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“
Lawfare
is a polysemic term now widely used to signify deploy-
ments of the force of law for diverse ends, ends political and military,
economic
and
social. With
consummate
erudition
and
a
flair
for
the
well-chosen example, Jaume Castan Pinos and Mark Friis Hau bring
welcome conceptual clarity to the topic, providing a cogent model of
the different species of legal means covered by the term. In so doing,
they demonstrate that lawfare can
yield
ends
that
are
sometimes
lethal,
sometimes
laudable, sometimes
lamentable, usually
contentious.A
very
informative, important study of a phenomenon of growing signifi-
cance across the world.”
John
Comaroff,
Professor of African and African American
Studies and
of Anthropology, Harvard
University, USA
“The book provides an excellent introduction to the concept and
phenomenon of lawfare in its many facets. Using diverse examples
from across the globe, it effectively illustrates how state and non-state
actors – powerful and weak – engage in lawfare, strategically using
rights and law to advance their political goals.”
Siri
Gloppen,
Professor
of
Comparative
Politics,
Bergen
University, Norway
“
Lawfare
is a controversial concept. Can the application of the Law be
illegitimate or abusive? Jaume Castan Pinos and Mark Friis Hau have
written a brief but comprehensive volume in which, with great clarity
and insight, they examine the phenomenon of lawfare in all its com-
plexity. A masterful analysis.”
Ignacio
Sánchez-Cuenca
,
Professor
of
Political
Science,
Carlos III University of Madrid, Spain
Lawfare
This book develops a new conceptualisation of lawfare that recognises
the polysemantic nature of the term.
Drawing on theoretical developments from legal anthropology,
international relations, and social theory, the book scrutinises the
multiple
dimensions
of
this
phenomenon. It
illustrates
the
multifaceted
character of lawfare with a wide range of historical and contemporary
cases from across the globe and analyses the implications of actors
pursuing
political
objectives
through
legal
means. This
includes
the
use
of
lawfare
by
states as a legal instrument to accomplish geopolitical
objectives, domestic lawfare, or the use of legal instruments to
undermine
internal
opposition, and
state
lawfare
used
by
governments
to ‘protect’ the
state
from
internal
territorial-secessionist
challenges.
Finally, the book shows that lawfare is not exclusively a tool for
hegemonic actors, as it can also be used by civil society actors that
aim to uphold their rights through legal instruments in asymmetric
lawfare.
This
book
contributes
to
new
developments
in
lawfare
without
shying
away from controversy, acknowledging its sometimes-brutal efficacy
as well as its potential pitfalls. The
book will appeal to scholars and
students
of
law,
international
relations,
political
science,
anthropology,
and sociology.
Jaume
Castan
Pinos
is Associate Professor at the Department of
Political Science and Public Management, University of Southern
Denmark.
Mark
Friis
Hau
is a postdoctoral researcher at the Employment
Relations Research Centre (FAOS) at the Department of Sociology at
the University of Copenhagen, Denmark.
Lawfare
New Trajectories in Law
Jaume Castan Pinos and
Mark Friis Hau
First published 2023
by Routledge
4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
605 Third Avenue, New York, NY 10158
‘A GlassHouse book’
Routledge is an imprint of the Taylor & Francis Group, an informa
business
© 2023 Jaume Castan Pinos and Mark Friis Hau
The right of Jaume Castan Pinos and Mark Friis Hau to be
identified as authors of this work has been asserted in accordance
with sections 77 and 78 of the Copyright, Designs and Patents Act
1988.
All rights reserved. No part of this book may be reprinted
or reproduced or utilised in any form or by any electronic,
mechanical, or other means, now known or hereafter invented,
including photocopying and recording, or in any information
storage or retrieval system, without permission in writing from the
publishers.
Trademark notice: Product or corporate names may be trademarks
or registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British
Library
ISBN: 978-1-032-26772-2 (hbk)
ISBN: 978-1-032-26774-6 (pbk)
ISBN:
978-1-003-28986-9
(ebk)
DOI: 10.4324/9781003289869
Typeset in Bembo
by Apex CoVantage, LLC
Contents
Acknowledgements
x
1 Introduction 1
2 Geopolitical lawfare: legal instruments as
weapons of war 7
2.1
Introduction
7
2.2
Why
is
geopolitical
lawfare
a
popular
tool?
