236 Id. 

237 S. China Sea Arbitration (Phil. v. China), Case No. 2013-19, Award, ¶ 716 

(Perm. Ct. Arb. 2016). 

238 See Jay Batongbacal, The Philippines-China MOU on Cooperation in Oil and 

Gas Development, ASIA MAR. TRANSPARENCY INITIATIVE (Dec. 5, 2018), https:// 

amti.csis.org/philippines-china-mou-cooperation-oil-gas-development/ [https:// 

perma.cc/24PA-ZDN5]. 

239 See Failing or Incomplete?, AMTI, supra note 177. 

240 Commission on the Limits of the Continental Shelf (CLCS), Outer Limits of the 

Continental Shelf Beyond 200 Nautical Miles from the Baselines: Submissions to 

the Commission: Partial Submission by Malaysia in the South China Sea, UNITED 

NATIONS: OCEANS & LAW OF THE SEA, https://www.un.org/Depts/los/clcs_new/ 

submissions_files/submission_mys_12_12_2019.html [https://perma.cc/J67YCQN5] (last updated Jan. 29, 2021). 

241 Sean Quirk, Water Wars: Stare Decisis in the South China Sea, LAWFARE 

(Jan. 6, 2020, 8:25 AM), https://www.lawfareblog.com/water-wars-stare-decisissouth-china-sea [https://perma.cc/RMA2-ZQWJ]. 

242 Id. (citing Note Verbale CML/14/2009 from the Permanent Mission of the 

People’s Republic of China to the UN Secretary-General (Dec. 12, 2019), available 

at https://www.un.org/Depts/los/clcs_new/submissions_files/mys85_2019/ 

CML_14_2019_E.pdf [https://perma.cc/E87H-M86Y]). 
1126 CORNELL LAW REVIEW [Vol. 106:1085 

rights in the South China Sea.243 This response marks one of 

the first times that China had explicitly claimed an EEZ based 

on features in the Spratlys.244 Indonesia, too, referenced the 

decision in a UN Submission following a row on December 30, 

2019, with China interference by overfishing in Indonesia’s 

EEZ.245 Indonesia’s foreign ministry cited the arbitral ruling, 

noting China had lost its legal arguments based on historic 

fishing rights.246 In response, China restated its stance that 

the ruling was “illegal, null and void.”247 In June 2020, Indonesia made headlines when it cited the South China Sea Award 

in a note verbale (diplomatic communication) to the U.N. Secretary-General.248 

China has harshly warned its neighbors against bringing 

additional lawsuits like the Philippines’s. Since the arbitral 

decision was announced, Vietnam and Indonesia have been 

rumored to be considering such claims.249 Vietnam was reportedly considering a lawsuit as recently as May 2020.250 

243 Note Verbale CML/14/2009 from the Permanent Mission of the People’s 

Republic of China to the UN Secretary-General (Dec. 12, 2019), available at 

https://www.un.org/Depts/los/clcs_new/submissions_files/mys85_2019/ 

CML_14_2019_E.pdf [https://perma.cc/E87H-M86Y]. 

244 See, e.g., China’s White Paper, supra note 177 (serving as an example of a 

previous occasion in which China claimed an EEZ based on features in the 

Spratlys). 

245 Quirk, supra note 241. 

246 Id. 

247 Patricia Lourdes Viray, China Insists Arbitral Ruling is ‘Illegal’ Amid Indonesia’s Protest, PHILSTAR (Jan. 3, 2020, 3:54 PM), https://www.philstar.com/headlines/2020/01/03/1981797/china-insists-arbitral-ruling-illegal-amidindonesias-protest [https://perma.cc/SKF9-TJAC]. 

248 Ankit Panda, Indonesia Cites 2016 South China Sea Arbitral Tribunal 

Award at UN. Is That a Big Deal?, DIPLOMAT (June 3, 2020) https://thediplomat. 

com/2020/06/indonesia-cites-2016-south-china-sea-arbitral-tribunal-awardat-un-is-that-a-big-deal/ [https://perma.cc/CAZ8-YYAP]. 

249 David Bosco, Indonesia Hints at South China Sea Litigation, LAWFARE 

(Nov. 12, 2015, 3:25 PM), https://www.lawfareblog.com/indonesia-hints-southchina-sea-litigation [https://perma.cc/P3XF-Y2AM]; James Pearson & Khanh 

Vu, Vietnam Mulls Legal Action Over South China Sea Dispute, REUTERS (Nov. 6, 

2019, 6:57 PM), https://www.reuters.com/article/us-vietnam-southchinasea/ 

vietnam-mulls-legal-action-over-south-china-sea-dispute-idUSKBN1XG1D6 

[https://perma.cc/9JJL-A642]. 

250 David Hutt, Vietnam May Soon Sue China on South China Sea, ASIA TIMES 

(May 7, 2020), https://asiatimes.com/2020/05/vietnam-may-soon-sue-chinaon-south-china-sea/ [https://perma.cc/6PSK-AFJM]; Richard Javad Heydarian, 

Vietnam’s Legal Warfare Against China: Prospects and Challenges, ASIA MAR. 

TRANSPARENCY INITIATIVE (Nov. 21, 2019), https://amti.csis.org/vietnams-legalwarfare-against-china-prospects-and-challenges/ [https://perma.cc/SQJ3-

R5ET]; Richard Javad Heydarian, Vietnam Drops a Legal Gauntlet in South China 

Sea, ASIA TIMES (Nov. 12, 2019), https://asiatimes.com/2019/11/vietnam-dropsa-legal-gauntlet-in-south-china-sea/ [https://perma.cc/5QX7-UQDC]; Quirk, 

supra note 241. 
2021] LAW AS A BATTLEFIELD 1127 

When these rumors surfaced in the news, China immediately 

and harshly warned Vietnam “to avoid taking actions that may 

complicate matters or undermine peace and stability in the 

South China Sea as well as our bilateral relations.”251 China, 

again, seems to be running scared of a potential loss in international courts. 

In the years since the arbitral decision, Chinese officials 

have spoken less frequently about the Nine-Dash Line as the 

basis to their claim over the South China Sea.252 China does 

continue to assert historic rights to the entire area, and to rely 

on these rights as the basis for fishing in the EEZs of Vietnam, 

the Philippines, and Indonesia.253 It also bases its objections 

to all of its neighbors’ oil and gas claims on those historic 

rights.254 

Some reports have surfaced that China is now emphasizing 

a new legal argument for its sovereignty over the South China 

Sea Islands known as the “Four Sha” claim.255 This claim 

dates as far back as 1992 in Chinese policy documents.256 

China is asserting sovereignty and maritime entitlements extending from four groups of features in the South China Sea, 

which it claims are islands: Dongsha, Xisha, Nansha, and 

Zhongsha. These “Four Sha” are “respectively referred to [in 

English] as the Pratas Islands, Paracels, Spratlys, and the Macclesfield Bank area.”257 Using UNCLOS terminology, China 

has drawn “straight baselines” around these features to maximize their territorial claims.258 However, this argument plainly 

violates Article 47 of UNCLOS, which states that archipelagic 

251 Ankit Panda, China Warns Vietnam to Not ‘Complicate’ South China Sea 

Dispute by Seeking Legal Arbitration, DIPLOMAT (Nov. 9, 2019), https://thediplomat.com/2019/11/china-warns-vietnam-to-not-complicate-south-china-seadispute-by-seeking-legal-arbitration/ [https://perma.cc/27X9-CJZF]. 

252 Failing or Incomplete?, AMTI, supra note 177. 

253 Id. 

254 Id. 

255 See Richard Javad Heydarian, China’s ‘New’ Map Aims to Extend South 

China Sea Claims, NAT’L INTEREST (Apr. 30, 2018), https://nationalinterest.org/ 

blog/the-buzz/chinas-new-map-aims-extend-south-china-sea-claims-25628 

[https://perma.cc/6ZRV-B6QC]; Julian Ku & Chris Mirasola, The South China 

Sea and China’s “Four Sha” Claim: New Legal Theory, Same Bad Argument, 

LAWFARE (Sept. 25, 2017, 11:00 AM), https://www.lawfareblog.com/south-chinasea-and-chinas-four-sha-claim-new-legal-theory-same-bad-argument [https:// 

perma.cc/RY72-V7WU]; Patricia Lourdes Viray, Shifting Tactics: China Advances 

‘Four Sha’ Claim in South China Sea, PHILSTAR (Sept. 27, 2017, 12:49 AM), https:/ 

/www.philstar.com/headlines/2017/09/27/1742870/shifting-tactics-china-advances-four-sha-claim-south-china-sea [https://perma.cc/VC94-ZRXP]. 

256 Ku & Mirasola, supra note 255. 

257 Id. 

258 Id. 
1128 CORNELL LAW REVIEW [Vol. 106:1085 

baselines may be drawn only if they enclose a state’s “main 

islands and an area in which the ratio of the area of the water 

to the area of the land, including atolls, is between 1 to 1 and 9 

to 1.”259 Even if all of those features were legally considered 

islands, China, with its enormous total land mass, would not 

meet this definition. Observers see this as a way for China to 

advance a new legal claim for sovereignty over these features to 

help it save face in the wake of its discredited ones.260 China 

may also be waging that through use of UNCLOS language and 

an interpretation of UNCLOS, its position may become more 

accepted in the international community. 

Considering that China has rejected the Philippines/China 

arbitration, it seems to be very concerned about its meaning in 

the international community and to its domestic populace. Its 

constant denunciation of any mention of the arbitral decision, 

its harsh warnings to its neighbors against new lawsuits, its 

offer of a major oil and gas deal in exchange for abandoning the 

decision, and its quiet compliance with some of the decision’s 

terms all suggest that China is very concerned about what the 

decision means for its legitimacy in the international community. At home, China’s legal defeat is seen as a national humiliation—perhaps precisely because of the importance that the 

country places on lawfare.261 The arbitral decision not only 

has implications for China’s territorial claims, but it also 

means that China was beaten at its own game. 

D. Instrumental Lawfare: China’s Novel Interpretations of 

UNCLOS 

China also uses instrumental lawfare to advance interpretations of international law that differ from those accepted by 

most of the international community to support its interests. 

Doing so is part and parcel to its definition of Legal Warfare as 

discussed above. It is exemplified by China’s use of legal arguments to defend its decision not to participate in the Philippines-China arbitration, discussed above. It is also evident in 

China’s interpretation of UNCLOS to expand its territorial 

boundaries and EEZs. 

259 Id. 

260 See sources cited supra note 255. 

261 Jill Goldenziel, China Can’t Ignore the Hague’s Decision—But It Can Avoid 

It, HUFFPOST (July 13, 2016, 3:44 PM), https://www.huffpost.com/entry/chinacant-ignore-the-hagues-decisionbut-it-can_b_57869173e4b0cbf01e9f0b74 

[https://perma.cc/Z5HT-UTBX]. 
2021] LAW AS A BATTLEFIELD 1129 

China interprets UNCLOS standards defining coastal baselines in a way that allows it to claim more territory. UNCLOS 

permits the coastal state to determine its baselines by one of 

three methods: the low-water line, straight baselines, or 

archipelagic baselines.262 For coastal states like China and the 

U.S., “the normal baseline for measuring the breadth of the 

territorial sea is the low-water line along the coast.”263 

UNCLOS allows coastal states to apply straight baselines 

to measure territorial seas in select circumstances, such as 

when a coastline is deeply indented and cut, or if a fringe of 

islands exists in the immediate vicinity of the coast.264 China 

has consistently claimed straight baselines since 1958.265 

China first specified the geographic coordinates of its straight 

baseline claims, which allow it to claim nearly 2,000 square 

nautical miles more of territorial seas than if it used the UNCLOS baseline standards.266 The U.S. disputes China’s use of 

straight baselines, noting that “much of China’s coastline does 

not meet either of the two [UNCLOS] geographic conditions 

required for applying straight baselines.”267 China’s lawfare 

tactics here are clear: interpret the law to allow for maximal 

Chinese sovereignty, promulgate domestic laws in support of 

this claim, and publicize that its territorial claims are based on 

internationally accepted legal grounds. 

China’s creative interpretations of UNCLOS amount to a 

form of instrumental lawfare. It is using legal claims to assert 

sovereignty over the South China Sea, together with its military 

actions laying facts on the ground. By adopting domestic laws 

supporting its interpretations of UNCLOS, China bolsters its 

domestic law enforcement capacity against supposed encroachment of UNCLOS. It also bolsters domestic legitimacy 

for its claims and for any actions taken to enforce them. 

262 See UNCLOS, supra note 84, at arts. 5, 7, 47. 

263 Id. at art. 5. 

264 Id. at art. 7. 

265 See Andrew J. Thomson, Keeping the Routine, Routine: The Operational 

Risks of Challenging Chinese Excessive Maritime 8 (Feb. 9, 2003) (unpublished 

paper, Naval War College) (noting that China claimed straight baselines in its 

1958 Declaration on the Territorial Sea, then in the 1992 Law of the People’s 

Republic of China on the Territorial Sea and the Contiguous Zone, and again in 

the 1996 Declaration of the Government of the People’s Republic of China on the 

Baseline of the Territorial Sea). 

266 Id. at 8–9. 

267 Id. at 8. 
1130 CORNELL LAW REVIEW [Vol. 106:1085 

E. Proxy Lawfare: Huawei v. U.S. 

The U.S. is now also engaged in proxy lawfare against the 

Chinese corporate giant Huawei. Huawei is a telecommunications behemoth and one of the biggest players in competition 

for 5G.268 In these actions, the U.S. is treating Huawei as a 

proxy for the Chinese state. Huawei is fighting back hard in 

court, with the support of the Chinese government.269 

Huawei’s lawsuits, however, are unlikely to be successful in 

U.S. court, and its most prominent effort to date so far has 

failed.270 Many observers believe these lawsuits are part of a 

broader campaign by the company—and by extension, China— 

to sway the court of public opinion.271 

1. Huawei v. U.S. 

The U.S. fired the first shots in its legal war against 

Huawei. The 2019-2020 National Defense Authorization Act 

(NDAA), enacted in August 2018, blocks the U.S. government 

from procuring, extending, or renewing a procurement contract 

with Huawei for telecommunications equipment, systems, or 

services.272 It also prohibits the U.S. government from entering 

into, extending, or renewing contracts with other entities that 

use Huawei equipment, systems, or services. Third, it prohibits executive agency heads from obligating or expending loan or 

grant money to contract for any “equipment, system, or service” if Huawei products are “a substantial or essential component” or “critical technology” of any system involved.273 

Huawei was not the only telecommunications contractor affected by the ban. The NDAA specifies that the banned telecommunications equipment and services include any 

equipment produced by Huawei or ZTE or any of their subsidiaries or affiliates, as well as video surveillance and telecommu268 See Complaint at 5–6, Huawei v. United States, 440 F.Supp.3d 607 

(E.D. Tex. 2020) (No. 4:19-CV-00159), 2019 WL 1076892. 

269 See Noah Feldman, Huawei’s Lawsuit Against U.S. Won’t Win in Court, 

BLOOMBERG OPINION (Mar. 11, 2019, 9:19 PM), https://www.bloomberg.com/opinion/articles/2019-03-12/huawei-technologies-v-u-s-constitutional-argumentwon-t-work [https://perma.cc/DM52-NLAT]. 

270 See Huawei v. United States, No. 4:19-CV-00159, 2019 WL 1076892, at 

*27–29 (E.D. Tex. Feb. 18, 2020). 

