Lawfare Is Not Enough: The U.S. Needs Legal Statecraft
International law is no longer just the backdrop to contemporary global politics—it is an arena where power is contested and an instrument through which America’s strategic partners, competitors, and adversaries pursue their national interests. China, for example, has used international maritime law selectively in the South China Sea to assert its sovereignty and delegitimate American freedom of navigation operations. Russia has likewise cloaked its aggression in Ukraine with appeals to sovereignty, self-determination, and self-defense. Conversely, Ukraine has responded by using lawfare to undermine Russia’s economic advantages—even before the 2022 invasion, the Ukraine government used investment law against Russia’s government and industry. Even the United States has both defended and justified its counterterrorism policies with carefully crafted legal arguments aimed at terrorist organizations and states that sponsor them.
These examples illustrate a larger point: what many call “lawfare”—a prevailing term in the tactical weaponization of law in adversarial contexts—can be strategically advantageous. They highlight the term’s use of law as an instrument of strategic competition. Yet, lawfare is part of a greater dynamic. The term “lawfare” narrowly implies only the tactical application of law in adversarial or coercive contexts. To understand how law shapes contemporary world politics, it’s important to recognize and define “legal statecraft”: the strategic use of law, legal institutions, and legal norms as a core instrument of state power and legitimacy. Legal statecraft incorporates lawfare but points to something broader: the deliberate integration of legal norms, institutions, and processes as instruments in a country’s grand strategy.
Lawfare is in reality therefore only one dimension of legal statecraft—its narrowly coercive dimension. But legal statecraft is in fact Janus-faced. It has a critical second constitutive component that is imperative for building consensus, cooperation, and even compliance. More importantly, lawfare assumes that society is in a permanent state of conflict (or war), while legal statecraft has its applications for varied peacetime efforts, notably those that address existential collective action and global commons problems such as pandemics and climate change.
Our recent, as yet unpublished, research on American grand strategy distinguishes between lawfare and legal statecraft. What follows is a comprehensive summary of the lineages of both terms and the traditions of statecraft and grand strategy within them. If history serves as a guide, the United States must embrace legal statecraft as a grand strategic tool.
Lawfare’s Origins and Definitions
In 2001, Charles Dunlap Jr. first popularized the term “lawfare” succinctly as “the use of law as a weapon of war.” Later, Orde Kittrie’s “Lawfare: Law as a Weapon of War” built on this precept, demonstrating how states and non-state actors exploit legal regimes to constrain adversaries and delegitimize their behavior. Scholars have employed the concept broadly, including understanding how America’s adversaries have used the Geneva Conventions to restrict or restrain U.S. counterterrorism operations and the use of mines and cluster munitions. Building on Dunlop’s initial definition, Eric Chang suggested that work on lawfare has been broadened so far as to be almost unrecognizable, “in the broad sense of using legal norms to try to achieve or consolidate political gains, or using legal norms and processes to try to contest political realities.” In application, U.S. lawfare, is thus tactical, episodic, and often zero-sum. But it is rarely strategic in the ways used by latter formulations, defined in terms of a broader vision of national goals.
Legal Statecraft as an Alternative
Legal statecraft, by contrast, is the use of law as an instrument of national strategy. It extends the classical realist emphasis on power, while incorporating liberal and constructivist insights about institutions and norms. Scholarship on “legalization” in international relations has highlighted how obligation, precision, and delegation shape state behavior. Scholarship on transnational legal processes explains how law generates compliance through interaction and internalization.
Legal statecraft combines these elements. As a result, it should be understood alongside the other instruments of statecraft that political scientists and historians have long analyzed. Economic statecraft deploys financial tools to induce desired behavior. Legal statecraft comparably shapes incentives through rules and institutions rather than through direct coercion, financial or otherwise. Like diplomatic statecraft, it relies on negotiation, arbitration, legal proceedings, and, ultimately, persuasion—although law embeds commitments in more enduring forms. Legal statecraft intersects with military statecraft by constraining the use of force and by generating international legitimacy for alliances and coalitions. And in today’s environment, legal statecraft converges with informational and technological statecraft, where states contest not only physical territory but territory in the information and cyber domains as well. In the context of this broader tradition, understand that legal statecraft is not an outlier but, rather, an increasingly indispensable instrument of grand strategy—one that American policymakers should not ignore.