9
2.3
Great powers’ attitudes and strategies towards
geopolitical lawfare
11
2.3.1
The US vis-à-vis geopolitical lawfare
12
2.3.2
Lawfare and the People’s Republic of
China 13
2.3.3
The Russian Federation and lawfare
17
2.4
Geopolitical lawfare methods in the international
arena 21
2.4.1
Sanctions
21
2.4.2
Lawfare through intergovernmental
organisations 24
2.4.3
Discursive lawfare
27
2.5
Conclusion
30
3 Domestic
lawfare 33
3.1
Introduction
33
3.2
Related
concepts
35
viii Contents
3.2.1
Judicialisation
of
politics
35
3.2.2
Power, law, and the state of exception
36
3.3
The effects of domestic lawfare on liberal democratic
regimes
38
3.4
Applications
of
domestic
lawfare
40
3.4.1
Soft domestic lawfare in Hungary and
Poland?
40
3.4.2
Domestic
lawfare
in
Latin America
43
3.5
Conclusion
46
4 Lawfare and territorial conflicts 48
4.1
Introduction
48
4.2
Rule
of
law
in
territorial
conflicts
49
4.3
The
legal
dispossession
of
Native Americans
52
4.3.1
Situation
52
4.3.2
Analysis
53
4.3.3
Implications
54
4.4
State
lawfare
in
Northern
Ireland
54
4.4.1
Situation
54
4.4.2
Analysis
57
4.4.3
Implications
60
4.5
State lawfare in the Basque Country
61
4.5.1
Situation
61
4.5.2
Analysis
63
4.5.3
Implications
64
4.6
State lawfare in Catalonia
66
4.6.1
Situation
66
4.6.2
Analysis
68
4.6.3
Implications
70
4.7
Conclusion
72
5 Asymmetric lawfare: a weapon of the weak 74
5.1
Introduction
74
5.2
Civil
society
lawfare
75
5.3
Civil
society
lawfare: cases
79
5.3.1
The
Ogoni
case
80
5.3.2
The
Dakota Access
Pipeline
protests
82
Contents ix
5.4
Lawfare
from ‘weak’ governmental
actors
84
5.5
Conclusion
88
6 Conclusion 90
Bibliography
94
Index
116
Acknowledgements
We would like to thank Professors John Comaroff and Ignacio
Sánchez-Cuenca for their kind endorsements of this book and for
providing valuable feedback, helping us to stand on the shoulders of
giants.
We are supremely grateful to Sasha Juul Nielsen and Lena Marie
Hybschmann for proofreading the book, in the process giving us great
ideas for improving it.Thank you for your keen eyes.
We owe a debt of gratitude to Dr Steven Radil for designing the
South China Sea map specifically for this book, allowing us to illus-
trate geopolitical
lawfare
in
this
area
with
pinpoint
precision. We
are
likewise indebted to Júlia Reig at
Tall
Giraffe
for designing our graphic
typology of lawfare, giving clarity to our thoughts.
We are also grateful to our colleagues from the
Centre
for
Border
Region
Studies
(University of Southern Denmark) and
FAOS, Employ-
ment Relations Research Centre
(University of Copenhagen) for their
support and advice throughout the process.
Last but not least, we would like to thank our editors at Routledge,
Commissioning Editor Dr Colin Perrin and Senior Editorial Assistant
Naomi Round Cahalin, for their assistance and expertise in preparing
this manuscript for publication.
Chapter 1
Introduction
For the sake of academic honesty, we begin this book by acknowledg-
ing that lawfare is not, strictly speaking, a ‘new trajectory’ in law.What
arguably
constitutes
a
novelty
is
the
new
meanings
that
various
actors
are currently attributing to the term lawfare and the evolving under-
standing of
the
concept. Our
conceptualisation, which
follows
from
this, opens
up
for
further, multiple
applications
of
the
term
in
different
analytical contexts. We therefore follow Werner’s claim
that ‘the
mean- ings of terms such as lawfare are not set in stone, but rather,
evolve through
their
use
in
different
social
practices’ (2010: 62). One
of
the key objectives of this book is to scrutinise this multifaceted
concept
in
relation
to
the social practices where it is applied,
developing it as a
novel concept with great analytical possibilities.
The semantic building blocks of the concept ‘lawfare’ are rather
plain and unmysterious. This bicephalous
term
derives
from
blending
two basic
ideas:‘law’ and ‘warfare’ (Kittrie, 2016: 6). Originally, lawfare
was first
coined by two Australian
scholars, John
Carlson and Neville
Yeomans, in 1975. Unfortunately, the authors
did
not
provide
their
newly created nomenclature with a comprehensive definition. In fact,
the concept only appears once in their book chapter, when they point
out that ‘[l]awfare replaces warfare and the duel is with words rather
than swords’ (1975). This sentence must be understood
in
the
context
of
their
critique
of
Western
law,
which
they
saw
as
excessively
aimed
at
punishment (ibid.). This lack of
conceptual
substance
has
had
critical
consequences for the understanding and trajectory of lawfare, paving
the way for different conceptualisations of the term.