271 See, e.g., Feldman, supra note 269 (observing that Huawei’s lawsuit is part 

of a broader propaganda campaign to make it look like “the U.S. ignores the rule 

of law when it comes to dealing with China”). 

272 John S. McCain National Defense Authorization Act for Fiscal Year 2019, 

Pub. L. No. 115-232, § 889, 132 Stat. 1636, 1917. 

273 Id. 
2021] LAW AS A BATTLEFIELD 1131 

nications equipment produced by three other named firms.274 

The ban was motivated by a national security concern that 

Chinese telecommunications providers could provide a backdoor in their technology that would enable them to spy on the 

U.S. government.275 This concern was especially important in 

light of a Chinese law that states that all Chinese corporations 

must allow the state to use their products for government use 

upon request.276 Huawei also has a history of industrial espionage and close ties to the Chinese Communist Party.277 

Huawei vociferously denied allegations that its products 

would or could be used for spying.278 On March 6, 2019, 

Huawei responded by filing suit against the U.S. government, 

as well as the secretaries of labor, health and human services, 

education, agriculture, veterans affairs, and the interior, along 

with the administrator of the General Services Administration.279 In its complaint before the U.S. District Court for the 

Eastern District of Texas, Huawei argued that the ban was 

equivalent to an unconstitutional bill of attainder, that the ban 

violated its due process rights, and that the ban violated the 

separation of powers.280 

Huawei’s primary argument was that NDAA section 889 

was tantamount to an unconstitutional bill of attainder. Article I, Section 9 of the U.S. Constitution prohibits bills of attainder, defined by the Supreme Court as laws that “legislatively 

determine[ ] guilt and inflict[ ] punishment upon an identifiable 

274 Id. § 889(f)(3). 

275 Stephanie Zable, Huawei Technologies v. U.S.: Summary and Context, 

LAWFARE (Apr. 9, 2019, 8:03 AM), https://www.lawfareblog.com/huawei-technologies-v-us-summary-and-context [https://perma.cc/2W2B-Z45E]. 

276 See Robert Chesney, Is Huawei a ‘Foreign Power’ or an ‘Agent of a Foreign 

Power’ Under FISA? Insights from a Sanctions Case, LAWFARE (Apr. 8, 2019, 

8:51 AM), https://www.lawfareblog.com/huawei-foreign-power-or-agent-foreignpower-under-fisa-insights-sanctions-case [https://perma.cc/Z6A2-ZNAS] (“[A]ll 

Chinese companies have comprehensive obligations under Chinese law to comply 

when the Chinese government seeks information or assistance for national security purposes.”); Murray Scot Tanner, Beijing’s New National Intelligence Law: 

From Defense to Offense, LAWFARE (July 20, 2017, 11:30 AM), https:// 

www.lawfareblog.com/beijings-new-national-intelligence-law-defense-offense 

[https://perma.cc/5NNS-ZNB3] (describing details of China’s National Intelligence Law). 

277 Zable, supra note 275; see also Chesney, supra note 277 (providing a 

history of Huawei’s relationship with China). 

278 Dan Strumpf & Josh Chin, Huawei’s Mysterious Founder Denies Spying for 

China, Praises Trump, WALL ST. J. (Jan. 15, 2019, 12:00 PM), https:// 

www.wsj.com/articles/huawei-ceo-hits-back-at-claims-company-spies-forchina-11547542616 [https://perma.cc/4DSD-GMUE]. 

279 Complaint at 7–10, Huawei v. United States, 440 F.Supp.3d 607 

(E.D. Tex. 2020) (No. 4:19-CV-00159), 2019 WL 1076892. 

280 Id. at 4. 
1132 CORNELL LAW REVIEW [Vol. 106:1085 

individual without provision of the protections of a judicial 

trial.”281 The Supreme Court has not found that Congress has 

passed a bill of attainder since 1965.282 The Court has established three tests to determine whether a legislative act imposes punishment.283 The first, the historical test, examines 

whether the burden borne by the allegedly punished party is 

similar to the kinds of burdens that have historically been 

deemed punishment. Second, the functional test examines 

“whether the burden is a means to an end or an end in and of 

itself.”284 To determine this, a court would balance the purpose of the act and the burdens it imposes. Third, the motivational test examines whether Congress’s intent was to punish a 

given person or entity.285 

Huawei argued that the NDAA was tantamount to a bill of 

attainder because it “singled out” Huawei with the intent to 

punish it.286 Allegedly, Congress punished Huawei without 

any evidence of wrongdoing on the company’s part, and without any trial. Huawei argued that Section 889 also removed it 

from positions of trust and tarred it and its employees as disloyal and infamous.287 It argued that Congress’s reasons for 

punishing Huawei were unsubstantiated but appeared to stem 

from a belief that the Chinese Communist Party owns or improperly influences Huawei. Huawei asserted that the U.S. had 

produced no evidence of its alleged collaboration with the Chinese government. The complaint cited a 2012 report of the 

House Permanent Select Committee on Intelligence (HPSCI) 

which noted that “it could ‘not prove wrongdoing’ by Huawei,” 

although the Committee also noted that Huawei did not proactively alleviate congressional security concerns.288 Huawei, 

meanwhile, claimed that it had been transparent in its business dealings and in full compliance with Congressional inves281 Nixon v. Admin. of Gen. Servs., 433 U.S. 425, 468 (1977). 

282 See United States v. Brown, 381 U.S. 437, at 449 (1965) (holding that 

criminalizing a Communist Party member’s service on a labor union board 

amounted to a bill of attainder); see also Feldman, supra note 269 (noting that 

Brown was the last time the Court found a law to be a bill of attainder). 

283 Selective Servs. Sys. v. Minnesota Pub. Interest Research Grps., 468 U.S. 

841, 852 (1984). 

284 Kaspersky Lab, Inc. v. U.S. Dep’t of Homeland Sec., 909 F.3d 446, 455 

(D.C. Cir. 2018) 

285 Selective Servs. Sys., 468 U.S. at 852. 

286 Complaint at 18, Huawei v. United States, 440 F.Supp.3d 607 

(E.D. Tex. 2020) (No. 4:19-CV-00159), 2019 WL 1076892. 

287 Id. at 40–41. 

288 Id. at 19–20 (quoting U.S. HOUSE OF REPRESENTATIVES, SELECT COMMITTEE ON 

INTELLIGENCE, INVESTIGATIVE REPORT ON THE U.S. NATIONAL SECURITY ISSUES POSED BY 

CHINESE TELECOMMUNICATIONS COMPANIES HUAWEI AND ZTE vi (2012)). 
2021] LAW AS A BATTLEFIELD 1133 

tigations. Huawei noted that Congress raised the HSPCI report 

in 2018 during debates over the NDAA.289 It cited floor statements from members that appeared to single out Huawei for 

punishment, including statements that Huawei deserved the 

“death penalty” and was an extension of the Chinese Communist Party.290 In Huawei’s view, these statements provided evidence that the NDAA singled out Huawei for punishment.291 

Applying the historical test, Huawei argued that a permanent ban on doing business with the U.S. government is 

equivalent to acts that were traditionally considered punitive.292 Huawei alleged that the passage of the NDAA caused it 

significant injury, including constitutional harm, economic injury from competitive disadvantage loss of contracts, and 

reputational injury.293 It claimed the U.S. ban was overbroad 

because contractors will now need to choose between federal 

contracting and using Huawei equipment, even if that equipment is unrelated to government work.294 Huawei would thus 

suffer secondary and devastating economic effects from the 

ban. Thus, Huawei argued, Section 889 of the NDAA constituted an unconstitutional bill of attainder.295 

Huawei further argued that the punishment without trial 

violated its due process rights. Huawei emphasized that 

neither it nor Huawei USA have any Chinese government ownership.296 Huawei argued that the ban deprived it of the freedom to conduct business with federal agencies, and caused it 

tremendous reputational harm, without any trial or opportunity to defend itself.297 The Supreme Court has specified that 

due process requires a legislative deprivation of liberty must be 

“imposed in accordance with general rules.”298 In spite of that 

directive, Huawei claims the U.S. singled out Huawei for punishment without applying the usual rules that it would when 

imposing punishment on another person or corporate entity. 

289 Id. at 22–23. 

290 Id. at 23 (internal quotation marks omitted). 

291 Id. at 18. 

292 Id. at 39. 

293 Id. at 31. 

294 Id. at 42. 

295 Id. at 44; see also U.S. CONST. art. I, § 9, cl. 3 (“No Bill of Attainder or ex 

post facto Law shall be passed.”). 

296 Complaint at 12, Huawei v. United States, 440 F.Supp.3d 607 

(E.D. Tex. 2020) (No. 4:19-CV-00159), 2019 WL 1076892. 

297 Id. at 4. 

298 Id. at 45–46; see also U.S. CONST. amend. V (“No person shall be . . . 

deprived of life, liberty, or property, without due process of law . . . .”). 
1134 CORNELL LAW REVIEW [Vol. 106:1085 

Thus, Section 889 of the NDAA violated Huawei’s due process 

rights. 

Third, Huawei argued that the NDAA violated the vesting 

clauses, or separation of powers.299 Huawei argued that by 

banning Huawei from contracting with the U.S. government 

after a Congressional investigation, Congress made a “legislative adjudication” of Huawei’s alleged wrongdoing.300 According to Huawei, the Constitution requires that such a 

determination be made by the executive or judiciary. Legislative adjudication deprived Huawei of the opportunity to contest 

the ban through avenues like executive consultation and judicial review. 

At the time of the lawsuit, Huawei simultaneously hired 

two public relations firms to help press its case in the media, 

tying together the Chinese strategies of Media Warfare and 

Lawfare.301 Both firms promptly registered with the State Department under the Foreign Agents Registration Act and escalated the public relations battle. Huawei was clearly as 

concerned, if not more concerned, about information lawfare as 

the battle in the courts. 

Most observers found Huawei’s arguments to be unlikely to 

succeed, if not laughable.302 Harvard Law Professor Noah 

Feldman commented that Huawei probably did not expect to 

win the suit but filed it anyway so that it could win in the court 

of public opinion.303 Huawei would portray its arguments, and 

presumably its defeat, as evidence that the U.S.’s muchvaunted rule of law is a sham. Instead, Huawei would argue 

that the U.S. Constitution was being used as an instrument of 

lawfare for the U.S. government’s own political gain. Around 

the same time, Huawei executives began to make comments 

disparaging the National Security Agency wiretapping scandal 

and supporting Edward Snowden, and to claim that Chinese 

law prohibits the Chinese government from interfering with 

Huawei.304 Other commentators have suggested that the law299 Complaint at 46–48, Huawei v. United States, 440 F.Supp.3d 607 

(E.D. Tex. 2020) (No. 4:19-CV-00159), 2019 WL 1076892. 

300 Id. at 47. 

301 Zable, supra note 275. 

302 See, e.g., Evan Zoldan, The Hidden Issue in Huawei’s Suit Against the 

United States, JUST SEC. (Mar. 28, 2019), https://www.justsecurity.org/63408/ 

the-hidden-issue-in-huaweis-suit-against-the-united-states/ [https://perma.cc/ 

MEZ4-FFFK] (calling Huawei’s lawsuit a “longshot”); Feldman, supra note 269 

(“Although [Huawei’s] brief cites the Constitution, as written the arguments are 

barely legal at all.”). 

303 Feldman, supra note 269. 

304 Zable, supra note 275. 
2021] LAW AS A BATTLEFIELD 1135 

suit was motivated by Huawei’s or China’s desire to compel 

discovery, thereby allowing them access to U.S. government 

information; or to deter other countries who are considering 

banning Huawei telecommunications equipment under U.S. 

pressure.305 

On February 18, 2020, Judge Amos Mazzant of the U.S. 

District Court for the Eastern District of Texas dismissed 

Huawei’s complaint.306 While the Judge found that Huawei 

had been named with specificity in the NDAA, he found that 

Congress had imposed a “permissible burden” on Huawei.307 

Congress had the right to enact Section 889 of the NDAA, 

which had the non-punitive purpose of protecting national security. Section 889 was not overbroad, he said, because it 

“tailors the covered equipment to the types of technology that 

pose a risk of being disrupted by ‘hostile actors’ who engage in 

cyber-attacks and -espionage.”308 Section 889 did not rise to 

the level of a statute that imposes punishment based on infamy 

and disloyalty.309 Isolated, pejorative statements by senators 

about Huawei are not sufficient to prove a punitive intent by 

Congress as a whole. The judge found that Huawei overstated 

its injury, noting that it “can still conduct business with every 

other company and individual in America as well as the remaining 169 countries and regions it currently does business 

with throughout the world.”310 The judge likened Section 889 

to a customer’s decision to take its business elsewhere. Dismissing Huawei’s due process arguments, the judge noted that 

“[c]ontracting with the federal government is a privilege, not a 

constitutionally guaranteed right . . . .”311 Finally, the judge 

dismissed Huawei’s separation-of-powers agreement, noting 

that Congress’s investigative function is essential to its ability 

to make laws and did not amount to an unconstitutional legislative adjudication.312 

In response, Huawei continued to assert that its rights had 

been violated. It released a statement that “[w]hile we understand the paramount significance of national security, the approach taken by the US government in the 2019 NDAA provides 

305 Id. 

306 Huawei v. United States, No. 4:19-CV-00159, 2020 WL 805257, at *30 

(E.D. Tex. Feb. 18, 2020). 

307 Id. at *10, *16. 

308 Id. at *24. 

309 Id. at *11–13. 

310 Id. at *13. 

311 Id. at *28. 

312 Id. at *29. 
1136 CORNELL LAW REVIEW [Vol. 106:1085 

a false sense of protection while undermining Huawei’s constitutional rights.”313 Huawei USA’s security chief, Andy Purdy, 

argued that Huawei’s products had already passed a U.S. national security review.314 He asserted that the U.S. should 

have adopted a risk mitigation program for Huawei equipment 

of the type that it has for Nokia and Ericksson products. Purdy 

emphasized that those companies, both Finnish, have “deep 

ties to China.”315 

2. Arrest of Huawei’s CFO 

Meanwhile, four months after signing NDAA section 889 

into law, the U.S. picked another legal battle with Huawei. On 

December 6, 2018, Canada arrested Meng Wanzhou, Huawei’s 

CFO, on the U.S.’s behalf.316 Meng, also known as Sabrina 

Meng or Cathy Meng, is also the deputy chairwoman of 

Huawei’s board and the daughter of its founder. Meng was 

charged with bank fraud and violations of the U.S.’s sanctions 

on Iran. On March 3, 2019, three days before Huawei filed suit 

against the U.S. over the NDAA, Meng sued the Canadian government for violations of the Canadian constitution related to 

her arrest.317 In arguments reminiscent of those in Huawei v. 

U.S., Meng argued in Canadian court in January 2020 that her 

extradition would violate the Canadian constitution because 

her alleged infractions were not crimes in Canada.318 Here, 

Meng also appeared to be making arguments that would play to 

the Chinese public as if Western legal systems were mockeries 

of themselves, and that would make Canada look like it was in 

313 Sherisse Pham, US Judge Rejects Huawei Lawsuit Challenging a Ban on its 

Products, CNN Business (Feb. 19, 2020, 1:11 AM), https://www.cnn.com/2020/ 

02/19/tech/huawei-us-lawsuit-rejected/index.html [https://perma.cc/DU53-

EJQ8]; see also Steven Overly, Court Rejects Huawei’s Lawsuit over Federal Defense Spending Law, POLITICO (Feb. 18, 2020, 3:43 PM), https:// 

www.politico.com/news/2020/02/18/court-rejects-huawei-lawsuit-spending115838 [https://perma.cc/S8LW-4UKB] (last updated Feb. 18, 2020, 7:17 PM). 

