The term law fare which is being used increasingly these days refers to the manipulation of the legal system and legal structure to use as a means of accomplishing political, military, or social aims without active military engagement. In short, law fare makes law a tool of power projection, able to do everything from delegitimizing opponents, to shaping public opinion, or sabotaging activities and interests of opponents. The plan proves the capability of law as a tool to act without exception as a potent force multiplier, giving states and, even, non-state actor’s effective tools to attain strategic goals traditionally explored by the use of military force.
The theoretical premise of law fare is varied, as the application of the concept is varied. Famous legal scholar David Kennedy defines law fare as a form of international battle of coercion, with law as the most dominant form of applying pressure. Kennedy does not think that war is confined to the use of physical arms only; the systematic use of coercion can be carried out on the basis of fiscal systems, organizational power, opinion, and bureaucratic possibilities. General Charles Dunlap relies upon the claim made by Kennedy and makes a distinction between the lawful and unlawful application of law as a weapon stating that what might be considered a legitimate use of law on the part of one party might still be considered an application of the law as a weapon by another party. This is further developed by Jill Goldenziel who affirms that law fare can be used to boost legitimacy and concomitant bashes legitimacy of opponents and in effect reformulating power structures by executing sober legal stratagems.
We can find the continuity of the law fare in its tracking along the historical outline. Already in the seventeenth century, jurist Hugo Grotius, the so-called father of international law, used legal science to give legal clout to the Dutch East India Company in its fight with Portuguese sea power. The classic work of Grotius, the Mare Liberum, which promoted a free sea, established a basic legal concept that was later used around the globe. Already back in 5th century BC, Sun Tzu claimed that the highest achievement in the art of war was having an adversary submit to movements of defeat without physical conflict itself, which would later find its echoes in the Chinese military thinking.
Military planners in China, which were captured in the famous book, Unrestricted Warfare, also focus on how to manipulate societal politics rather than facing it out militarily, a generalization of what law fare means in the modern context. Law fare includes a wide range of strategies that may be applied to achieve certain goals and in different situations. Internationally, law fare can consist of strategic litigations or arbitration at international tribunals e.g. the International Court of Justice or the International Criminal Court in relation to asserting territorial claims, or resolution of disputes. Another powerful tool is regulatory manipulation via calculative implementation of bureaucratic obstacles and strict administrative demands. Furthermore, direct legal assault and suits are often used in order to sabotage the work of the competitors or postpone the aggressive projects in the name of gaps in the rules and ambiguities of the current law. Outside the courts, strategic media campaigns use legal actions as a means to sway the mood of the streets, framing the campaign and dealing with opposition or gaining the acceptance of certain policy proposals.
A prime example of law fare we can observe in our time is an ongoing suffocation of Western Sino geopolitical struggle, which has become increasingly evident in their worsening technological and trading conflict. Both of the countries have progressively engaged in law fare measures, which uncovers inherent disparity between their strategic theories. The law fare has been adopted by China as a long-term systematic behavior, extensively expressed by the Chinese leaders. In 1996, Chinese pundits were told by Jiang Zemin to use international law as a sword. However, in more recent times, the Chinese government promoted a very open policy position which was presented by President Xi Jinping when he spoke at the 19th Party Congress where he stated explicitly that Chinese policymakers are encouraged to interpret international rules in favor of China and that this was an inherent strategic doctrine that would appear in the Chinese military and diplomatic playbooks.
The dramatic stance of the use of law fare by China is also seeming vivid in the cases of South China Sea, whereby Beijing upholds its hunger to expand its boundary and territory by relying on tactical interpretation of international maritime laws. China has succeeded in asserting its mastery, by largely audaciously favoring the principles of law that are useful to its interests and deploring the breaches of perceived international laws by other member states making it hard to call on the international standards.
On the contrary, the United States uses law fare in a different manner, usually combining economic and legal coercion with other areas of geopolitical strategies. In its history, U.S. has used sanctions, limitations on the trade, and legal counter measures to pursue operational and strategic objectives. The use of American sanctions regimes and others used in Iraq and North Korea show the power of law fare in destroying the ability of an adversary without the direct use of warfare. More recently, the case of Washington using the legal mechanisms against Huawei is yet another example of such strategic approach reliance on sanctions and prosecutions as the means of addressing the perceived security threats.
The current semiconductor rivalry between China and the U.S. is a clear demonstration of the great strategic implication of law fare. These technologies are related to global economic competitiveness, national security and innovation, that are involved around the competition. The sanctions that the U.S. imposes on transferring semiconductor technology to Chinese companies, including sanctions against Chinese companies (Huawei and SMIC), aim to sabotage Chinese technological plans. These sanctions also go hand in hand with export, joint venture restrictions and restrictions to access technologies especially in highly advanced areas such as chips production and design.
The American law fare tactics, however, are quite risky and have unacceptable consequences. In the past, unilateral American sanctions which were geared to restrain the Chinese technological progress have in most cases failed, but rather propelled the Chinese towards self-sufficiency. The prosperity of home-grown 5G chip used in the Mate 60 smartphone belonging to Huawei highlights the counter productivity of such measures as restrictions. The practice is reminiscent of previous historical practices by American limitations to production of nuclear, satellite and Global Positioning System devices which has increased Chinese ability to foster its own capabilities and become less vulnerable to foreign powers with less chances of influence by the U.S. Moreover, these one-sided sanctions can cut off American businesses to lucrative and progressive markets and deny them access to other essential resources that include money, natural materials, and world talent bases. Such tactical inaccuracies can weaken the U.S. world leadership in technology and innovation, which can easily destroy old geopolitical alliances and reduce the American soft power internationally.
Taken into consideration the listed challenges, it is also quite clear that the United States has to reassess its way of strategically using law fare, lest the results will prove counterproductive. Being viewed as efforts to suppress the economic rise of China using China as an excuse, such policies are likely to attract resentment and responses that also have a strategic aspect. Things like rounding sanctions that go back since the Tiananmen crisis, failure to approve loans on non-security grounds or enforcing trade practices that are unconscriptionally severe in international trade accords have the effect of creating a stink of intentional obstructionism. Rather, a cooperative approach to dealing with China, the delivery of technical assistance to ensure the fulfillment of international commitments, and the alignment to the global standards, can aid in positively steering China toward joining the international systems.
Finally, the tactical use of law fare has to rely on concise, consistent guidelines solidly based on the principles of international law. When employing law as an instrument of national strategy, one must balance it very finely in order to maintain legitimacy, equity and integrity of international legal systems. Observance to these legal frameworks is essential in the viability and credibility of the democratic principles. In substance, law fare should never become strategic opportunism since the latter leads to destruction of the rule of law itself. To make it legitimate and efficient in the long-term, it must be pursued in a disciplined manner, where the strategic needs are balanced with the unequivocal respect of the basic democratic principles and international legal rules.
