Lawfare

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China executing a lawfare campaign against U.S. navy with excessive EEZ claims

Political and legal activity publicized by international civil society and transnational organizations may be used to bring pressure against a potential adversary. China seeks to leverage international organizations and willing national governments in its lawfare campaign. The Department of Defense reports, for example, that the assertion of claims and rights in the maritime domain could enhance the perceived legitimacy of coercive Chinese operations at sea.79 From the Chinese perspective, the global nature of international politics and the proliferation of international laws and regu- lations serve to make this form of legal warfare more effective than in the past.80

In terms of maritime strategy, China’s legal warfare is a resourceful anti-access or sea denial strategy. Sea denial is employed by inferior continental navies to deny maritime powers the ability to exercise command of the sea and thereby limit their influence over events on land.81 Employment of submarine mines is an example of a traditional sea denial strategy. China seeks to create “strategic depth” to the Chinese mainland by denying access of its EEZ to warships and aircraft of the United States, Japan and other coun- tries in the region. The strategy of the People’s Liberation Army (Navy) (PLA(N)) set forth in a recent Chinese defense white paper is directed at the “gradual extension of strategic depth for offshore defensive operations” and for “enhancing its capabilities in inte- grated maritime operations and nuclear counterattacks.”82

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Kraska, James. "The Law of the Sea Convention: A National Security Success -- Global Strategic Mobility through the Rule of Law ." George Washington International Law Review. Vol. 39, No. 1 (2007): 543-572. [ More (16 quotes) ]
US accession to UNCLOS would uniquely expose it to baseless climate change lawsuits

Currently, there is no forum in which to initiate a viable international climate change lawsuit against the United States. The U.S. withdrew from the compulsory jurisdiction of the International Court of Justice (ICJ) in 1985 and is not as yet a party to the United Nations Convention on the Law of the Sea (UNCLOS).2

However, if the United States accedes to UNCLOS, thereby reversing a 30-year policy of remaining outside of the convention, the U.S. would be exposed to climate change lawsuits and other environmental actions brought against it by other members of the convention. The eco- nomic and political ramifications of such lawsuits would be dire.

This paper demonstrates that accession to UNCLOS would unnecessarily expose the United States to baseless and opportunistic international lawsuits, including suits based on the theory of anthropogenic climate change.

Groves, Steven. Accession to U.N. Convention on the Law of the Sea Would Expose the U.S. to Baseless Climate Change Lawsuits . Heritage Foundation: Washington, D.C., March 12, 2012 (26p). [ More (9 quotes) ]
US has always resolved maritime disputes with voluntary, bilateral diplomacy -- accession to UNCLOS would compel legally binding dispute resolution

The United States and other nations are free to resolve their maritime disputes in a number of ways outside of UNCLOS, including bilateral negotiations, fact-finding and conciliation commissions, and proceedings at the Permanent Court of Arbitration, to name a few.8 The United States may also submit a dispute by special agreement to the International Court of Justice, as it did in 1981 to resolve a dispute with Canada over maritime boundaries in the Gulf of Maine.

Bilateral negotiations, special agreements, arbitration, and conciliation commissions have in com- mon the fact that they are voluntary means of resolving maritime disputes. The United States may choose to engage in such voluntary pro- ceedings depending on whether the predicted outcome would advance its national interests. However, if the U.S. accedes to UNCLOS, it will be compelled to submit itself to legally binding dispute resolution whenever another member state brings a lawsuit against it.