314 Jessica Bursztynsky, Huawei Security Chief, After Court Setback, Says the 

Chinese Tech Giant Needs to Do More Explaining, CNBC (Feb. 19, 2020, 8:37 AM), 

https://www.cnbc.com/2020/02/19/huawei-security-chief-calls-for-talks-afterlegal-setback.html [https://perma.cc/H8ZM-H8UU]. 

315 Id. 

316 Daisuke Wakabayashi & Alan Rappeport, Huawei C.F.O. Is Arrested in 

Canada for Extradition to the U.S., N.Y. TIMES (Dec. 5, 2018), https:// 

www.nytimes.com/2018/12/05/business/huawei-cfo-arrest-canada-extradition.html?searchResultPosition=31 [https://perma.cc/25QZ-FQES]. 

317 Zable, supra note 275. 

318 See Dan Bilefsky & Tracy Sherlock, Huawei Executive Meng Wanzhou’s 

Extradition Fight: What to Know, N.Y. TIMES (Jan. 19, 2020), https:// 

www.nytimes.com/2020/01/19/world/canada/19meng-wanzhou-extraditionhuawei.html [https://perma.cc/6RZG-D5GZ] (last updated Jan. 14, 2021). 
2021] LAW AS A BATTLEFIELD 1137 

the pocket of the U.S. if it complied. As of this writing, a Canadian judge ruled against her motion and subsequent extradition hearings have occurred, but she remains under house 

arrest in Canada pending additional court proceedings.319 

3. U.S. v. Huawei 

On February 13, 2020, the U.S. struck another legal blow 

against Huawei. A U.S. District Court in Brooklyn returned a 

superseding indictment against Huawei and its official and unofficial U.S. subsidiaries, plus Sabrina Meng.320 The indictment came just days after four PLA members were charged 

with hacking Equifax in 2017, stealing trade secrets and personal data of about 145 million Americans, an escalation of 

other U.S. lawfare against China.321 The indictment included 

sixteen charges involving racketeering, fraud, money laundering, and theft of source code, conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO), and 

conspiracy to steal trade secrets.322 All of these were related to 

Huawei’s alleged practice of fraudulently and deceptively misappropriating technology from six U.S. technology companies. 

The superseding indictment also included allegations of 

Huawei’s attempts to conceal its involvement in business in 

countries subject to U.S., E.U., and/or U.N. sanctions, including Iran and North Korea.323 Huawei USA’s security chief denied these charges and claimed they are a part of a broader 

U.S. “campaign to carpet bomb Huawei out of existence.”324 He 

said that the U.S.’s pressure on its allies to avoid business with 

Huawei and its attempts to block American companies from 

319 See Meng Wanzhou: Huawei Executive Suffers US Extradition Blow, B.B.C. 

(May 27, 2020), https://www.bbc.com/news/world-us-canada-52793343 

[https://perma.cc/9CGM-YNBV]; Ellen Nakashima & Amanda Coletta, U.S. In 

Talks to Resolve Criminal Fraud Charges Against Huawei Executive, WASH. POST 

(Dec. 4, 2020, 3:59 P.M.), https://www.washingtonpost.com/national-security/ 

us-in-talks-to-resolve-criminal-fraud-charges-against-huawei-executive/2020/ 

12/03/4b577620-35cc-11eb-8d38-6aea1adb3839_story.html [https:// 

perma.cc/U7CD-NTC7] (noting that Meng was still under house arrest in Canada 

with additional proceedings scheduled for February 2021). 

320 Third Superseding Indictment at 1–2, United States v. Huawei Technologies, Co., No 1:18-cr-00457 (E.D.N.Y. Feb. 13, 2020) [hereinafter Superseding 

Indictment]. 

321 David McCabe, Nicole Hong & Katie Benner, U.S. Charges Huawei With 

Racketeering, Adding Pressure on China, N.Y. TIMES (Feb. 13, 2020), https:// 

www.nytimes.com/2020/02/13/technology/huawei-racketeering-wirefraud.html [https://perma.cc/7QAZ-SAC9] (last updated July 14, 2020). 

322 Superseding Indictment, supra note 320, at 33–49. 

323 Id. at 10. 

324 McCabe, Hong & Benner, supra note 321 (internal quotation marks 

omitted). 
1138 CORNELL LAW REVIEW [Vol. 106:1085 

selling parts to Huawei will ultimately hurt the U.S. As of this 

writing, a trial date has not been set.325 

F. China’s Institutional Lawfare 

China has also been engaging in institutional lawfare. 

China’s Three Warfares include defining the creation of law and 

legal institutions to support its strategic goals. The U.S. has 

advanced its interests for years as the primary funder of the 

world’s most prominent international organizations, including 

the United Nations (U.N.), the World Bank, and the International Monetary Fund.326 China asserts significant power 

through its seat on the U.N. Security Council, but exerts far 

less influence over the U.N.’s many agencies than the U.S. 

does, and gives them far fewer dollars.327 Instead, China has 

begun to form its own institutions, such as the Asian Infrastructure Investment Bank (AIIB) and the New Development 

Bank (NDB) as alternatives to the U.S.-led international 

organizations.328 

Most prominent among Chinese-led international organizations is the AIIB. Around 2009, Chinese leaders began to 

discuss forming a multilateral development bank to rival the 

Japanese-led Asian Development Bank.329 This desire grew 

out of the then-global financial crisis as well as China’s desire 

to increase its role in international monetary policy.330 Chinese President Xi Jinping proposed the creation of the Asian 

Infrastructure Investment Bank (AIIB) in 2013, and by 2015 

the bank’s articles of agreement went into force. The bank 

expanded rapidly. In January 2016, the AIIB had fifty-seven 

founding member states. Its 103 members now include close 

325 See Docket, Huawei Tech. USA v. United States, 4:2019-cv-00159 (E.D. 

Tex.), available at https://dockets.justia.com/docket/texas/txedce/ 

4:2019cv00159/188186 [https://perma.cc/P34W-PD7A] (last visited Mar. 4, 

2021). 

326 On the U.S.’s role in the creation and running of these organizations, see 

MARK MAZOWER, GOVERNING THE WORLD: THE HISTORY OF AN IDEA, 1815 TO THE PRESENT 343–377 (2013). 

327 See generally G. JOHN IKENBERRY & DARREN J. LIM, BROOKINGS INST., CHINA’S 

EMERGING INSTITUTIONAL STATECRAFT: THE ASIAN INFRASTRUCTURE INVESTMENT BANK AND 

THE PROSPECTS FOR COUNTER-HEGEMONY 7–9 (2017), available at https:// 

www.brookings.edu/wp-content/uploads/2017/04/chinas-emerging-institutional-statecraft.pdf [https://perma.cc/92HC-88M9] (describing China’s role in 

international institutions). 

328 See id. at 2. 

329 Mike Callaghan & Paul Hubbard, The Asian Infrastructure Investment 

Bank: Multilateralism on the Silk Road, 9 CHINA ECON. J. 116, 121 (2016). 

330 See generally IKENBERRY & LIM, supra note 327, at 10–11 (providing an 

overview on the AIIB’s history and purpose). 
2021] LAW AS A BATTLEFIELD 1139 

allies of the U.S. from around the globe, but not the U.S. and 

Japan.331 The AIIB is now the second largest development 

bank in the world, behind the World Bank.332 

The AIIB’s stated mission is “to improve social and economic outcomes in Asia” through investment in sustainable 

infrastructure.333 More specifically, China intended the bank 

to finance infrastructure that is part of its Belt and Road Initiative (BRI, also known as the One Belt, One Road Initiative).334 

BRI, Xi’s most ambitious foreign policy effort, is a vast infrastructure-building program throughout Asia.335 China has 

ambitious plans to connect rural China to Europe through 

Central Asia, as well as a “Maritime Silk Road” that would 

connect Southeast Asia to China’s southern provinces through 

ports and railways. Many observers question China’s ability to 

fairly administer a multi-lateral development bank while simultaneously pursuing BRI, given potential conflicts of interest.336 

China’s ability to form multilateral financial institutions 

like the AIIB and NDB with breathtaking speed shows both its 

commitment to institutional lawfare and its potential for using 

it to wield significant power. China has convinced half of the 

world’s states to join the AIIB, despite its clear conflict of interest with promoting BRI. International organizations exert significant force through “soft law,” and conditionality programs 

331 See Members and Prospective Members of the Bank, ASIAN INFRASTRUCTURE 

INV. BANK, https://www.aiib.org/en/about-aiib/governance/members-of-bank/ 

index.html [https://perma.cc/55KS-4ESS] (last updated Feb. 22, 2021). 

332 Tamar Gutner, AIIB: Is the Chinese-Led Development Bank a Role Model?, 

COUNCIL ON FOREIGN RELATIONS (June 25, 2018, 8:00 AM), https://www.cfr.org/ 

blog/aiib-chinese-led-development-bank-role-model [https://perma.cc/PQS2-

G4U7 ]. 

333 Introduction, ASIAN INFRASTRUCTURE INV. BANK, https://www.aiib.org/en/ 

about-aiib/index.html [https://perma.cc/R5UG-RY6Y] (“[O]ur investments in infrastructure and other productive sectors seek to foster sustainable economic 

development, create wealth and improve infrastructure connectivity.”) (last visited 

Mar. 4, 2021). 

334 MARTIN A. WEISS, CONG. RESEARCH SERV., R44754, ASIAN INFRASTRUCTURE INVESTMENT BANK (AIIB) 6 (2017). 

335 Peter Cai, Understanding China’s Belt and Road Initiative, LOWY INST. 

(Mar. 22, 2017), https://www.lowyinstitute.org/publications/understandingbelt-and-road-initiative [https://perma.cc/U4BS-UQEN]. 

336 See Wade Shepard, The Real Role of the AIIB in China’s New Silk Road, 

FORBES (July 15, 2017, 5:14 AM), https://www.forbes.com/sites/wadeshepard/ 

2017/07/15/the-real-role-of-the-aiib-in-chinas-new-silk-road/#2b79e0357472 

[https://perma.cc/HP6Y-6S3L]; see also Yelin Hong, The AIIB Is Seen Very Differently in the US, Europe and China, DIPLOMAT (May 8, 2015), https://thediplomat.com/2015/05/the-aiib-is-seen-very-differently-in-the-us-europe-andchina/ [https://perma.cc/K3V5-8A2D] (“The new bank also serves its own purpose which is to lend money to infrastructure projects of China’s ‘One Belt, One 

Road’ initiative.”). 
1140 CORNELL LAW REVIEW [Vol. 106:1085 

by the World Bank and IMF have been highly successful at 

causing states to fall into line with U.S. foreign policy goals.337 

China will likely follow the U.S.’s playbook to exact demands 

from clients of the AIIB and to advance its own foreign policy 

goals, especially via BRI. 

III 

GLOBAL ESCALATION OF LAWFARE 

Case studies of lawfare efforts by Russia in Ukraine and 

the Arctic and by the U.S. in Afghanistan demonstrate the need 

for a U.S. lawfare strategy to counter our adversaries’ strategic 

and military objectives and bolster our own. Russian use of 

lawfare demonstrates how another U.S. adversary implements 

lawfare in a sophisticated way against the U.S., and how the 

U.S. has failed to respond. U.S. use of lawfare to support its 

efforts building the rule of law in Afghanistan presents a positive use of lawfare, offensively, to achieve a military objective. 

However, these efforts had limited success, partially because of 

the lack of a comprehensive U.S. lawfare strategy to support 

them. 

A. Lawfare by Russia 

Russia’s lawfare doctrine is not as explicitly developed as is 

China’s Three Warfares. No Russian term for lawfare exists. 

However, lawfare is at least implicitly part of the “Gerasimov 

Doctrine” that drives current military operations against its 

adversaries. The Gerasimov Doctrine, first espoused by Russian general Valery Gerasimov in 2013,338 defines Russia’s 

strategy of hybrid warfare.339 The doctrine advocates non-military tactics over conventional warfare to achieve political and 

strategic goals.340 The doctrine prioritizes political, economic, 

337 Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International 

Governance, 54 INT’L ORG. 421, 438 (2000). 

338 Molly K. McKew, The Gerasimov Doctrine, POLITICO: MAGAZINE 

(Sept. – Oct. 2017), https://www.politico.com/magazine/story/2017/09/05/ 

gerasimov-doctrine-russia-foreign-policy-215538 [https://perma.cc/ED3T23NN]. 

339 Hybrid warfare by an adversary can be defined as “[a]ny adversary that 

simultaneously and adaptively employs a fused mix of conventional weapons, 

irregular tactics, terrorism and criminal behavior in the battle space to obtain 

their political objectives.” Frank G. Hoffman, Hybrid vs. Compound War, The 

Janus Choice: Defining Today’s Multifaceted Conflict, ARMED FORCES J. (Oct. 1, 

2009), http://armedforcesjournal.com/hybrid-vs-compound-war/ [https:// 

perma.cc/MF4D-35AH]. 

340 Valery Gerasimov, Contemporary Warfare and Current Issues for the Defense of the Country, MIL. REV. 22, 25 (Harold Orenstein trans., Nov. – Dec. 2017), 
2021] LAW AS A BATTLEFIELD 1141 

and informational means of defeating an adversary. Updating 

the doctrine in 2016, Gerasimov stated that “Hybrid Warfare 

requires high-tech weapons and a scientific substantiation.”341 

Russia has used law to provide the substantiation behind its 

actions in hybrid warfare. Like China, Russia uses lawfare in 

connection with information warfare.342 It uses law to provide 

legal justification for its aggressive actions, both to its own 

population and the international community. 

Russian lawfare must be understood in the context of Russia’s criticism of international law. In general, Russia views 

international law as a tool that the West selectively wields 

against it.343 The current Chairman of Russia’s Investigative 

Committee, Aleksander Bastrykin, has claimed that the Russian constitution has supremacy over all norms of international law.344 In his view, international law is a Western hybrid 

warfare tool that must be fought through social, informational, 

and financial means. Russia’s Ombudsman, Major General 

Moskalkovska, has deemed human rights to be a theme exploited by the West to destabilize Russia, and that Russia 

should protect Russian compatriots abroad as a result. He 

also defines his role as protecting Russian values within Russia, which do not include international human rights law. 

Since the Cold War, Russia has spoken out against Western 

use of international law and called out the West for hypocrisy 

in using and flouting it.345 Russia has developed a lawfare 

strategy to defend itself against these Western actions and also 

to offensively and proactively achieve its own military goals. 

available at https://www.armyupress.army.mil/Portals/7/military-review/ 

Archives/English/Contemporary-Warfare-and-Current-Issues-for-the-Defenseof-the-Country.pdf [https://perma.cc/5AK2-EGLA]; Ben Sohl, Influence Campaigns and the Future of International Competition, REALCLEAR DEF. (Sept. 12, 

2017), https://www.realcleardefense.com/articles/2017/09/12/influence_campaigns_and_international_competition_112280.html [https:// 

perma.cc/99R6-G54C]. 

