EU law has lost its shine as the legal gold standard. The so-called Brussels effect – the impact of EU law on its neighbours and global corporations operating in the single market, has been waning for years. Nowadays, its effect is mostly felt in anti-trust law, or in the chemicals directive or the General Data Protection Regulation.
Covid-19 has sharpened Sino-American rivalry and accelerated the trend towards deglobalisation and a new cold war. Hope is fading that the EU on its own could set world standards on the ethical use of AI or rules on decarbonisation. To defend its interests in the international arena, the EU should consider more hard-nosed ways of instrumentalising the power of law.
For Putin’s Russia and Erdogan’s Turkey, law is a malleable instrument to crush dissent at home and create legal fictions abroad. It is also a weapon in the Israeli-Palestinian conflict.
China has explicitly adopted the concept of ‘legal warfare’ (falu zhan) and applies it in Hong Kong, in the South China Sea, along the Belt and Road, in cyber space and actual space.
The term lawfare was coined in 2001 by the United States, which has effectively deployed financial, insurance and energy law to boost its power and check that of its adversaries. In fact, transatlantic allies were among the first to feel the stick when European companies were forced to stop trading with Iran or risk the ire of the Treasury Department.
Despite evidence that certain countries have been waging a ‘shadow war’ against the EU for years, individual member states have largely been left to their own devices. From Russia’s 2007 cyberattack on Estonia to Turkey’s drilling activities in the exclusive economic zone of Cyprus and China’s ‘wolf warrior’ diplomacy in European capitals, rivals have long been chipping away at Europe’s strategic autonomy.
Disinformation campaigns and hostile meddling in European elections have become commonplace, undermining trust in public institutions. The aim is to inflict enough damage on the EU and its member states for it to hurt, but to stop short of sparking a retaliation that would incur intolerable costs for the perpetrators.
Yet EU sanctions alone have not brought about any change of behaviour in those targeted. And Europe is nowhere in pooling and sharing land, air and maritime assets in the common interest, let alone in developing the joint cyber, space and other capabilities needed to withstand new types of assault.
In the wake of a threat or attack, the EU will invariably express dismay, perhaps find the internal consensus to adopt a token set of restrictive measures and stress the need for negotiations to defuse the situation. But nothing it does actually deters its rivals, who move on from the new baseline.
One option for the EU is to also ignore its legal obligations, and retaliate. But even if it were resilient enough to absorb the inevitable counterattacks, this would erode the law from which it benefits and which still holds parts of the international order together.
Another kind of EU lawfare violates no domestic or international law or ignores no clear-cut violations by the Union’s opponents. Nor does it support a hyper-aggressive practice whereby every loophole is exploited to promote the EU’s interests.
The alternative is more agile, where the EU strategically wages and creatively defends itself against lawfare, using combinations of international, EU and national law and fora as instruments of power, thereby substantially raising the cost of illegal practices by adversaries.
Other lawfare tactics include triggering intrusive investigations by international organisations (such as the IAEA in Iran and the OPCW in Syria), or summoning votes in the UN General Assembly and advisory opinions by the International Court of Justice, for example on the legality of Israel’s plan to annex much of the West Bank. Or adopting EU directives to enable NGOs and individuals to litigate against terrorist groups and their (state) sponsors in national jurisdictions. Another option is to sharpen EU regulations to either prevent banks and energy companies from servicing rogue regimes and their clients, or to shield European entities from ‘secondary’ US sanctions.
For the European Union, described by a former German foreign minister as a vegetarian in a world full of carnivores, the lack of systematic engagement with lawfare seems like a missed opportunity.
As a community of law, the EU has a history of doing legal battle to defend its autonomy and promote its norms in the international arena. Rather than worry about the impact of retaliation on its economy, the EU should broaden its global strategy and use the law more adroitly to defend its interests and advance its security objectives. If the risk of conflict is indeed greater in a post-corona world, and if some portion of future warfare can be shifted to the legal arena, then that should be to the EU’s tactical advantage.