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Groves, Steven. Accession to U.N. Convention on the Law of the Sea Would Expose the U.S. to Baseless Climate Change Lawsuits . Heritage Foundation: Washington, D.C., March 12, 2012 (26p). [ More (9 quotes) ]
Lawfare can impose political and strategic costs against United States
The term "lawfare"-referring to the strategic use of legal claims to accomplish or oppose a military objective-was coined in 2001 by Major General Charles J. Dunlap, Jr., former Deputy Judge Advocate General of the U.S. Air Force.48 While many legal claims pertaining to the lawfulness ofnaval operations are lodged both formally and informally by governmental actors-for example, through diplomatic channels or the media it is useful to note that "lawfare" practitioners increasingly include non-state actors. Variants of "lawfare" may involve uniformed military or insurgent fighters executing a strategy of claiming illegal treatment while detained in order to undermine the perceived moral legitimacy of a state adversary; a single state or group of states seeking an International Court of Justice ruling confirming illegal aggression on the part of an adversary state; individual or organizations of peace activists suing to enjoin governmental activities relating to nuclear weapons; or environmental activists suing to block use of military sonar. Despite the somewhat ominous overtones of the word "lawfare" and the contentiousness of the claims concerned, it should be noted that the assertion of valid legal claims-as distinct from a strategy of lodging specious claim-is, of course, a legitimate means of furthering individual, organizational, and governmental objectives. Indeed, U.S. Department of Defense (DoD) policy requires that all military operations, regardless of their nature, be conducted in accordance with applicable international law. 49 While it is self-evident that the legitimacy of legal claims labeled "lawfare" must be determined on a case by case basis, it is likewise clear that the "sting" of an allegation of illegality can immediately and often irreparably diminish the perceived legitimacy of national security related actions in the eyes of governmental officials as well as their constituents. Therefore, regardless of their ultimate resolution, the underlying claims can instantaneously result in varying degrees of national security "cost" to the extent they succeed in increasing skepticism of or opposition to the national security interests of the United States.
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De Tolve, Robert C. "Rock". "At What Cost? America's UNCLOS Allergy in the Time of "Lawfare" ." Naval Law Review. Vol. 61. (2012): 1-16. [ More (8 quotes) ]
Structure and effect of UNCLOS currently being developed by state practice and negotiations with the US as a bystander
As with most comprehensive legal framework documents, UNCLOS includes many broadly worded provisions susceptible to differing interpretations. Not surprisingly, while many of UNCLOS' provisions reflect customary international law, contributed to the rise of significant international political and military rifts. For example, as of 1997, over forty coastal nations-including strategically significant nations such as India and China-have claimed the right to restrict the "innocent passage" of foreign warships through their territorial waters on the basis of prior notice, consent, and/or means of propulsion." Similarly, a minority of coastal states again including China have claimed and/or sought to enforce restrictions or prohibitions on foreign military activities, such as the collection of military intelligence or the conduct of military exercises, within their exclusive economic zones (EEZs). states likewise consider such restrictions contrary to UNCLOS . However, an adequate remedy is not readily available, as judicial and tribunal decisions have yet to definitively resolve these divergent positions. Instead, the relevant currency in the ongoing "negotiation" over the contours of UNCLOS is comprised of relevant state practice, such as diplomatic statements, naval operational assertions, domestic implementing legislation, and authoritative policy documents; institutional policy consensus from, for example, the differing interpretations of key provisions have The United States and a majority of UNCLOS International Law of the Sea Tribunal (ITLOS), the UNCLOS and the UNCLOS Commission on the Limits of the Continental Shelf (CLCS); 56 and the writings of international legal scholars.
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De Tolve, Robert C. "Rock". "At What Cost? America's UNCLOS Allergy in the Time of "Lawfare" ." Naval Law Review. Vol. 61. (2012): 1-16. [ More (8 quotes) ]
China using US non accession to UNCLOS against it in its strategy to gain control over territory in South China Sea

Having long recognized the efficacy of legal "securitization" claims as a mechanism through which to bolster regional sea control, China has apparently developed an effective strategy in furtherance of its objective." This strategy rests upon China's UNCLOS stance and includes declaratory statements incorporated into China's UNCLOS ratification depository instrument and includes domestic legislation formally claiming security interests in its territorial seas and EEZ, development of supporting legal scholarship, and a complementary strategic communications campaign.12 As China gradually works to set conditions conducive to marginalizing U.S. influence in the East, Southeast, and South Asia regions, its dramatic economic growth will likely further boost its ability to influence the behavior of smaller regional neighbors in a manner consistent with China's UNCLOS "securitization" narrative. The absence of a formal U.S. commitment to UNCLOS is yet an additional vulnerability China can exploit in inducing its neighbors' to acquiesce in its territorial seas and EEZ claims. Such acquiescence would strengthen China's ability to claim territorial sea sovereignty over vast swaths of the East and South China Seas, seriously hampering the United States' ability to project military power in the region.

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De Tolve, Robert C. "Rock". "At What Cost? America's UNCLOS Allergy in the Time of "Lawfare" ." Naval Law Review. Vol. 61. (2012): 1-16. [ More (8 quotes) ]