341 See Mark Voyger, Waging Lawfare: Russia’s Weaponization of International 

and Domestic Law, 10 PER CONCORDIAM: J. EUR. SEC. DEF. ISSUES 32, 33 

(2019), available at https://www.marshallcenter.org/sites/default/files/files/ 

2020-09/pC_V10N1_en_Voyger.pdf [perma.cc/HGK4-CPEN] ((quoting Nachal’nik 

General’nogo shtaba Valerii [Valery Gerasimov], Po opytu Sirii [The Syrian Experience], voenno-promyshlennyi kur’er [MIL. INDUS. COURIER ONLINE (2016), available 

at https://vpk-news.ru/articles/29579 [perma.cc/B3BX-CGVY]). 

342 Mark Voyger, Russian Lawfare – Russia’s Weaponization of International 

Law and Domestic Law: Implications for the Region and Policy Recommendations, 

4 J. BALTIC SEC. 35, 36–37 (2018). 

343 Id. at 37. 

344 Id. at 40. 

345 See generally THOMAS D. GRANT, AGGRESSION AGAINST UKRAINE: TERRITORY, 

RESPONSIBILITY, AND INTERNATIONAL LAW 171–97 (2015). 
1142 CORNELL LAW REVIEW [Vol. 106:1085 

Russia has a long history of using institutional lawfare. 

Russia has historically enacted or adopted laws to justify foreign intervention. Lawfare scholar Mark Voyger marks the 

birth of Russian lawfare in 1774, when Catherine the Great 

attempted to use the Treaty of Kucuk-Kakarca to grant Russia 

the power to intervene militarily in the Balkans in support of 

Orthodox Christian populations within the Ottoman Empire.346 Russia has similarly used international humanitarian 

law to justify Russian “humanitarian operations” as part of its 

“responsibility to protect” Russian-friendly populations— 

whether or not they are ethnically Russian, Russian Orthodox, 

or Russian-speakers—in Moldova in 1992, Georgia in 2008 

and 2014, Syria since 2011, and Ukraine in 2014.347 In a 

similar vein, the Duma passed a 2018 law commemorating 

1783 as the date of Crimea’s ‘accession’ to the Russian empire 

to retroactively justify its annexation of Crimea.348 This law 

was the capstone of a hybrid warfare strategy in which lawfare 

played a major role in hostilities involving Russia and the 

Ukraine in 2014. 

1. Russian Lawfare in Ukraine 

Russia has employed a combination of battlefield exploitation lawfare, instrumental lawfare, institutional lawfare, and 

information lawfare in its claiming of territory in the Ukraine 

from 2014 through the present. On February 23, 2014, 

Ukraine’s pro-Russian president, Victor Yanukovych, was 

ousted from power by a parliamentary vote.349 Political unrest 

ensued, with the U.S. and the EU supporting the parliamentary 

decision.350 Within days, on February 27, armed men stormed 

the Crimean parliament and hoisted the Russian flag.351 They 

similarly occupied airports and additional government buildings, seizing the Crimean Peninsula in a nearly-bloodless coup. 

Although they wore what appeared to be Russian military 

uniforms, these men did not wear the distinctive insignia that 

346 Voyger, supra note 342, at 36. 

347 GRANT, supra note 345, at 37; Here’s Why the Russian Orthodox Church is 

Deeply Connected to the Syrian War, WASH. POST (Dec. 19, 2018, 1:10 PM), https:/ 

/www.washingtonpost.com/video/world/heres-why-the-russian-orthodoxchurch-is-deeply-connected-to-the-syrian-war/2018/12/19/63f60dbe-e35c11e8-ba30-a7ded04d8fac_video.html [https://perma.cc/PA9Y-FWLG]. 

348 Voyger, supra note 342, at 36. 

349 Shane R. Reeves & David Wallace, The Combatant Status of the “Little 

Green Men” and Other Participants in the Ukraine Conflict, 91 INT’L L. STUD. 361, 

365–66 (2015). 

350 Id. at 366. 

351 Id. at 367. 
2021] LAW AS A BATTLEFIELD 1143 

international law requires of combatants. Locals began to refer 

to them as “little green men,” a play on the toy soldiers popular 

with children, and also a reference to alien creatures from 

American movies who are not to be trusted.352 

In March and April, these little green men, together with 

local protestors and the backing of Russian troops amassed at 

the border, began a similar takeover of majority-Russian areas 

of Eastern Ukraine.353 On April 6, protestors and little green 

men occupied government buildings and broadcast facilities in 

the Donbas region, including Donetsk, Luhansk, Slovyansk, 

and more than a dozen other towns. This time, the fight was 

not bloodless. 

Russia used these little green men to engage in battlefield 

exploitation lawfare. Putin initially denied that the little green 

men were Russian or sent by Russia, claiming that they were 

local Crimean self-defense forces. Only on April 17, 2014 did 

Putin finally admit that they were actually SPETNATZ, or Russian Special Forces. However, he claimed that all of the fighting in Eastern Ukraine was being done by local residents. 

Russia accompanied its military efforts in Ukraine with an 

institutional lawfare assault. A draft law was waiting in the 

Duma on February 28, 2014 that would have allowed Russia to 

legally incorporate regions of neighboring states following controlled local referenda.354 The following day, the little green 

men appeared in Crimea. The draft law was later withdrawn 

following the Crimean referendum, presumably because it was 

unnecessary after the successful and bloodless occupation of 

Crimea. Voyger notes that the timing of the law exemplifies 

Russia’s high level of integration of lawfare with its military 

functions.355 On March 16, 2014, Russia again used law to 

justify its actions by manipulating a referendum in Crimea, in 

which the vast majority voted to have the peninsula join 

Russia. 

352 John R. Haines, How, Why, and When Russia Will Deploy Little Green 

Men—and Why the US Cannot, FOREIGN POL’Y RES. INST. (Mar. 9, 2016), https:// 

www.fpri.org/article/2016/03/how-why-and-when-russia-will-deploy-littlegreen-men-and-why-the-us-cannot/ [https://perma.cc/9SRZ-76Z8]. 

353 Reeves & Wallace, supra note 349, at 369. 

354 See Eur. Comm’n for Democracy Through Law (Venice Comm’n), Opinion 

763/2014, On Whether Draft Federal Law No. 462741-6 on Amending the Federal 

Constitutional Law of the Russian Federation on the Procedure of Admission to 

the Russian Federation and Creation of a New Subject Within the Russian Federation Is Compatible with International Law 2 (Mar. 21, 2014), available at https:// 

www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDLAD(2014)004-e [perma.cc/3A4E-XYWQ]. 

355 Voyger, supra note 342, at 38. 
1144 CORNELL LAW REVIEW [Vol. 106:1085 

In April 2014, the Duma updated Russia’s citizenship laws 

to allow granting of Russian citizenship based on historical, 

cultural, and linguistic principles. The Duma thereby granted 

automatic citizenship to populations of contested regions that 

met these historical, cultural, or linguistic criteria. Russia also 

prosecuted high-ranking Ukrainian leaders in absentia for the 

humanitarian crisis in Eastern Ukraine, helping to bolster 

Russia’s case for intervention (even as Russia claimed no intervention was actually taking place).356 Russia then began 

“passportisation,” or distributing Russian passports in Crimea 

to boost the numbers of citizens there.357 Russia had previously used this technique against Georgia in the contested regions of Abkhazia and South Ossetia. Invoking the terminology 

of international human rights law, Russia justified these actions under its “responsibility to protect” Russian citizens as 

well as the right to self-determination.358 

Few in the international community have given much 

credence to Russia’s legal justifications for its interventions in 

Ukraine.359 However, Russia’s institutional and instrumental 

lawfare nonetheless serves to undermine the international legal 

regimes designed to prevent such actions.360 Russian battlefield exploitation lawfare tactics in Ukraine, too, complicate 

compliance with international humanitarian law. Russia likely 

wished to have plausible deniability for the little green men’s 

actions. If Ukrainian troops had fired on the little green men, 

Russia would have been able to both deny its involvement and 

to point a finger at Ukraine for targeting civilians. Sending in 

little green men instead of SPETNATZ in regular uniforms thus 

lessened the risk of escalation and made the optics of the conflict look less aggressive. Russia also blurred the lines of 

whether any conflict could be seen as an international armed 

conflict or a non-international armed conflict, further complicating the legality of any military actions by Ukraine or foreign 

interventions.361 Russia’s battlefield exploitation lawfare tac356 Id. at 39. 

357 Id. at 38–39. 

358 Id. at 39 (internal quotation marks omitted). 

359 See Aaron Akinyemi, Ukraine Crisis: World Leaders React to Unfolding Disaster in Crimea, INT’L BUS. TIMES, https://www.ibtimes.co.uk/ukraine-crisisworld-leaders-react-unfolding-crisis-crimea-1438553 [https://perma.cc/ZNL8-

GUQ5] (last updated Mar. 2, 2014, 11:42 AM). 

360 Voyger, supra note 342, at 38. 

361 See generally Reeves & Wallace, supra note 349, at 372–83 (analyzing how 

the Ukraine hostilities were both international and non-international armed conflicts—existing in parallel). 
2021] LAW AS A BATTLEFIELD 1145 

tics bear strong similarities to China’s use of the sometimescivilian PAFMM. 

2. Russian Instrumental and Institutional Lawfare in the 

Arctic 

Russian lawfare threatens to undermine global cooperation 

in the Arctic. The eight states with territory above the Arctic 

Circle—Canada, Denmark, Finland, Iceland, Norway, Russia, 

Sweden, and the U.S.—signed the Ottawa Declaration in 1996, 

establishing a framework for cooperative governance through 

the Arctic Council and agreeing to decide all disputes by consensus.362 The Arctic Council has been a model for global cooperation, with member states working to establish rules of the 

game on issues like pollution, shipping, climate change, 

search-and-rescue infrastructure, and security coordination.363 Most importantly, the coastal states (Canada, Denmark, Norway, Russia, and the U.S.) agreed to rely on UNCLOS 

for the demarcation of maritime boundaries and settlement of 

territorial disputes in the region.364 All Arctic countries except 

Norway, however, have opted out of UNCLOS’s binding dispute 

resolution provisions.365 

In 2013, Russia issued “The Strategy of Development of the 

Arctic Zone of the Russian Federation and ensuring National 

Security up to 2020.”366 The goal of this strategy was to en362 See ARCTIC COUNCIL, DECLARATION ON THE ESTABLISHMENT OF THE ARCTIC COUNCIL ¶ 7 (Sept. 19, 1996) available at https://oaarchive.arctic-council.org/bit 

stream/handle/11374/85/EDOCS-1752-v2-ACMMCA00_Ottawa_1996_Founding_Declaration.PDF?sequence=5&isAllowed=y] [perma.cc/F54P-2KTK]. 

363 See ARCTIC COUNCIL, NUUK DECLARATION ON THE OCCASION OF THE SEVENTH 

MINISTERIAL MEETING OF THE ARCTIC COUNCIL (May 12, 2011), available at https:// 

oaarchive.arctic-council.org/bitstream/handle/11374/92/07_nuuk_declaration_2011_signed.pdf?sequence=1&isAllowed=y [perma.cc/5GQ9-U45Q] (agreeing to various solutions to approach climate change, indigenous populations, and 

scientific testing in the Arctic); ARCTIC COUNCIL, ILULISSAT DECLARATION (May 28, 

2008) available at https://arcticportal.org/images/stories/pdf/Ilulissat-declaration.pdf [perma.cc/3XAS-9D5F] (declaring an intent to cooperate in reducing pollution in the Arctic Ocean). 

364 EKATERINA KLIMENKO, RUSSIA’S ARCTIC SECURITY POLICY: STILL QUIET IN THE HIGH 

NORTH? 6 (Stockholm Int’l Peace Res. Inst. Pol’y Paper 45, 2016), available at 

https://www.sipri.org/sites/default/files/SIPRIPP45.pdf [https://perma.cc/ 

JLH9-F38V]. 

365 Thomas C. Farrens, Shrinking Ice, Growing Problems: Why We Must Act 

Now to Solve Emerging Problems Posed by an Ice-Free Arctic, 19 TRANSNAT’L L. & 

CONTEMP. PROBS. 655, 671, 678 (2010); see also Sascha-Dov Bachmann & Andr[ ́e]s 

B. Mu[ ̃n]oz Mosquera, Current Developments: Battleground Arctica and Lawfare 

Opportunities, 108 AMICUS CURIAE 19, 20 (2016) (“Article 298 allows nations to opt 

out (all Arctic nations except Norway have exercised this option) of the binding 

dispute resolution provisions . . . .”). 

366 Bachmann & Mu[ ̃n]oz Mosquera, supra note 365, at 21. 
1146 CORNELL LAW REVIEW [Vol. 106:1085 

force Russia’s sovereignty and reinforce its military capabilities 

in the Arctic.367 Russia began to build up forces and bases in 

the Artic region. Arctic Council Cooperation began to wither as 

a result, just as tensions began to fester over Russia’s actions 

in Ukraine.368 Sanctions by the U.S. and the European Union 

against Russia ended a period of collaboration between Russian and Western oil companies in the Arctic, forcing Russia to 

suspend projects and scramble to find viable partners at precisely the moment that plummeting oil revenues put Russia’s 

resource-driven economy in peril.369 Russia continued to build 

up its forces in the region and engage in lawfare to assert 

claims to sovereignty over large swaths of the Arctic.370 It also 

passed domestic legislation to support its sovereignty over the 

region. Russia has thus ensured that any Western interference 

in its Arctic activities will violate its domestic law and positioned itself to argue that such interference violates international law, as well. Bachmann and Mosquera Mu ̃noz call this 

strategy “time bomb” lawfare.371 

a. Drawing Straight Baselines to Claim the Northern 

Sea Route 

One major Russian strategic interest in the Arctic is the 

Northern Sea Route (NSR): the path through the Arctic Sea 

running from the Barents Sea in the West to the Bering Strait 

in the East.372 The NSR connects manufacturing centers in 

East Asia with consumer markets in Europe. The NSR has 

several advantages over the better-traveled southern shipping 

route through the Suez Canal: it avoids congestion in the Strait 

of Malacca, piracy in the Horn of Africa, and ongoing geopolitical instability in the Middle East, and can potentially shave 

weeks off of transit times.373 This strategic potential, especially 

as an easy conduit to move Arctic oil and gas to both Western 

and Eastern markets, has made the NSR a significant focus of 

Russia’s lawfare efforts. 

367 Id. 

368 Jon Rahbek-Clemmensen, The Ukraine Crisis Moves North. Is Arctic Conflict Spill-Over Driven by Material Interests?, 53 POLAR REC. 1, 1 (2017). 

369 KLIMENKO, supra note 364, at 7–8. 

370 Bachmann & Mu[ ̃n]oz Mosquera, supra note 365, at 21. 

371 Id. (internal quotation marks omitted). 

372 L.G., What is the Northern Sea Route?, ECONOMIST: THE ECONOMIST EXPLAINS 

(Sept. 24, 2018), https://www.economist.com/the-economist-explains/2018/ 

09/24/what-is-the-northern-sea-route [https://perma.cc/6AD9-7JMQ]. 