Applying Legal Statecraft in Practice: A Critical Case of the South China Sea
In 2016, the Permanent Court of Arbitration ruled that China’s expansive South China Sea claims violated international law. Beijing nevertheless dismissed the ruling and persisted in claiming maritime rights that diverge from those set out in the UN Convention on the Law of the Sea (UNCLOS). Beijing treated low-tide elevations as islands and invoked Article 298 to exclude compulsory arbitration while still claiming UNCLOS protections elsewhere. By treating low-tide elevations as islands, China effectively assigns them maritime zones (such as territorial seas or exclusive economic zones) that UNCLOS does not allow for—in effect, justifying expansive maritime claims.
The 2016 tribunal ruling against China’s maritime claims represents a classic case of lawfare. While rejecting the binding award, China pursued lawfare by embedding its preferences in regional codes of conduct, advancing the “Three Warfares” doctrine (legal, media, psychological), and promoting alternative legal norms. As a practical matter, China has sought “special treatment” by military “area-denial and surveillance-denial capabilities which its campaign of island-building and assertions of sovereignty within the nine dash line” has invoked to substantiate China’s claims.
Meanwhile, the United States and its allies have judiciously eroded China’s regional legitimacy through legal statecraft. Building on the initial 2016 Permanent Court of Arbitration finding in favor of the Philippines, the majority of the Association of Southeast Asian Nations (ASEAN) members uncharacteristically sided with the ruling, signaling a rare moment of regional consensus against Beijing’s maritime assertions. This shift created political momentum that emboldened several Southeast Asian states to clarify or expand their own claims in accordance with international law. Vietnam, Thailand, Malaysia, Indonesia, and the Philippines again all made claims over additional maritime zones or features, seeking to reinforce their positions within the UNCLOS framework. Vietnam, for example, asserted claims over the Paracel and Spratly Islands and even began constructing artificial islands of their own to strengthen its administrative and logistical presence—mirroring China’s own tactics, but grounding its actions in a more widely accepted legal argument. Although the United States is shorn of its lawfare options due to its failure to ratify UNCLOS, it has nonetheless persisted in legal statecraft by articulating public legal positions, issuing diplomatic notes, and coordinating with regional partners to reinforce the arbitral tribunal’s findings and delegitimize excessive maritime claims. These efforts aim to generate a broader diplomatic consensus to constrain China’s regional ambitions and discourage further coercive behavior.
As China expands its maritime sovereignty claims in the South China Sea, the United States has reinforced its regional partners and allies position. By conducting freedom of navigation operations through waters and airspace claimed by China and enhancing capacity building among several regional partners and allies, the United States has supported the application of international law and the governance of regional organizations. Local actors have taken the lead in this process, supported by American resources, rather than American unilateral actions or assertions of leadership in employing its own forms of coercive lawfare. Because it is the local actors that are directly involved, the U.S. maintains its freedom of navigation within the guidelines of UNCLOS, avoids mission creep such as more direct support for regional claims, and builds cooperation with other external stakeholders in the region, such as Great Britain and France. By bolstering the rule of law through the reinforcement of maritime norms in the face of Chinese encroachment, the U.S. and its local partners encourage other less-powerful states to cling to rules to protect their rights and to maintain regional and international norms. In short, U.S. strategy toward China’s claims and aggression is indeed legal statecraft that has proved effective in building a coordinated opposition in support of international law.
Implications for U.S. Strategy
In our 2018 book “The End of Grand Strategy,” we argued that the United States has not historically pursued a single, enduring grand strategy across domains. In reality, successive administrations have favored a pragmatic, calibrated mix of strategies, ranging across a spectrum from primacy to liberal deep engagement, sponsorship, restraint, and isolationism that are applied simultaneously according to context. U.S. strategies vary by type, over time, and across different regions depending on the specific objectives of policymakers and officials.
In “Across Type, Time, and Space,” we extended this argument by showing how states of varying capacities combine the use of multiple often-hybrid instruments in different ways, including the use of law. For example, to achieve national objectives, many states combine commonly recognized economic instruments (such as sanctions and foreign aid) and diplomatic statecraft (bilateral or multilateral negotiations) with military means (arms sales and military exercises). In our ongoing work, however, we depart from this traditional approach to demonstrate the utility of legal statecraft in addressing a variety of American strategic challenges, not as a panacea, but as a modular, adaptive tool that can be deployed as an integrated approach for achieving national security goals.
