Lawfare and Sea Power: A Historical Perspective

• Author: Dennis Harbin
• Position: LCDR Dennis Harbin, JAGC, USN (LL.M., The Judge Advocate General's School; J.D., Pennsylvania State University; B.A., Virginia Military Institute)
• Pages: 449-469

Lawfare and Sea Power: A Historical Perspective

Dennis Harbin*

Strategists and international lawyers usually make strange bedfellows.

Exponents in law and in the application of reason over power do not easily snug-

gle up to brokers in disorder and international conflict.

1

—Ken Booth

Four hundred years ago, the United East India Company hired Hugo Grotius,

who would later be memorialized as the “father of international law,” to legiti-

mize Dutch sea power in the South China Sea. The legal defense he crafted would

have major implications for competition between democracies and autocracies

centuries later. Today, free and open access to the world’s oceans is once again

“under assault.” Therefore, defending the international rules-based order

requires states to exercise a legalistic version of sea power in which international

law influences 1) maritime, strategic objectives, and 2) naval power in the infor-

mation domain—a concept known today as “lawfare.”

INTRODUCTION

Free and open access to the world’s oceans is “under assault.”

2

In this era of

strategic competition between democracies and autocracies,

3

defending the inter-

national rules-based order requires states to exercise a legalistic version of sea

power. Put another way, sea power is more than just a state exercising its military

prowess at sea, it is also about international law’s historical ability to influence

and further 1) a state’s maritime, strategic objectives, and 2) a state’s use of naval

power in the information domain

4

See DEPT. OF DEF., ADVANTAGE AT SEA: PREVAILING WITH INTEGRATED ALL-DOMAIN NAVAL

POWER (2020), infra note 143. The current definition of “naval power” makes reference to the

“information domain” which is that space where states exercise power to influence the “knowledge,

understanding, beliefs, world views, and, ultimately, actions of an individual, group, system, community,

or organization” in order to gain a military advantage. See JOINT CHIEFS OF STAFF, U.S. DEP’T OF DEF.,

JOINT CONCEPT FOR OPERATING IN THE INFORMATION ENVIRONMENT (2018), https://perma.cc/39MK-

AFGQ.

—a concept known today as “lawfare.”

* LCDR Dennis Harbin, JAGC, USN (LL.M., The Judge Advocate General’s School; J.D.,

Pennsylvania State University; B.A., Virginia Military Institute). LCDR Harbin is a judge advocate in

the US Navy. Views expressed in his article represent the personal views and conclusions of the author

writing in his personal capacity. A former version of this article was presented at the U.S. Naval

Academy’s 2021 McMullen Naval History Symposium. © 2023, Dennis Harbin.

1. KEN BOOTH, LAW, FORCE AND DIPLOMACY AT SEA 5 (1985).

2. Kenneth Braithwaite, Preface to DEPT. OF DEF., ADVANTAGE AT SEA: PREVAILING WITH

INTEGRATED ALL-DOMAIN NAVAL POWER (2020).

3. See EXEC. OFF. OF THE PRESIDENT, NATIONAL SECURITY STRATEGY (2022).

4.

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While the People’s Republic of China (PRC) is undermining the rules-based

order and making the South China Sea ground-zero for maritime lawfare,

5

it is

important to note that “free and open” originates from and relies on a legal princi-

ple developed in violent waters centuries ago. The seizure of the Santa Catarina

near the Strait of Singapore in the seventeenth century inspired the development

of one of the cornerstones of the rules-based order—the Free Sea principle.

6

The

man who crafted the Free Sea principle, as well as the framework for using the

law to legally justify and legitimize sea power, was Dutch lawyer Hugo Grotius.

In publishing Mare Liberum (The Free Sea),

7

he sparked a debate that would

result in the establishment of international norms and promote “security and pros-

perity”

8

around the world. In arguing that the maritime activities of trade access

and navigation were essentially inalienable rights, he laid the legal foundation

that these rights may be defended with force.

9

Later in his life, Grotius helped es-

tablish the foundation of the relationship between law and military power in his

monumental work De Jure Belli ac Pacis (On the Laws of War and Peace).

10

Just

over three-hundred years later, Admiral Alfred Thayer Mahan would rely on

Grotius’ argument—that the sea is a “common”—as a foundation on which he

built his sea power philosophy.

11

Then in the twentieth century, this relationship

between international law and sea power was expertly illuminated by interna-

tional legal scholar Daniel Patrick O’Connell in his thought-shaping book The

Influence of Law on Sea Power.

12

The ideas of Mahan and O’Connell grew from

the intellectual seeds planted by Hugo Grotius. Grotius’ argument for a Free Sea

principle, and its use to legitimize sea power, arguably makes him the father of

maritime lawfare.

13

The purpose of this article is to aid in the understanding of how international

law

14

shapes a state’s use of sea power

15

in this era of strategic competition. In

some ways, this argument serves as a modest contribution to the much larger

5. Jill Goldenziel, Law as a Battlefield: The U.S. China, and Global Escalation of Lawfare, 106

CORNELL L. REV. 1085, 1102 (2021).

6. The phrase “Free Sea principle” will be used throughout this article to refer generally to Grotius’

ideas and works on the freedom of the seas and the justification to use force to defend it.

7. HUGO GROTIUS, MARE LIBERUM (David Armitage ed., 2004).

8. See EXEC. OFF. OF THE PRESIDENT, supra note 3.

9. See GROTIUS, MARE LIBERUM, supra note 7, at 25 (arguing that the freedom of the seas stemming

from natural law and the Creator, and thus are inalienable). See also HATHAWAY & SHAPIRO, infra note

25, at 11 (describing Grotius’ theory that war is a justifiable alternative to courts when rights are

violated).

10. HUGO GROTIUS, ON THE LAWS OF WAR AND PEACE (Stephen C. Neff ed., 2012)

11. JAMES HOLMES, A BRIEF GUIDE TO MARITIME STRATEGY 4 (2019).

12. DANIEL P. O’CONNELL, THE INFLUENCE OF LAW ON SEA POWER (1975).

13. ORDE KITTRIE, LAWFARE: LAW AS A WEAPON OF WAR 4-5 (2016).

14. For the purposes of this article, “international law” will primarily refer to public maritime law or

what is also known as the law of the sea.

15. While there is an academic distinction between “sea power” and “naval power,” that distinction

is outside the scope of this article. This paper will refer to “sea power” and “naval power”

interchangeably.

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