373 Id.; Voyger supra note 342, at 39, 42. 
2021] LAW AS A BATTLEFIELD 1147 

Russia has used instrumental lawfare to assert sovereignty 

over much of the NSR. To do so, it interprets UNCLOS to its 

advantage. Using the concept of the straight baseline, Russia 

has attempted to enlarge the domain of its territorial sea using 

lines that connect the dots around several island groups off the 

Arctic Coast.374 Under UNCLOS, straight baselines are technically only available to archipelagic states, and in cases of small 

island chains in the “immediate vicinity” of states’ coastlines.375 Russia bases its claims on three large archipelagos, 

Novaya Zemlya, Severnaya Zemlya, and the New Siberian Islands, that are located some twenty miles off the Russian 

coast—straining the term “immediate vicinity.”376 By asserting 

that these straits are Russian-internal waters, Russia can use 

them as choke points and effectively exercise complete control 

over the NSR. Russia can restrict entry, charge steep transit 

tariffs, and impose stringent regulations on shipping 

vessels.377 

The U.S. and EU have argued that Russia’s straight baselines are incompatible with international law, and that UNCLOS’s regime on international navigation trumps any Russian 

claim to control over the straits.378 Russia counters that the 

straits are not used by other states with sufficient frequency for 

international transit rules to apply.379 This claim has not been 

resolved; indeed, it has been outstanding since 1963, when the 

U.S. and USSR exchanged diplomatic protests after a U.S. survey of the Laptev Sea.380 The persistent American objection 

may be enough to prevent the Russian claim from solidifying, 

especially given the Arctic Council’s rules on unanimity in decision-making. However, the U.S.’ legal position presents other 

challenges. The U.S. must effectively argue that UNCLOS’s 

rules regarding transit passage represent a codification of pre374 See EUROPEAN COMM’N, LEGAL ASPECTS OF ARCTIC SHIPPING: SUMMARY REPORT 7, 

16 (2010). 

375 UNCLOS, supra note 84, at art. 7 § 1. 

376 See Russia: Straight Baseline Claim, U.S. NAVY: JUDGE ADVOCATE GENERAL’S CORPS, https://www.jag.navy.mil/organization/documents/mcrm/RussiaChart.pdf [https://perma.cc/EHL4-N88C]. 

377 Cf. EUROPEAN COMM’N, supra note 374, at 7 (noting that Canada could 

exclude entry into its waters if it applied a similar assertion to its own Northwest 

Passage). 

378 See id. at 8, 13. 

379 Id. at 8. 

380 Andrey A. Todorov, The Russia-USA Legal Dispute over the Straits of the 

Northern Sea Route and Similar Case of the Northwest Passage, 29 ARCTIC & N. 62, 

62–64 (2017). Canada has attempted to assert straight baselines in its own 

Northwest Passage, and thus generally supports Russia in the NSR dispute. See 

id. at 71–73. 
1148 CORNELL LAW REVIEW [Vol. 106:1085 

existing customary international law. Both Russia and Canada, both members of the Arctic Council, dispute this 

claim.381 

b. Using Pollution and Shipping Regulations to Control 

the Northern Sea Route 

Russia has also attempted to exercise significant control 

over the NSR through instrumental lawfare by instituting strict 

regulations on pollution and shipping safety. These efforts rely 

on Article 234 of UNCLOS, which grants states the ability to 

regulate pollution, including indirect pollution prevention by 

way of safety and navigation rules to lower the risk of accidents 

and oil spills, in ice-covered parts of their exclusive economic 

zone (EEZ), “where particularly severe climatic conditions . . . 

create obstructions or exceptional hazards to navigation, and 

pollution of the marine environment could cause major harm to 

or irreversible disturbance of the ecological balance.”382 Russia uses this rule to its advantage in the NSR, applying regulations that are significantly stronger than the “‘generally 

accepted international rules and standards’ (GAIRAS).”383 

These rules include mandatory insurance and ice-breaker escorts (both of which are expensive and exclusively controlled 

by Russia), as well as requirements for state approval and carrying of state pilots.384 

This instrumental lawfare effectively allows Russia to exclude foreign military and government vessels, and to blur the 

boundary between the territorial sea and the EEZ, effectively 

allowing Russia to assert stringent control over a vastly larger 

area of the NSR than UNCLOS would permit.385 Once again, 

an impasse exists between U.S. claims that transit passage 

rules trump any right Russia has under Article 234, and Russian responses that the U.S. lacks any basis to claim transit 

passage rights in the NSR under UNCLOS or customary law.386 

Indeed, until shipping through the NSR becomes a major factor 

in global trade, which is unlikely to occur until oil prices rise 

381 Id. at 68. 

382 UNCLOS, supra note 84, at art. 234. 

383 EUROPEAN COMM’N, supra note 374, at 11 (internal quotation marks 

omitted). 

384 Id. at 16. 

385 Andr[ ́e]s B. Mu[ ̃n]oz Mosquera & Sascha-Dov Bachmann, Russia’s Lawfare 

in the Arctic, 17-1 OPERATIONAL L.Q. 13, 14–15 (2016). 

386 EUROPEAN COMM’N, supra note 374, at 18. 
2021] LAW AS A BATTLEFIELD 1149 

significantly, this dispute will likely remain unresolved.387 

Meanwhile, Russia continues to build military bases and 

search-and-rescue capacity on its Arctic coast to strengthen its 

claims to sovereignty in the NSR.388 It has also held snap 

military exercises in the region, in violation of an OSCE agreement, to support its intent.389 This buildup, which creates 

facts on the ground, can also be considered a lawfare “time 

bomb.”390 It gives Russia the pretext to claim Western interference with the NSR as an invasion of Russian sovereignty. 

c. Instrumental Lawfare: Claiming the Lomonosov and 

Mendeleev Ridges 

In 2007, a team of Russian underwater “scientists” audaciously planted a Russian flag on the sea floor below the North 

Pole.391 Russia thus tried to create facts on the ground, some 

six hundred miles to the north of the northernmost point in 

Russia’s territory, where prior efforts to claim the territory had 

failed. 

This attempt followed a failed instrumental lawfare effort. 

In 2001, Russia had filed a claim before the UNCLOS Commission on the Limits of the Continental Shelf (CLCS).392 Russia 

argued that, under UNCLOS, it was justified in extending its 

EEZ by 460,000 square miles, giving it exclusive right to vast 

reserves of oil and broadening the area over which it can attempt to assert de facto control under Article 234 by orders of 

magnitude.393 To support its claim, Russia cited UNCLOS’s 

provisions on the continental shelf, which allow states to delineate the outer reaches of their EEZ based on “the natural prolongation of its land territory to the outer edge of the 

continental margin” extending from its landmass.394 Russia 

 ̈ 

TURNED SOUR? ANALYSING RUSSIA’S POLICIES IN THE ARCTIC 5 (Finnish Inst. of Int’l Aff. 

Briefing Paper 192, 2016), available at https://www.fiia.fi/wp-content/uploads/ 

2017/10/bp192_moscows-arctic-dreams-turned-sour.pdf [https://perma.cc/ 

4TUX-QRL9]. 

388 Mu[ ̃n]oz Mosquera & Bachmann, supra note 385, at 15; Hege Eilertsen, 

Four New SAR Centers in the Russian Arctic, HIGH N. NEWS (Feb. 2, 2018, 

387 JUHA KAPYL  ̈ A, HARRI MIKKOLA & TOIVO MARTIKAINEN, MOSCOW’S ARCTIC DREAMS 

10:09 AM), https://www.highnorthnews.com/en/four-new-sar-centers-russianarctic [https://perma.cc/V7W3-Z5FJ]. 

389 Voyger, supra note 342, at 39. 

390 Mu[ ̃n]oz Mosquera & Bachmann, supra note 385, at 15. 

391 Tom Parfitt, Russia Plants Flag on North Pole Seabed, GUARDIAN (Aug. 2, 

2007), https://www.theguardian.com/world/2007/aug/02/russia.arctic 

[https://perma.cc/ET7Y-2T9D]. 

392 KLIMENKO, supra note 364, at 11–12. 

393 Bachmann & Mu[ ̃n]oz Mosquera, supra note 365, at 21. 

394 UNCLOS, supra note 84, at art. 76, 77. 
1150 CORNELL LAW REVIEW [Vol. 106:1085 

has asserted since shortly after ratifying UNCLOS in 1997 that 

its continental shelf includes the Lomonosov and Mendeleev 

Ridges, underwater land formations that extend out from the 

Russian territorial sea and run for hundreds of miles below the 

Arctic Ocean.395 The audacity of this claim has been compared 

to Chinese machinations in the South China Sea, discussed 

above.396 

Russia’s claim was initially rejected in 2002 based on a 

lack of sufficient evidence.397 Russia then made scientific discovery in the region a top strategic priority, and developed more 

facts on the ground in the process. Russia launched at least 

ten scientific expeditions to gather evidence over the next decade, including the 2007 flag-planting expedition. Russia submitted a revised claim in 2015,398 but it has been countered by 

Denmark (on behalf of Greenland) in 2014,399 and Canada in 

2019.400 Canada and Denmark also assert that the Lomonosov 

and Mendeleev Ridges extend from their own continental 

shelves, thus putting a vast area of the sea and the oil and gas 

reserves beneath it in contention between all three countries.401 The scientific validity of the claims is difficult to evaluate, and if the ridges in question do extend fully from one 

continental shelf to another, multiple claims could have merit. 

In the meantime, the fact of multiple existing claims will likely 

freeze the dispute for now. CLCS rulings are strictly recommendatory, and UNCLOS Article 83 marks international agreements between states as the sole format for decisively 

395 KLIMENKO, supra note 364, at 11. 

396 See Bachmann & Mu[ ̃n]oz Mosquera, supra note 365, at 21; supra notes 

92–113 and accompanying text. 

397 KLIMENKO, supra note 364, at 11–12. 

398 PARTIAL REVISED SUBMISSION OF THE RUSSIAN FEDERATION TO THE COMMISSION ON 

THE LIMITS OF THE CONTINENTAL SHELF IN RESPECT OF THE CONTINENTAL SHELF OF THE 

RUSSIAN FEDERATION IN THE ARCTIC OCEAN: EXECUTIVE SUMMARY 5 (2015), available at 

https://www.un.org/Depts/los/clcs_new/submissions_files/rus01_rev15/ 

2015_08_03_Exec_Summary_English.pdf [https://perma.cc/V3XE-HSDF]. 

399 PARTIAL SUBMISSION OF THE GOVERNMENT OF THE KINGDOM OF DENMARK TOGETHER WITH THE GOVERNMENT OF GREENLAND TO THE COMMISSION ON THE LIMITS OF THE 

CONTINENTAL SHELF: THE NORTHERN CONTINENTAL SHELF OF GREENLAND (2014), available at https://www.un.org/Depts/los/clcs_new/submissions_files/dnk76_14/ 

dnk2014_es.pdf [https://perma.cc/24TE-E3ET]. 

400 PARTIAL SUBMISSION OF CANADA TO THE COMMISSION ON THE LIMITS OF THE CONTINENTAL SHELF REGARDING ITS CONTINENTAL SHELF IN THE ARCTIC OCEAN: EXECUTIVE 

SUMMARY 5 (2019), available at https://www.un.org/Depts/los/clcs_new/submissions_files/can1_84_2019/CDA_ARC_ES_EN_secured.pdf [https:// 

perma.cc/77XH-SPY4]. 

401 Frozen Conflict, ECONOMIST (Dec. 17, 2014), https://www.economist.com/ 

international/2014/12/17/frozen-conflict [https://perma.cc/ZSE3-24EA]. 
2021] LAW AS A BATTLEFIELD 1151 

adjudicating contested claims.402 Thus, a conclusive answer 

will likely involve a settlement.403 In the meantime, Russia is 

likely to continue to create facts on the ground to make it more 

likely that the settlement will be in its favor. 

3. Ukrainian Lawfare Against Russia? 

Recently, Ukraine has combatted Russian lawfare by using 

lawfare of its own. Ukraine filed suit against Russia in the 

International Court of Justice, arguing that Russia’s activities 

in Donbas and Crimea support terrorism and violate the Convention for the Elimination of Racial Discrimination.404 On 

November 8, 2019, the Court ruled that it has jurisdiction in 

the case, and as of this writing, a hearing on the merits is 

pending.405 

It remains to be seen how successful Ukraine’s lawfare will 

be in achieving military objectives and/or setting the conditions for negotiation with Russia. Some of Russia’s other 

neighbors may follow suit. Estonia and Latvia have announced 

that they are exploring legal options to obtain compensation 

from Russia for Soviet occupation damages.406 Russia will 

likely attempt to spin Ukraine’s use of the ICJ as a Westernbacked attempt to use illegitimate Western legal tools against 

it. 

B. U.S. Institutional and Information Lawfare in 

Afghanistan 

The U.S. has used institutional and information lawfare to 

support its efforts in Afghanistan. The U.S. established a Rule 

of Law Field Force in Afghanistan (ROLFF-A) in September 

402 UNCLOS, supra note 84, at art. 83; Commission on the Limits of the Continental Shelf (CLCS) Purpose, Functions and Sessions, UNITED NATIONS: OCEANS & 

LAW OF THE SEA, https://www.un.org/Depts//los/clcs_new/commission_purpose.htm [https://perma.cc/633U-EQAD] (last visited Mar. 12, 2021). 

403 Iuchi Yumiko & Usui Asano, The Functions and Work of the Commission on 

the Limits of the Continental Shelf: How It Responds to Disputed Island Claims 

Among Coastal States, THE SASAKAWA PEACE FOUNDATION: REV. ISLAND STUD. (Sept.

 19, 2013), https://www.spf.org/islandstudies/readings/b00005.html [https:// 

perma.cc/HA2M-UWK3]; see UNCLOS, supra note 84, at art. 83. 

404 Application of the International Convention for the Suppression of the 

Financing of Terrorism and of the International Convention on the Elimination of 

All Forms of Racial Discrimination (Ukr. v. Russ.), Preliminary Objections, 2019 

I.C.J. Rep. 8, ¶1 (Nov. 8). 

405 See Press Release, Int’l Court of Justice, Extension of the Time-Limit for 

the Filing of the Counter-Memorial of the Russian Federation (July 20, 2020), 

available at https://www.icj-cij.org/public/files/case-related/166/166-

20200720-PRE-01-00-EN.pdf [https://perma.cc/MJP2-S6JN]. 

406 Voyger, supra note 342, at 41. 
1152 CORNELL LAW REVIEW [Vol. 106:1085 

2010 to build legal institutions within Afghanistan and bolster 

the legitimacy of counterinsurgency (COIN) efforts.407 The idea 

behind ROLFF-A was that the U.S. needed to establish Afghan 

legal institutions to win the trust of the Afghan population and 

keep them from supporting violent non-state actors instead. 

ROLFF-A thus served to legitimize the new Afghan government 

while delegitimizing adversaries through institutional lawfare. 

Building these institutions would also provide an information 

lawfare function that would bolster the narrative of building a 

just and functional government of Afghanistan and building 

public trust in those institutions. 

Then-Brigadier General Mark Martins, the commander of 

ROLFF-A, defined its actions as “lawfare.”408 In building the 

rule of law in Afghanistan, Martins defined rule of law as 

“hold[ing] that all entities in society, public and private, including the state itself, [ ] accountable to laws.”409 He further noted 

that “[t]he rule of law increases in proportion to which the laws 

are made by a legislature or by some process representative of 

the people, enforced by police and security forces that themselves follow the law, and interpreted and applied by judges 

who are evenhanded, honest, and independent.”410 Use of 

lawfare—including portraying U.S. efforts as legal—creates a 

legitimacy and authority for the Afghan government that the 

enemy cannot match.411 People generally prefer a government 

that adheres to the rule of law.412 However, this only applies if 

the government has legitimacy: both the power to protect its 

people and the authority to do so. 