Skepticism about the utility of international law (including lawfare and the nascent ideas associated with legal statecraft) and its place in American foreign and security policies is prevalent among realist international relations scholars. Their critiques serve as a reminder that legal statecraft is neither a substitute for more direct forms of power nor even the most important instrument of statecraft. But even critics would be hard pressed to deny that law can be an additive vehicle for power by shaping agendas and coalescing allies and partners, as well as attracting nominally disinterested third powers.
At a time when scholarship overwhelmingly focuses on forms of military and economic coercion, legal statecraft should nonetheless be viewed as an essential component in a flexible grand-strategy toolkit. It is one that is particularly useful as an instrument in domains where military force is ill-suited—global health policy, transnational environmental challenges, coping with migrant flows, and maintaining the maritime order.
Like all instruments of grand strategy, legal statecraft inevitably has its limits. An overcommitment to legal tools and processes may constrain flexibility, providing ammunition for an array of domestic and international skeptics. Jack Goldsmith and Eric Posner argue that international law is largely powerless when attempting to force states to act against their vital national security or economic interests, especially when those interests are backed by strong domestic constituencies. Furthermore, political polarization and domestic laws could undermine the ability of the United States to pursue legal statecraft, just as it has occasionally limited the deployment of lawfare. During the George W. Bush administration, the sustained legal challenges against U.S. detention and trial policies at Guantánamo—employing international law, habeas corpus, and human rights norms—exemplify lawfare: using legal mechanisms and international-law arguments to constrain or influence U.S. military and security actions post-9/11.
Indeed, the refusal of the Senate to ratify international laws and protocols regarding the rights of children, women, and people with disabilities or to sign on to the International Criminal Court or the Global Landmines Treaty, all on the grounds that doing so infringes on American sovereignty, remains a reminder of America’s hesitation to sign on to any international initiatives started by countries other than the United States. That said, a well-crafted strategy employing legal statecraft would strengthen American positions internationally in key areas of both traditional and emergent concerns.
From Lawfare to Legal Statecraft
Lawfare has its own limits, entailing the tactical use of law in conflicts and war. American leaders often reached for this tool during the global “war on terror” in several hybrid conflicts and gray-zone operations—including Israel’s campaign against Hamas and the Taliban’s resistance to the United States and NATO in Afghanistan. Currently, however, lawfare alone is insufficient in a world where rules, norms, and institutions are themselves contested power arenas, where the United States’s ability to shape international legal regimes has been diminished, and where the current administration demonstrates a continued antipathy to any perceived incursion of sovereignty. Moreover, American policymakers cannot afford to ignore the rubric of lawfare as it becomes weaponized by adversaries.
But if Washington continues to think only in terms of lawfare, it risks being reactive and adversarial even in situations where it potentially has enormous sway, perpetually attacking and defending itself in international legal arenas, while undermining American credibility when it is accused of transgressions.
Legal statecraft, by contrast, recognizes that law is not merely a coercive tool, but a relatively nonthreatening generator of influence. It can be used as a tool of American strategy to both repel adversarial initiatives and address collective action problems. Doing so may generate support from other nations that are reluctant to employ lawfare or engage in outright coercion.
Treating law only as a weapon thus misjudges its deeper constitutive role in shaping the dynamics of the global system. Legal statecraft fits with a series of long-term campaigns to codify international law, embed norms in the interstate system, create and maintain institutions, and assist in the construction of American legitimacy that endures beyond any single conflict. For the United States, the question is not simply how to deploy law against its foes or how to parry adversaries’ legal maneuvers. Rather, it is whether the United States can commit to a proactive doctrine of legal statecraft: one that uses law to reinforce alliances, address emergent threats, reconstitute elements of global governance, and sustain a rules-based order already under severe duress. In an era of contested power, the choice is whether to keep fighting case-by-case, ad hoc, legal skirmishes or to shape the legal terrain itself as a tool of American influence.
The United States should thus move beyond episodic lawfare and toward an explicit doctrine of legal statecraft: using law as a proactive, adaptive, shaping instrument of grand strategy. As we have argued, grand strategy, including all instruments of statecraft, today must be calibrated, plural, contingent, and context sensitive. Legal statecraft fits this strategic approach—shaping and adapting the rules of the international system rather than merely using them as weapons.
The question for policymakers is whether the United States can transform its approach to international law from a means of coercion and punishment into a cornerstone of its strategic portfolio and national policy? Lawfare is tactical—legal statecraft is world-making.