According to the dominant academic understanding of lawfare,
this phenomenon primarily occurs in military contexts where it is
used as an instrument of defence or foreign policy (see Dunlap, 2008,
2009, 2010). This
connects
well
with
the
understanding
of
lawfare
as
DOI: 10.4324/9781003289869-1
2 Introduction
a legal ‘weapon of war’ (Kennedy, 2006). In this
book, we
argue
that
such
an
understanding
accounts
for
just
one
of
the
dimensions
of
law-
fare, namely ‘geopolitical
lawfare’. Conversely, we
view
the
concept
as
much more polysemantic and complex. Hence, we
understand
lawfare
as a
multifaceted law-based instrument that can be used by a wide range of
actors in both military and non-military contexts to pursue political objectives
.
In
other
words, lawfare
is
a
rich
concept
with
multiple
dimensions
and,
crucially, with
multiple
users. Our
definition
is
deliberately
inclusive
in the sense that it does not challenge any of the existing, narrower
conceptualisations. Instead, it is aimed at having a wider scope that
incorporates – and acknowledges – different dimensions of lawfare.
The emergence of
new
types of lawfare inevitably generates a dis-
crepancy between the dominant military-grounded definition and the
very different nature and meaning of some contemporary applications.
With
a
few
notable
exceptions
(Comaroff
and
Comaroff, 2006, 2007,
2009; Gloppen, 2018), the
conceptual
diversity
of
lawfare
has
so
far
not been met with a rigorous academic conceptualisation. We con-
tend that the new applications of lawfare are not only a popular term
in contemporary societal and political debates but have rich analyti-
cal
potential
and
terminological
value. Following Anthony
Giddens’s
(1984) ‘double hermeneutic’, or the mutual interpretative interplay
between the social sciences and those studied, we acknowledge that
just as theories help to reconstitute the social world, real-life ideas
about the world are the very foundation for theoretical insights.
Similar to other concepts, lawfare is susceptible to different inter-
pretations, applications, and transformations as the meaning of the
concept mutates by
virtue of social practices and political context. As
McGinn eloquently
puts
it,‘words
. . . don’t
have
meaning
nonderiva-
tively’ (2017: 82) but derive from specific contexts. For
this
reason, we
seek to follow empirical reality – the increasing use of lawfare in geo-
political
domestic, territorial, and
asymmetric
conflicts
–
to
develop
a
scholarly conceptualisation of the term that widens its meaning and
encapsulates its multifaceted and polysemantic character.
To this end, we propose a new multidimensional conceptualisation
of lawfare fitting the term’s current popularity and general use in soci-
ety as well as its previous academic interpretations (see Figure 1.1).
Our scrutiny of the multiple dimensions of lawfare is theoretically
well-grounded, drawing on developments from legal anthropology,
international
relations, and
social
theory. Further, our
study
aims
to
shed light on the different uses of lawfare by considering which actors
use it, in which context, and with which political objectives.
Introduction
3
Figure 1.1
The multiple dimensions of lawfare
Source: elaborated by authors
Our first dimension of lawfare is ‘
geopolitical
lawfare
’. This is cur-
rently the most prevalent meaning of lawfare in academia, understood
as the use of legal instruments in international security and geopoliti-
cal struggles for power. It is less financially costly and more discreet
than other power instruments on the international scale. Geopolitical
lawfare is being increasingly incorporated into the security strategy
documents of the US, the People’s Republic of China, and the Russian
Federation, often as a method of hybrid warfare.
The second dimension, ‘
domestic
lawfare
’, is perhaps the most
potentially pernicious variant of lawfare for liberal democratic sys-
tems.We
define
it
as
the
strategy,
pursued
by
domestic
political
actors,
of using – and often misusing – legal instruments to undermine
their political
opponents. This
instrumentalisation
of
the
law
is
typi-
cally carried out by governmental actors that aim to increase their
political power and may include various tools such as (packed) courts,
constitutional amendments, excessive litigation, or partisan legal
interpretations.
We also advance ‘
state
lawfare
’ as an important subdivision of
domestic lawfare used in internal territorial conflicts. Internal territo-
rial conflicts often take place against a backdrop of divided loyalties
and competing politico-legal systems where two polities lay claim to
the same territory, as in the case
of secessionist movements. States
of
exception, special
orders, incarceration
of
political
and
civil
society
leaders, and temporary loss of civil liberties are all key elements of
how governments
employ
state
lawfare
to ‘solve’ disputes
with
minor-
ity territorial
groups. While
this
can
be
brutally
effective
in
the
short
run, it may weaken the possibility for long-term settlements due to
furthering grievances between political opponents.