407 SPECIAL INSPECTOR GEN. FOR AFG. RECONSTRUCTION, RULE OF LAW IN AFGHANISTAN: U.S. AGENCIES LACK A STRATEGY AND CANNOT FULLY DETERMINE THE EFFECTIVENESS OF PROGRAMS COSTING MORE THAN $1 BILLION 10 (2015) [hereinafter SIGAR 

Report]. 

408 Mark Martins, Lawfare: So Are We Waging It?, LAWFARE (Nov. 25, 2010, 

12:01 AM), https://www.lawfareblog.com/lawfare-so-are-we-waging-it [https:// 

perma.cc/254A-KCBF]. 

409 Mark Martins, Building the Rule of Law in Theory, LAWFARE (Nov. 22, 2010, 

7:05 AM), https://www.lawfareblog.com/building-rule-law-theory [https:// 

perma.cc/RDP2-DUJ4]. 

410 Id.; see also Mark Martins, Rule of Law in Iraq and Afghanistan? HARV. 

NAT’L SEC. J. FORUM 1, 4–5 (2011), available at https://harvardnsj.org/wp-content/uploads/sites/13/2011/04/Forum_Martins_.pdf [https://perma.cc/N828-

5SS8] (arguing that Afghanistan should strengthen its dispute resolution mechanisms to achieve security, stability, and a strong government in which people 

have confidence). 

411 Mark Martins, Reflections on “Lawfare” and Related Terms, LAWFARE 

(Nov. 24, 2010, 12:01 AM), https://www.lawfareblog.com/reflections-lawfareand-related-terms [https://perma.cc/HPD9-SV7J]. 

412 Martins, supra note 408. 
2021] LAW AS A BATTLEFIELD 1153 

Building the rule of law and legal institutions was thus 

considered a powerful weapon. ROLFF-A was deployed in the 

area where the Pashtun insurgency was the strongest. ROLFFA had four primary objectives in ten provinces: “(1) develop 

human capacity, (2) build sustainable infrastructure, (3) facilitate justice sector security, and (4) promote awareness of the 

law and access to justice.”413 Specific activities included improving judicial infrastructure, training judges and law enforcement, and public outreach regarding law and trials. They 

also improved criminal justice capacity, dispute resolution services, and anti-corruption institutions.414 ROLFF-A also prioritized emphasizing the legality of other U.S. COIN actions, 

including “conventional warfare, counterterror operations, security force capacity building, intelligence collection, physical 

security measures, public information, cyber security and warfare, economic development, electoral and other initiatives to 

connect government to the people.”415 

These efforts served to delegitimize and weaken the enemy’s will on a political level. Professor Ganesh Sitaraman 

further emphasizes the importance of building the rule of law 

for counterinsurgency and integrating it into military operational planning.416 Sitaraman notes that transitional justice, 

too, can build legitimacy in a new government and help keep 

infighting from harming unity of effort.417 By building judicial 

and law enforcement capacities, and by using those for transitional justice efforts, a government can build legitimacy and 

win the hearts and minds of the people. 

ROLFF-A’s efforts had mixed success. The Special Inspector General for Afghanistan Reconstruction (SIGAR) reported 

that efforts to develop the rule of law in Afghanistan were hampered by at least four factors.418 Two of those were fundingrelated: most of the interagency was unable to account for the 

total funds spent in support of rule of law development.419 The 

agencies also did not implement appropriate measurement 

mechanisms and evaluations of the performance of their efforts. Unsurprisingly, pervasive corruption in Afghanistan also 

hindered rule of law development efforts. 

413 SIGAR Report, supra note 407, at 10. 414 Goldsmith, supra note 64. 

415 Martins, supra note 411. 

416 GANESH SITARAMAN, THE COUNTERINSURGENT’S CONSTITUTION: LAW IN THE AGE OF 

SMALL WARS 241 (2013). 417 Id. at 109. 

418 SIGAR Report, supra note 407, at i. 

419 Id. at ii. 
1154 CORNELL LAW REVIEW [Vol. 106:1085 

The primary reason efforts to build the rule of law were 

impaired, however, was the lack of “a comprehensive rule of 

law strategy to help plan and guide” the efforts of U.S. agencies.420 The report notes that “[w]ithout an approved strategy 

in place, U.S. efforts may not be properly coordinated across 

agencies, monitored for alignment with U.S. and Afghan development goals and objectives, or managed effectively to ensure 

proper expenditure of U.S. taxpayer monies.”421 The agencies 

did not have a consistent policy for the scope of their rule-oflaw-building activities. The sixty-six programs that the Department of Defense (DoD), Department of Justice (DoJ), State, and 

the U.S. Agency for International Development (USAID) developed for rule of law assistance between 2003 and 2014—at the 

cost of more than $1 billion—thus suffered from lack of coordination. The development of a U.S. lawfare strategy could have 

made U.S. rule-of-law-building efforts in Afghanistan far more 

effective, and likely less expensive as well. 

With respect to ROLFF-A in particular, the DoD failed to 

implement the performance management guidelines for DoD 

rule of law activities, including assessment, monitoring, and 

evaluation of progress.422 It also could not account for all of 

the funds spent.423 ROLFF-A never conducted a baseline study 

of rule of law efforts in Afghanistan, which made it difficult to 

measure progress. A 2011 data collection effort to assess performance on certain rule of law indicators was poorly designed, 

insufficiently tied to ROLFF-A’s primary operational efforts, 

and poorly measured and reported.424 DoD could not even 

keep track of some basic, easily-measurable statistics. In recording the number of public trials held by province, officials 

only recorded data for eight of ten program provinces in 2011, 

only three in mid-2012, and only one in late 2012. As a general 

matter, performance indicators were measured inconsistently 

across programs and provinces. Officials cited insufficient 

training and lack of security support as reasons for this. 

The program did have some successes. These included 

improved security at justice facilities: training, mentoring, and 

technical support programs such as the Justice Center in 

420 Id. at i–ii. 

421 Id. 

422 See generally, CTR. FOR LAW AND MILITARY OPERATIONS, RULE OF LAW HANDBOOK: A PRACTITIONER’S GUIDE FOR JUDGE ADVOCATES 71–187 (Mike Cole ed., 2011) 

(laying out the various measures to take when implementing the rule of law 

abroad and building an international order). 

423 SIGAR Report, supra note 407, at 10. 

424 Id. at 11. 
2021] LAW AS A BATTLEFIELD 1155 

Parwan. The latter efforts measurably led to more efficient case 

management, higher conviction rates, and improved quality of 

evidence in the legal process. However, frequent staff turnover, 

lack of institutional knowledge, and lack of information-sharing by the staff hampered these efforts. Furthermore, lack of 

security for justice staff also hampered ROLFF-A’s efforts.425 

The development of a lawfare strategy could have solved 

many of the problems with ROLFF-A that were identified by 

SIGAR. SIGAR recommended the creation and implementation 

of a comprehensive rule of law strategy for Afghanistan.426 It 

would include a common definition and clarification of the 

scope of rule of law activities that should be conducted by U.S. 

agencies. It also recommended improved mechanisms for evaluating program performance and tracking funding. It recommended ongoing assessment of the sustainability of rule of law 

programs by the U.S., and eventually by the Afghan government, given the security situation and persistent corruption in 

Afghanistan, and the level of the Afghan government’s commitment to these programs. As discussed below, having a comprehensive lawfare strategy in place would have solved many of the 

problems identified by SIGAR. 

C. Lawfare Elsewhere 

Lawfare has been on the rise elsewhere in recent years. 

Examples abound, from Palestine’s use of the International 

Court of Justice, International Criminal Court, and United Nations to gain the recognition as a state that it could not achieve 

militarily, to information lawfare used against the U.S. by Iran 

following its killing of General Qassem Soleimani in January 

2020, to border disputes in the International Court of Justice 

that were unresolved through military conflict.427 Thorough 

discussion of these and other examples of lawfare lies beyond 

the scope of this Article. However, the use of lawfare by and 

within countries around the globe emphasizes the need for the 

425 Id. 

426 See id. at 22. 

427 On Palestine, see e.g., Liron Libman, The ICC’s Prosecutor [sic] Decision to 

Investigate the ‘Situation in Palestine’ and Palestinian Statehood, LAWFARE 

(Jan. 15, 2020, 8:31 AM), https://www.lawfareblog.com/iccs-prosecutor-decision-investigate-situation-palestine-and-palestinian-statehood [https:// 

perma.cc/3JHT-YC8R] (reporting that an International Criminal Court prosecutor 

intended to open an investigation into Israel’s actions in Palestine). On Soleimani, 

see Jill Goldenziel, Iran and the Rhetoric of International Law, BALKINIZATION 

(Jan. 10, 2020), https://balkin.blogspot.com/2020/01/iran-and-rhetoric-of-international-law.html [https://perma.cc/KJ9A-W9KZ]. 
1156 CORNELL LAW REVIEW [Vol. 106:1085 

U.S. to more holistically incorporate lawfare into its military 

and political strategies. 

IV 

ANALYSIS: WHY THE U.S. NEEDS A LAWFARE STRATEGY 

The U.S. must develop a lawfare strategy in order to effectively coordinate with our allies and other law-abiding states 

and combat our adversaries. Indeed, the U.S. has already 

fallen behind in this area due to a lack of a lawfare strategy. 

U.S. efforts in building the rule of law in Afghanistan exemplify 

how an improved lawfare strategy could have enhanced and 

reduced the need for our military efforts there. Proactive use of 

lawfare by the U.S. in the future would improve efforts to advance our national strategy, reduce costs to the government, 

and potentially save lives. 

A. Using the Legal Instrument of National Power 

The U.S. has failed to include lawfare as part of its traditional discussion of the instruments of military power. The 

military has long taught that the traditional instruments of 

military power are encompassed by the acronym DIME: diplomatic, informational, military, and economic power. Some 

scholars have expanded this acronym to “DIMEFIL,” or “MIDLIFE,” adding financial, intelligence, and law enforcement to 

the instruments of power.428 With the exception of economic 

sanctions, the use of lawfare is not included in any of these, 

and thus is barely considered as a method for the U.S. to assert 

power. 

Skeptics might argue that the U.S. does not need a lawfare 

strategy. After all, the U.S. has achieved a relatively successful 

foreign policy without one. Without a written strategy, the U.S. 

is not constrained by any particular doctrine in its use of 

lawfare, and may benefit from strategic ambiguity. However, 

the benefits of creating a lawfare strategy far outweigh the 

costs. The ability for the U.S. to coordinate its efforts and 

better collaborate with our partners and allies will strengthen 

its efforts and may obviate the need for some military actions. 

Furthermore, the U.S. needs lawfare more than ever before. 

First, with more of warfare shifting to the information realm, 

the U.S. needs to use law as part of its information strategy to 

428 See Cesar Augusto Rodriguez, Timothy Charles Walton & Hyong Chu, Putting the “FIL” into “DIME”: Growing Joint Understanding of the Instruments of 

Power, 97 Joint Force Q. 121, 122 (2020); DEP’T OF THE ARMY, FIELD MANUAL 

(INTERIM) 3-07.22, COUNTERINSURGENCY OPERATIONS vi (Oct. 2004). 
2021] LAW AS A BATTLEFIELD 1157 

bolster the legitimacy of its own actions and delegitimize the 

enemy’s. Failure to do so will allow the enemy to dominate the 

narrative of conflict and undermine U.S. actions. Even if a 

battle is won on the ground, it will be lost in the court of public 

opinion if the public does not believe that the U.S.’ actions are 

legal. Backlash against the U.S. government after the 

Soleimani strike provides a prime example of this. 

Second, a U.S. lawfare strategy will be more effective the 

sooner that it is implemented. The U.S. has enjoyed decades of 

supremacy as the world’s strongest superpower and the primary shaper of international law and international affairs. 

However, with the rise of China and with the ability of adversaries like Russia and Iran to challenge the U.S. by non-kinetic 

means, the age of U.S. supremacy in shaping international 

affairs may be coming to an end. Now is thus the time for the 

U.S. to take advantage of its current standing, reputation, and 

history of following and shaping the rule of law to develop a 

comprehensive lawfare strategy. 

Third, and most concretely, the failings of ROLFF-A emphasize the need for a lawfare strategy. As noted above, SIGAR 

determined that the primary reason for the failure of many of 

ROLFF-A’s activities was the lack of a comprehensive strategy 

to coordinate across government agencies and monitor and 

evaluate funding and programs.429 A whole-of-government 

lawfare strategy, backed by expert staff within the government, 

could have solved many of the problems identified with ROLFFA. Expert staff could have supported ROLFF-A’s efforts, 

trained military personnel in implementing the rule of law and 

using information lawfare to support its efforts, and provided 

expertise to help the U.S. and its allies monitor and evaluate 

ROLFF-A’s accomplishments. It could also have ensured consistency and coordination across interagency efforts, and ensured more security support for civilian activities. The U.S. has 

standing programs for overseas prosecutorial development and 

rule-of-law-building efforts in Iraq within the Department of 

Justice.430 If history is any guide, the U.S. will undoubtedly be 

involved in more comprehensive rule-of-law-building efforts in 

the future. The U.S. would be wise to develop a comprehensive 

429 SIGAR Report, supra note 407, at 10–11. 

430 See Office of Overseas Prosecutorial Development, Assistance and Training 

(OPDAT), U.S. DEP’T JUSTICE, https://www.justice.gov/criminal-opdat [https:// 

perma.cc/AP66-2B48] (last visited Nov. 7, 2020); Office of the Rule of Law Coordinator, U.S. DEP’T JUST. ARCHIVES, https://www.justice.gov/archive/iraq/rule-oflaw.htm [https://perma.cc/S77J-QK8A] (last updated Mar. 2018). 
1158 CORNELL LAW REVIEW [Vol. 106:1085 

lawfare strategy now and build expertise within government 

that can coordinate future lawfare efforts. 

Fourth, a lawfare strategy will also help the U.S. work more 

effectively with its allies and partners. Many of our allies and 

partners are highly concerned about lawfare and have devoted 

far more resources to using lawfare and developing a lawfare 

strategy. Israel, for example, has an office in its Ministry of 

Justice devoted to lawfare.431 The Office of the Legal Advisor at 

NATO’s SHAPE has personnel working on lawfare, which they 

call “Legal Operations,” and convenes an annual conference on 

the topic.432 More, better, and coordinated use of lawfare can 

enable mission success, improve coordination with our partners and allies, and help to save lives. 

B. Lawfare’s Shaming Function 

A lawfare strategy may be particularly useful against China 

because of China’s association of shame with illegality. China’s 

reaction to the Philippines/China arbitration exemplifies 

China’s shame at being accused of violating international law. 

As Professors Tom Ginsburg and Taisu Zhang have documented, Xi Jinping’s government has used law to centralize its 

power and bolster its own legitimacy.433 The use of law to 

buttress Chinese governmental power dates back to the 1840s 

and 1850s, when law began to be seen as key to China’s modernization.434 Many felt that China needed to adopt Western 

law and legal norms in order to modernize and have China 

compete in the global marketplace, maintain political stability, 

and gain geopolitical stature. Slow adoption of Western-style 

law and legal institutions proceeded, sans democracy. Gins431 The Counter-Terrorism and Foreign Litigation Division at the Israeli Ministry of Justice has personnel devoted to lawfare. See Yonah Jeremy Bob, Israel 

Gov’t Lawyers Help NATO Fight Lawfare, Receive Awards, JERUSALEM POST 

(Sept. 2, 2019, 12:53 AM), https://www.jpost.com/israel-news/israel-govt-lawyers-help-nato-fight-lawfare-receive-awards-600346 [https://perma.cc/HM73-

Z994]. 

