Lawfare, or legal warfare, is an emerging threat to U.S. forces and interests around the world, and one that China is intent on using to bludgeon any nation that opposes it. As Dean Cheng at the Heritage Foundation argues in a new report, this offensive use of the law springs from a different conception of law in China than in the West. Whereas the West widely believes in the rule of law, where the law applies equally to all and constrains bad actors both in and outside of government, Chinese Confucian traditions and current communist rule employ rule by law, or the practice of letting the government use the law purely to control the populace.

The Chinese view lawfare as integral to ongoing operations against other nations in pursuit of the party's objectives. Thus, weakening and disrupting other nation's efforts through international lawsuits and often tortured interpretations of law is a valid and desirable weapon in the Chinese arsenal. Take for example the U.N. Convention on the Law of the Sea (UNCLOS). The Chinese have used this international treaty against others to claim all sorts of territorial rights, yet often do not feel bound to submit to the law themselves.

In terms of lawfare threats to the U.S., many possibilities exist. If the U.S. joined UNCLOS, the Chinese would use lawfare to constrict our naval operations in Asia with any number of arguments ranging from their interpretation of territorial rights to environmental concerns (not that the Chinese really care about the environment). The threat of Chinese lawfare against Japanese assistance to U.S. operations is real considering Japan's pacifist constitution. Our defense of Taiwan could be challenged and the Chinese could, in their minds, legally justify any number of aggressive actions given their reading of law. Seeing as the U.S.'s commitment to rule of law rejects offense use of lawfare, we need to make sure that we are ready to defend ourselves from such attacks.