International law is increasingly a contested arena of power, utilized by nations to pursue strategic interests, according to recent analysis. While often framed as “lawfare”—the tactical weaponization of law—a broader concept of “legal statecraft” is emerging as a critical tool for modern state power and legitimacy.
Lawfare and the Rise of Legal Statecraft
Examples of this trend include China’s selective use of international maritime law in the South China Sea, Russia’s justifications for aggression in Ukraine, and Ukraine’s own use of legal mechanisms to counter Russian economic advantages. Even the United States has employed legal arguments to defend its counterterrorism policies.
These instances demonstrate the strategic advantages of lawfare, defined as the use of law in adversarial contexts. However, experts argue that lawfare is merely one dimension of a larger dynamic: legal statecraft. This encompasses the deliberate integration of legal norms, institutions, and processes into a country’s grand strategy.
Legal statecraft differs from lawfare by extending beyond purely coercive applications. While lawfare assumes a state of conflict, legal statecraft is applicable to peacetime efforts addressing global challenges like pandemics and climate change.
Lawfare’s Origins and Definitions
The term “lawfare” was popularized in 2001 by Charles Dunlap Jr. as “the use of law as a weapon of war.” Orde Kittrie further developed this concept, illustrating how states and non-state actors exploit legal regimes to constrain adversaries. Scholars have observed how adversaries have used the Geneva Conventions to restrict U.S. counterterrorism operations.
The application of U.S. lawfare is often tactical and episodic, lacking the broader strategic vision found in other formulations. However, some scholars suggest the concept has broadened to encompass any use of legal norms for political gain.
Legal Statecraft as an Alternative
Legal statecraft, in contrast, is the use of law as an instrument of national strategy, combining realist power dynamics with liberal and constructivist insights about institutions and norms. Scholarship on “legalization” and “transnational legal processes” highlights how law generates compliance through interaction and internalization.
Like economic and diplomatic statecraft, legal statecraft shapes incentives through rules and institutions, relying on negotiation and persuasion. It also intersects with military statecraft by constraining the use of force and generating international legitimacy.
Applying Legal Statecraft: The South China Sea
The 2016 Permanent Court of Arbitration ruling against China’s South China Sea claims exemplifies both lawfare and legal statecraft. While China dismissed the ruling, it simultaneously pursued lawfare by embedding its preferences in regional codes of conduct and promoting alternative legal norms.
The United States and its allies have responded through legal statecraft, building on the 2016 ruling to erode China’s regional legitimacy. Several ASEAN members sided with the ruling, creating momentum for Southeast Asian states to clarify their claims in accordance with international law. Vietnam, for example, asserted claims over islands and began constructing artificial islands to strengthen its position.
Despite not being a signatory to UNCLOS, the United States has reinforced its regional partners’ positions through freedom of navigation operations and capacity building, supporting the application of international law and the governance of regional organizations. The U.S. has also worked with allies like Great Britain and France to reinforce maritime norms.
Implications for U.S. Strategy
Experts argue that the United States should embrace legal statecraft as a core component of its grand strategy, recognizing its utility in addressing a variety of strategic challenges. While skepticism exists among realist international relations scholars, law can be an additive vehicle for power by shaping agendas and coalescing allies.
However, a commitment to legal statecraft must acknowledge its limits. Overreliance on legal tools may constrain flexibility, and domestic political polarization could undermine its effectiveness. Despite these challenges, legal statecraft offers a proactive approach to shaping the international legal landscape and advancing American interests.
Moving beyond episodic lawfare toward a doctrine of legal statecraft—using law proactively and adaptively—could allow the United States to reinforce alliances, address emergent threats, and sustain a rules-based order.
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