432 See Charlie Dunlap, A Warfighter’s Perspective on “Lawfare” in an Era of 

Hybrid Threats and Strategic Competition, LAWFIRE (Mar. 13, 2020), https:// 

sites.duke.edu/lawfire/2020/03/13/a-warfighters-perspective-on-lawfare-inan-era-of-hybrid-threats-and-strategic-competition/ [https://perma.cc/9WNMJWEG]; Allied Command Operations Office of Legal Affairs, Allied Command Operations Legal Affairs Conference Held in Spain, SUPREME HEADQUARTERS ALLIED POWERS EUROPE (May 20, 2019), https://shape.nato.int/news-archive/2019/alliedcommand-operations-legal-affairs-conference-held-in-spain [https://perma.cc/ 

9YU9-2DHE]. 

433 Taisu Zhang & Tom Ginsburg, China’s Turn Toward Law, 59 VA J. INT’L L. 

279, 281–82 (2019). 

434 Id. at 356. 
2021] LAW AS A BATTLEFIELD 1159 

burg and Zhang argue that, with the exception of the Cultural 

Revolution years, China has pursued throughout its modern 

history a program of elite-driven legalization, including a gradual adoption of Western-style legalization. Although the Hu 

Jintao regime displayed some resistance to Western legalism, 

the Xi regime has adopted it enthusiastically since 2012, pushing domestic legal reforms.435 

Ginsburg and Zhang cite bottom-up pressures from the 

Chinese people as one primary reason for Xi’s enthusiasm for 

law.436 The Chinese population increasingly considers law and 

legality to be crucial to the government’s sociopolitical legitimacy and the people’s support for their government. Ginsburg 

and Zhang suggest several reasons why the Chinese people 

place a premium on legality. China’s people believe that law 

improves the predictability and reliability of its government’s 

actions, and that it may also be important for economic growth 

and personal enrichment.437 The Chinese people tend to be 

very afraid of government abuse, and believe in law as a way to 

check this. The population has also absorbed the government’s pro-legality rhetoric of approximately the last thirty 

years. As a result, the majority of Chinese citizens, and especially intellectual and political elites—although not the CCP 

itself—share a political commitment toward law, rule-oriented 

government, and adjudication.438 Toward the end of his rule, 

Hu noted that the rule of law was one of the fundamental 

demands of the Chinese people, and because of this “the Party 

and the state must operate strictly according to the law.”439 

If Ginsburg and Zhang are correct about the Chinese people’s association of the rule of domestic law with government 

legitimacy, it follows that the Chinese people would attach 

strong significance to China’s following international law. Adherence to international law would seem key for China’s legitimacy and success as a state, and by extension, the legitimacy 

of its government. Other scholars have also noted China’s turn 

to international law and international organizations to bolster 

its legitimacy, both domestically and in the international community.440 Whether or not China adheres to the norms of most 

435 Id. at 293–94. 

436 Id. at 348. 

437 Id. at 352–53. 

438 Id. at 354. 

439 Id. at 350 (internal quotation marks omitted). 

440 See XUE HANQIN, CHATHAM HOUSE, CHINA AND INTERNATIONAL LAW: 60 YEARS IN 

REVIEW 3 (2013) (“Since late 1970s, China has joined almost all major intergovernmental organizations and become party to over 300 multilateral conventions. 
1160 CORNELL LAW REVIEW [Vol. 106:1085 

international organizations, it has engaged more frequently 

with them in recent years. 

The international community’s “naming and shaming” of 

China as a violator of international law may also be significant 

to the Chinese population.441 In an influential article, Alan M. 

Wachman has noted that shaming China for its human rights 

abuses in the international community has not been effective, 

and might even result in backlash.442 However, Wachman 

does not consider the effect of “naming and shaming” in the 

international realm on the Chinese government’s legitimacy in 

the eyes of its people. Scholars have recognized the important 

role of shame and guilt in Asian culture, and Chinese culture in 

particular, which differs from the way that these emotions are 

experienced in Western culture.443 

Researchers have defined at least three sub-types of guilt 

and shame in Asian cultures. One type of shame, fan zui gan, 

is literally translated as the feeling of breaking a law; it is guilt 

associated with committing a crime, breaking a rule, or otherwise violating negative duties and externally-defined obligations to others.444 Another form of guilt concerns lawabidingness as a form of social responsibility; it is experienced 

as a response to one’s own violations of negative duties that 

originate from an external source.445 An associated concept is 

loss of face, another type of guilt and shame that researchers 

have identified.446 In traditional Confucian societies, one’s dignity and self-respect are tied to one’s ability to fill social obligations in front of others. This form of guilt and shame stems 

from not having lived up to standards or values. 

The importance of guilt and shame related to law-breaking 

in Chinese culture suggests that the nation’s perceived violations of law would be especially culturally significant. China’s 

shame at being found to violate UNCLOS in the Philippines/ 

China arbitration is evident in its attempts to denounce the 

arbitration as a violation of law itself, and in the massive domestic and international media campaigns that it launched at 

From a defiant challenger to an active participant, it is now taking part in the 

international law-making process in all fields.”). 

441 Alan M. Wachman, Does the Diplomacy of Shame Promote Human Rights in 

China?, 22 THIRD WORLD Q. 257, 257 (2001). 

442 Id. at 259. 

443 See Olwen Bedford & Kwang-Kuo Hwang, Guilt and Shame in Chinese 

Culture: A Cross-Cultural Framework from the Perspective of Morality and Identity, 

33 J. THEORY SOC. BEHAV. 127, 138–41 (2003). 444 Id. at 136. 

445 Id. at 139. 

446 Id. at 136. 
2021] LAW AS A BATTLEFIELD 1161 

the time the arbitration was filed, at the time of the decision on 

jurisdiction, and at the time the decision came out. The government appeared afraid of not living up to the international 

community’s standards or values, and thus had to frame its 

denunciation of the decision in terms of those same legal values. China’s strict warnings to Vietnam and other countries 

considering filing lawsuits over their South China Sea claims 

also suggest that China is scared of being accused of violating 

international law,447 and potentially losing in an international 

tribunal. 

V 

WHAT A U.S. LAWFARE STRATEGY SHOULD LOOK LIKE 

The U.S. must develop a whole-of-government lawfare 

strategy to effectively counter our adversaries and work with 

our partners and allies. It must reconceive lawfare as part of 

warfare, as our chief adversaries did long ago. Lawfare can be 

used strategically for offensive and defensive purposes. It can 

be used for legal preparation of the battlefield, and to anticipate 

and counter enemy actions within and outside of combat. It 

should be used in close connection with information operations 

to shape and control the narrative of conflict. It must be part of 

each civilian government agency’s strategy and programs, and 

it must be incorporated into planning at the strategic, operational, and tactical levels of war. A lawfare strategy must be 

supported by personnel with lawfare expertise who will provide 

training and education throughout the civilian interagency and 

the military and help us coordinate with our allies’ and partners’ lawfare efforts. 

A lawfare strategy would have three primary pillars: developing a lawfare strategy, providing lawfare expertise, and training and education. A fourth pillar would involve coordinating 

lawfare efforts with partners, allies, and trusted experts. A 

lawfare strategy must involve coordination and synchronization of lawfare efforts across civilian government agencies and 

the military. Agencies currently involved in lawfare include the 

Department of Defense, the Department of Justice, Department of State, USAID, Department of the Treasury, the Department of Commerce, and the U.S. Trade Representative. The 

National Security Staff and the intelligence community must 

also be involved in any lawfare coordination strategy. 

447 See supra notes 249–251 and accompanying text. 
1162 CORNELL LAW REVIEW [Vol. 106:1085 

A. Developing a Lawfare Strategy 

The U.S. should devise a lawfare strategy in coordination 

with the interagency and create mechanisms for implementing 

that strategy throughout the U.S. government. The strategy 

should be developed with regard to achieving particular objectives toward particular adversaries, and also toward general 

actions that will prepare the legal battlefield or shape the operational environment for future U.S. military actions, or to forestall future adverse actions by other states. 

To develop the strategy, the lawfare office should identify 

circumstances where the U.S. and its adversaries can create or 

are creating facts on the ground for their future advantage.448 

It should also identify areas vulnerable for lawfare, such as 

unresolved territorial disputes between Russia and China and 

their neighbors, and unresolved claims to Arctic EEZs. China’s 

dispute with Japan over claims in the East China Sea has 

simmered in recent years, but China is attempting to seed facts 

on the ground there as well.449 China may also seek to exploit 

“fault lines” between U.S. laws and the laws of its allies and 

partners, particularly during combat.450 With these vulnerabilities identified, the office can then make recommendations 

on how to proactively use lawfare against these adversaries or 

defend against potential lawfare by them. 

The U.S. should proactively identify opportunities for instrumental lawfare, or legal alternatives to potential kinetic 

conflicts with its adversaries. It should also identify opportunities for institutional lawfare, such as avenues for the U.S. to 

advance its foreign policy and military objectives through international law and institutions. Conversely, it should also monitor how our adversaries are using international law and 

institutions to advance their own aims and make recommendations on how to counter their efforts. For example, if China is 

using conditional aid through AIIB to advance its foreign policy 

goals, the U.S. might support the World Bank in offering more 

attractive terms, or warn target states of China’s intents in 

offering these loans. The U.S. should also identify opportunities for proxy lawfare by the U.S. and its allies and adversaries. 

448 Trachtman, supra note 63, at 281. 

449 See generally CONG. RESEARCH SERV., supra note 11, at 75–76 (examining 

China’s development of defensive and offensive capabilities in the East China 

Sea); see also Cheng, supra note 36 (“China’s idiosyncratic interpretations of the 

U.N. Convention on the Law of the Sea (UNCLOS), whether it is regarding its 

claims to the South China Sea or to the Arctic, should be seen as strategic-level 

preparation for legal warfare.”). 

450 See Cheng, supra note 36 (internal quotation marks omitted). 
2021] LAW AS A BATTLEFIELD 1163 

The U.S. might, for example, commence legal actions against 

Chinese and Russian companies besides Huawei and Kapersky. In the past, non-state actors or their proxies have used 

NGOs to advance legal claims against their adversaries.451 

The U.S. should also evaluate the importance of ratifying 

international treaties, developing new international legal instruments, or participating in international courts to U.S. 

strategy or military efforts. For example, experts have made 

strong arguments that ratification of UNCLOS would positively 

or negatively affect U.S. foreign policy.452 When the U.S. declines to ratify a treaty but says that it will follow customary 

international law, as it does with UNCLOS, the U.S. could work 

to delineate and publicize the U.S.’ position so as to bolster 

relevant legal norms. If the U.S. can better articulate what 

areas of customary international law it follows and why, it can 

help shape the international narrative in its favor, influence 

legal strategies by other states, and delegitimize its adversaries’ 

positions. 

The U.S. should also identify opportunities for reforms of 

U.S. laws that restrict the U.S.’ ability to combat lawfare by our 

adversaries, or hamper our ability to proactively fight lawfare. 

For example, Jill Goldenziel and Manal Cheema have documented how the First Amendment and Privacy Act have hindered the U.S.’ efforts to combat Russian disinformation 

campaigns since its electoral interference in the 2016 presidential election.453 Goldenziel and Cheema proposed changes to 

legislation, doctrine, and policy to enable civilian agencies to 

better combat disinformation while protecting the civil liberties 

of U.S. persons.454 The U.S. could identify similar opportunities for foreign adversaries to exploit U.S. law and situations in 

which law hampers U.S. efforts, and propose and advocate for 

policy and legislative fixes. Additionally, the U.S. could work 

with relevant agencies to advocate for the passage of any statu451 See generally KITTRIE, supra note 4, at 239–81 (detailing NGO lawfare 

against Israel on behalf of Palestinian causes). 

452 For an argument supporting ratification of UNCLOS, see Seapower and 

Projection Forces in the South China Sea: Hearing Before the Seapower & Projection 

Forces Subcomm., 114th Cong. 4–6, 49–69 (2018) (statement of James Kraska, 

Professor, Stockton Center for the Study of International Law, U.S. Naval War 

College). For an argument against ratification of UNCLOS, see Cheng, supra note 

36. For a balanced discussion, see CONG. RESEARCH SERV., supra note 11, at 

24–26. 

453 See Jill Goldenziel & Manal Cheema, The New Fighting Words?: How U.S. 

Law Hampers the Fight Against Information Warfare, 22 U. PA. J. CONST. L. 81, 

113–20 (2019). 

454 See id. at 120–69. 
1164 CORNELL LAW REVIEW [Vol. 106:1085 

tory authorities necessary to enable their lawfare efforts. New 

authorities may be necessary for the military to employ lawfare 

and to collaborate with intelligence agencies to do so. 

The U.S. must also define an information lawfare strategy. 

It can identify opportunities for our adversaries to spin U.S. 

actions as illegal, and work to counter this. For example, if 

lawfare experts within the U.S. government had existed before 

the recent strike on General Soleimani, the military could have 

easily anticipated that commentators—and Iran itself—would 

spin the U.S.’ actions as illegal.455 Accordingly, the U.S. government could have gotten ahead of the narrative and provided 

substantiation that the strike was legal from the moment the 

strike became public. Judge Advocates trained in lawfare may 

have cautioned commanders against making the strike without 

clear evidence and strong argument for the legality of the 

strike, given the potential for retaliation using information 

lawfare.456 Before potential combat, the U.S. could engage in 

information lawfare by publicizing adversary violations of international law, thus framing a narrative to support the legality of 

its future military actions. 

B. Providing Lawfare Expertise 

The U.S. lawfare strategy must also involve building and 

providing subject matter expertise on lawfare. The most effective way to coordinate lawfare strategy and ensure the presence 

of U.S. government lawfare experts would be to create a central 

lawfare office. The office would be tasked with developing and 

coordinating U.S. lawfare strategy. 

455 See, e.g., Oona A. Hathaway, The Soleimani Strike Defied the U.S. Constitution, ATLANTIC (Jan. 4, 2020), https://www.theatlantic.com/ideas/archive/2020/ 

01/soleimani-strike-law/604417/ [https://perma.cc/A4V4-SHYR] (examining 

the importance of Congressional action to ensure that the President does not set a 

pattern of pushing the boundaries of unilateral authority); Rebecca Ingber, If 

There Was No ‘Imminent’ Attack from Iran, Killing Soleimani Was Illegal, WASH. 

POST (Jan. 15, 2020), https://www.washingtonpost.com/outlook/2020/01/15/ 

if-there-was-no-imminent-attack-iran-killing-soleimani-was-illegal/ [https:// 

perma.cc/DU86-CX5W] (discussing the importance of imminence and necessity 

when classifying the legality of a presidential “strike” order); Rebecca Ingber & 

Adil Ahmad Haque, Iran’s Shifting Views on Self-Defense and ‘Intraterritorial’ 

Force, JUST SECURITY (July 3, 2019), https://www.justsecurity.org/64800/iransshifting-views-on-self-defense-and-intraterritorial-force/ [https://perma.cc/ 

8ZM2-Q97N] (analyzing Iran’s shift in legal understanding of international law 

after striking down a U.S. drone in Iranian airspace). For an example of how the 

U.S. could have gotten ahead of the narrative, see Charlie Dunlap, The Killing of 

General Soleimani Was Lawful Self-Defense, Not “Assassination”, LAWFIRE (Jan. 3, 

2020), https://sites.duke.edu/lawfire/2020/01/03/ [https://perma.cc/S5VFHJDM]. 

456 The author takes no position on the legality of the strike itself. 
2021] LAW AS A BATTLEFIELD 1165 

Part of the reason that the U.S. government is behind in 

developing a lawfare strategy is that no single office in the U.S. 

government “owns” lawfare. Few individuals within the U.S. 

government or military are trained and educated in lawfare. 

The staff of the lawfare office, then, would be the primary subject matter experts (SMEs) on lawfare within the U.S. 

government. 

Where this lawfare office would be located will ultimately 

be determined by politics and the priorities of any particular 

presidential administration. Ideally, the office would be part of 

the National Security Staff, or an interagency effort, to avoid 

bureaucratic wrangling over the office’s function and assure 

interagency coordination. Short of that, the Departments of 

Justice, Defense, or State are logical places for a lawfare office. 

The DoJ, as noted above,457 already has an office for overseas 

prosecutorial development, as well as a coordinator for rule of 

law efforts in Iraq. It thus has some nascent expertise on subjects related to lawfare on which it can build. The DoJ, however, is not typically equipped to deal with large strategic 

questions of foreign policy like the DoD and DoS. The DoD, as 

the agency manned, trained, and equipped to fight our nation’s 

foreign adversaries, is well-poised to coordinate whole-of-government approaches to identifying and stopping opportunities 

for adversary lawfare, including making plans for military actions. The DoS, as the agency in charge of leading U.S. foreign 

policy,458 is best positioned to integrate lawfare into foreign 

policy strategy. Given the history of the DoD and DoS’s turf 

wars and failure to coordinate,459 however, an interagency effort may be more likely to achieve the synchronization of efforts 

that is crucial for a lawfare strategy to succeed. Regardless of 

where the office is located, it must work closely with lawfare 

liaisons from all of the government agencies listed above, and 

possibly others. 

Lawfare experts within the U.S. government, whether from 

a lawfare office or elsewhere, would be tasked with working 

with the interagency to support, build, and improve their 

lawfare efforts. For example, lawfare experts could provide tac457 See supra note 430. 

458 Department Organization, U.S. DEP’T OF STATE, https://2009-

2017.state.gov/r/pa/ei/rls/dos/436.htm [https://perma.cc/7KRZ-RG3W] (last 

visited Mar. 12, 2021). 

459 See, e.g., Josh Rogin, The Real State-Defense Turf War Begins, FOREIGN 

POL’Y (Nov. 3, 2009, 10:07 PM) https://foreignpolicy.com/2009/11/03/the-realstate-defense-turf-war-begins/ [https://perma.cc/A9UR-5BDW] (discussing one 

example of interagency conflict between the DoD and DoS over available funds). 
1166 CORNELL LAW REVIEW [Vol. 106:1085 

tical support for military activities. They could conduct baseline feasibility studies for future lawfare and rule-of-lawbuilding initiatives, rectifying a key mistake made with ROLFFA in Afghanistan. They could analyze compliance with international legal rulings and the soft law of international institutions 

to enable the military and interagency to use information 

lawfare to bolster U.S. efforts and “name and shame” violators 

of international law. 

Lawfare experts could also work with the State Department 

to strengthen the norms of international law that China, Russia, and its other adversaries are trying to erode.460 It can 

create publications and send experts to advance the interpretations of international law favored by the U.S. It could also 

advocate for our partners and allies to resolve disputes in legal 

fora whenever possible to bolster their use. 

Such a strategy of bolstering particular legal norms may be 

particularly effective against China and Russia. As noted 

above, China and Russia use minority interpretations of UNCLOS to further their territorial claims. The U.S. can bolster 

the more commonly-accepted interpretations of UNCLOS’s 

straight baseline and other relevant provisions to influence 

state opinions and eventual court rulings in its favor. The U.S. 

can also identify provisions of UNCLOS and other laws that are 

ripe for exploitation in adversary lawfare efforts. 

C. Lawfare Training and Education 

A lawfare strategy must involve training and education at 

all levels of the military and civilian interagency. Building 

knowledge and expertise about lawfare and the U.S. lawfare 

strategy throughout civilian agencies and the military will be 

critical to the lawfare strategy’s success. 

1. Civilian Training and Education on Lawfare 

In the civilian interagency, lawfare training and education 

must focus on educating personnel about existing lawfare efforts and how to integrate lawfare holistically into existing programs and projects. Some existing programs, like the DoJ’s 

rule-of-law-related programs, may serve a lawfare function. 

Personnel in those programs must be trained in lawfare to 

maximize the full strategic benefit of their efforts. Training and 

460 See AUREL SARI, HYBRID COE, BLURRED LINES: HYBRID THREATS AND THE POLITICS OF INTERNATIONAL LAW 5 (2018) (arguing that Russia and other states are instrumentalizing international law for their strategic objectives and that some of the 

methods they employ threaten the rule of law). 
2021] LAW AS A BATTLEFIELD 1167 

education will be particularly important to synchronize civilian 

and military lawfare efforts, especially in a situation of armed 

conflict. 

As just one example of the importance of training and educating civilian personnel about lawfare, the support of the civilian and military intelligence communities will be critical to the 

success of the lawfare strategy. Civilian and military intelligence personnel must be trained in legal intelligence, including 

identification of when our adversaries are using lawfare, such 

as by creating facts on the ground. The intelligence community 

can also help identify and implement optimal strategies for 

countering it. For example, tracking Russian attempts to create legislation to justify foreign intervention, triangulated with 

identification of Russia’s attempts to create facts on the 

ground, will enable the U.S. and its allies to better predict 

Russian political and military actions.461 Russia’s legislative 

efforts take time to prepare and are generally done publicly, 

because of their domestic information lawfare function. They 

are thus easily observable by U.S. intelligence. Tracking Russian lawfare efforts will better enable the U.S. and its allies to 

take action against Russian lawfare and related military actions, perhaps by getting ahead of the conflict narrative, or by 

filing lawsuits of their own. 

Like Russia, China is engaging in legal efforts that the U.S. 

should monitor to determine whether they will later be used to 

support military action. China has passed laws that eventually 

could be used to support potential military action against Taiwan.462 In March 2005, the Tenth National People’s Congress 

adopted the Anti-Secession Law. This law, by implication, says 

that Taiwan is part of China and thus subject to its laws. Passage of this law alone does not qualify as lawfare. However, 

this law could easily be used to justify Chinese military actions 

against Taiwan if it should move for independence, just as 

Russia has used similar legislation to justify foreign aggression. The law could be used to counter claims that Chinese 

military action would violate international law. The intelligence 

community, or legal intelligence professionals, should monitor 

China’s legislation involving Taiwan and related military actions to anticipate if, when, and how China might act next 

against Taiwan. 

461 See Voyger, supra note 342, at 40–41. 

462 Kim R. Holmes, Lawfare, Chinese Style, HERITAGE FOUND. (May 2, 2012), 

https://www.heritage.org/asia/commentary/lawfare-chinese-style [https:// 

perma.cc/WS2U-JPSY]. 
1168 CORNELL LAW REVIEW [Vol. 106:1085 

2. Military Training and Education on Lawfare 

A lawfare strategy must prioritize training and education 

about strategic, operational, and tactical lawfare at all levels of 

the military. Given the importance of identifying our adversaries’ use of lawfare, especially during legal preparation of the 

battlefield and combat itself, it is critical that lawfare training 

and education not be limited to military lawyers. At a minimum, military commanders, their executive and operations officers, and intelligence officers should also be trained to 

identify opportunities for lawfare, and to identify when our adversaries have the opportunity to use it. For example, our adversaries may seek to raise doubts about which nation started 

a conflict through legal arguments.463 Commanders, judge advocates, and service members should be trained to carefully 

observe and record facts and work to seize the initiative on the 

information narrative to avoid false accusations. 

Lawfare experts must support military planning at the 

strategic, operational, and tactical levels. Experts can help 

proactively identify opportunities to use lawfare at these levels, 

whether through the U.S. or its partners and allies; and how 

our adversaries might use lawfare against us during combat. 

To train and educate service members, the military might 

develop a lawfare doctrine or joint publication in conjunction 

with relevant units, such as the Army’s Training and Doctrine 

Command. In the military, training and education on theory, 

concepts, and doctrine often crystallizes around the study of a 

central text or publication that serves to state a service’s or the 

Joint Forces’ position on a particular topic.464 These publications are then taught throughout professional military education,465 and the ideas and terminology within them seep into 

the consciousness of service members. If such a publication on 

463 See Cheng, supra note 36. 

464 See, e.g., Joint Doctrine Publications, JOINT CHIEFS OF STAFF, https:// 

www.jcs.mil/Doctrine/Joint-Doctine-Pubs/#:~:text=joint%20Publication 

%201%2C%20Doctrine%20for,Forces%20of%20the%20United%20States.& 

text=also%20includes%20publications%20used%20in%20development 

%20of%20Joint%20Doctrine [https://perma.cc/KH76-J8YD] (last visited 

Dec. 24, 2020) (“Joint doctrine presents fundamental principles that guide the 

employment of US military forces in coordinated and integrated action toward a 

common objective. It promotes a common perspective from which to plan, train, 

and conduct military operations.”). 

465 CHAIRMAN OF THE JOINT CHIEFS OF STAFF, OFFICER PROFESSIONAL MILITARY EDUCATION POLICY A–1 (2020), available at https://www.jcs.mil/Portals/36/Documents/Doctrine/education/cjcsi_1800_01f.pdf?ver=2020-05-15-102430-580 

[https://perma.cc/Y25A-KT5P] (noting the legal requirement for Joint Doctrine to 

be taught in Professional Military Education for the Joint Forces). 
2021] LAW AS A BATTLEFIELD 1169 

lawfare is designed in collaboration with the interagency, it 

could be used for educational purposes for civilian agency personnel as well. 

Military commanders and judge advocates must receive education and training in appropriate operational tactics to combat lawfare. For example, knowing that Hamas would use 

human shields against it in 2014, Israel launched massive 

counter-efforts to seize the narrative.466 Israel issued precautions and warnings to civilians in Gaza at levels unprecedented 

in modern warfare. The Israeli Defense Forces (IDF) made 

thousands of phone calls and leaflet drops and used the media 

to reach Gaza residents in an effort to avoid casualties.467 It 

also called influential citizens and asked them to evacuate civilians. Israel used these tactics at great risk, since it revealed its 

plans to its enemy. Israel likely wagered that protecting civilians and being able to bolster its own legitimacy and counter 

Hamas’s narrative with evidence that they had taken every precaution to avoid civilian casualties was worth these risks. 

Lawfare experts can prepare commanders and judge advocates 

for such battlefield exploitation lawfare risks and help plan to 

combat them. 

Military commanders and judge advocates must be trained 

to spot opportunities for potential lawfare by adversaries and 

make decisions on how to counter them quickly. It will be 

critical for these service members to train using scenarios that 

require quick formulation of moral and legal responses that 

have high political consequences, and that may be reviewed by 

a future court or international organization.468 

During combat, the U.S. must continue to emphasize the 

legality of U.S. actions as part of its lawfare efforts. To do so, 

junior and senior service members, officers and enlisted, must 

be educated on the legality of their mission and how to interface with the media on the topic. Emphasizing the legality of 

U.S. actions can engender public support for military actions 

and also bolster our own service members’ will to fight. Conversely, portrayal of our adversaries’ actions as illegal can help 

break the will of their forces if they do not believe they are 

fighting for a just cause. 

Such use of information lawfare can be a powerful tool in 

affecting the will to fight—the importance of which cannot be 

overstated. As discussed above, China has identified the will to 

466 Mu[ ̃n]oz Mosquera & Bachmann, supra note 75, at 76. 

467 Id. at 77. 

468 Id. at 79. 
1170 CORNELL LAW REVIEW [Vol. 106:1085 

fight as crucial to military victory from the time of Sun Tzu 

through its most recent publications on the Three Warfares.469 

The DoD has gone so far as to name “honor” as a principle of 

the law of war, in addition to the traditional international humanitarian law principles of necessity, proportionality, distinction, and humanity.470 The DoD has done so because it 

recognizes that service members’ belief that their actions are 

legal is integral to their being able to serve with honor and 

maintain the will to fight. Compliance with international law is 

what separates the actions of service members in combat from 

murder and other criminal actions. For service members to 

believe in what they are tasked to do in combat, they must 

believe that their actions are legal and just. 

D. Coordination with Allies, Partners, and Experts 

The U.S. must coordinate with our allies’ and partners’ 

lawfare efforts. The U.S. should monitor these efforts and identify opportunities to support our allies’ and partners’ lawfare, 

or to engage in proxy lawfare through them. The U.S. should 

also identify our allies’ and partners’ lawfare efforts that work 

against its interests, such as competing claims in the Arctic, 

and seek to resolve these in a way that will not disturb its 

lawfare strategy. For example, the State Department can pressure Canada and other allies to change their interpretations of 

UNCLOS, if those interpretations support the lawfare efforts of 

U.S. adversaries. 

The U.S. should also cultivate a network of trusted experts 

who can assist its lawfare efforts. Academics and think tanks 

in the U.S. and throughout the world are already studying 

lawfare. Mark Voyger has proposed organizing these into a 

“Lawfare Defense Network” that coordinates with a proposed 

NATO Lawfare Centre of Excellence.471 The U.S.’ network 

should be concerned with both offensive and defensive lawfare. 

Independent experts in partner and allied countries, who are 

experts in foreign languages and legal systems, will be critical 

to track lawfare efforts and update a U.S. lawfare strategy 

accordingly. 

469 See supra note 24 and accompanying text. 

470 OFFICE OF GEN. COUNSEL, DEP’T OF DEF., DEPARTMENT OF DEFENSE LAW OF WAR 

MANUAL vii (June 2005, updated Dec. 2016) (listing honor under principles in the 

table of contents, along with military necessity, humanity, proportionality, and 

distinction). 

471 Voyger, supra note 342, at 42. 
2021] LAW AS A BATTLEFIELD 1171 

CONCLUSION 

Like the maritime and cyber realms, law has increasingly 

become a contested domain—much like a battlefield.472 U.S. 

adversaries like China and Russia have highly-developed 

lawfare strategies. China goes as far as to define lawfare as one 

of the pillars underlying its military strategy. Law serves to 

substantiate actions taken under Russia’s current military 

strategy, the Gerasimov Doctrine. The U.S. has used lawfare in 

only a haphazard manner and has not developed a lawfare 

strategy or even a point of contact within the U.S. government 

to focus on lawfare. Because of this, the U.S. has lost opportunities to use lawfare against our adversaries, and lost control of 

narratives critical to military success. 

To prevail against adversaries, and to better collaborate 

with our partners and allies, the U.S. must develop a lawfare 

strategy. A lawfare strategy would unify and improve whole-ofgovernment efforts to combat our adversaries using law. If the 

goal of war is to achieve a better peace, lawfare may help us 

reach that aim faster. The increased use of lawfare, despite its 

concerning implications, is a positive development in the history of war. States will never beat their swords into ploughshares and begin to use gavels instead. However, increased 

use of lawfare can conserve military resources, prevent destruction of civilian property, and save civilian and service 

members’ lives. Law is a non-lethal but potent weapon that 

leaves fewer bodies on the battlefield. 

472 See Sari, supra note 460, at 5. 
1172 CORNELL LAW REVIEW [Vol. 106:1085