Prize Law Can Help the United States Win the War of 2026

The War of 2026 scenario portrays a dangerous possible future: The United States and China go to war over Taiwan, and all signs point to it being anything but a “short, sharp war.”¹ But the longer the war drags on, the greater the toll in blood and treasure—and the larger the specter of nuclear escalation will loom. To escape this quagmire, the United States must craft an adroit theory of victory—a “causal story” about how it will defeat its adversary—that preserves Taiwan’s freedom and quickly brings the war to a favorable end without producing a nuclear exchange.² 

Such lofty ends and such challenging circumstances demand the United States carefully choose the right means. In that vein, the United States should consider invoking prize law. Though it has not been exercised since World War II, the concept provides a legal framework for the United States and its partners to seize Chinese-affiliated merchant vessels and redeploy them in support of coalition operations.³ 

By building the capabilities, capacity, and concepts needed to seize Chinese-affiliated merchant shipping during a conflict under prize law, the United States would create additional opportunities to achieve victory in a War of 2026–like conflict.

‘Tell Me How This Ends’

In many ways, “The War of 2026” portrays “the return of history”: great powers at war over national ideals and territorial expansion.⁴ But this war also would be among the first to see two nuclear-armed states engaged in such extensive conflict. A nuclear exchange between the United States and China—a real possibility in the War of 2026 scenario—would be catastrophic. 

In such a high-stakes conflict, devising a theory of victory that manages escalation risks will be the United States’ greatest imperative. To that end, a recent RAND study identifies two viable approaches to crafting a theory of victory that could be applied to a war with China. The first is denial, defined as “persuading the enemy that it is unlikely to achieve its objectives and that further fighting will not reverse this failure.” The second is military cost-imposition, which involves “using the military instrument to persuade the enemy that the costs of continuing the war outweigh the benefits.”⁵

The report concludes that military cost-imposition is less preferable than denial, as it requires finding and striking pressure points that are “valuable enough to influence Beijing’s decision-making but not so valuable that they trigger unacceptable escalation.”⁶ If Chinese forces secure a lodgment on Taiwan, however, denial’s utility will be limited. Under such circumstances, the United States likely would require a hybrid theory of victory that denies China its objective of capturing Taiwan while imposing costs that make continued fighting undesirable—and still manages nuclear escalation risks appropriately.

Key to achieving victory through denial and cost-imposition is a strategy that matches capabilities to pressure points. In the War of 2026, the most valuable capabilities present a manageable risk of inadvertent or accidental escalation; are sustainable, allowing for recovery and reconstitution; are flexible enough for use under varying conditions; and are likely to expedite the end of hostilities.

Discussions of U.S. options for terminating a limited war with China often center on deep strikes on the Chinese mainland, fleet-on-fleet engagements, a close blockade, or a distant blockade.⁷ However, deep strikes could easily trigger escalation, fleet-on-fleet engagements are neither sustainable nor flexible, and China’s antiaccess/area-denial (A2/AD) capabilities render a close naval blockade infeasible. On the other hand, a distant blockade—“intercept[ing] Chinese merchant shipping at key maritime chokepoints” outside China’s A2/AD reach—would be generally sustainable; flexible in tempo and location; pose manageable risks of escalation; and impede China’s resource-hungry, import-dependent war effort.⁸

A distant blockade is not without hurdles, though, and may not be legal. A blockade is defined as an operation to “prevent vessel traffic . . . from entering or leaving specified coastal areas” under the enemy’s control.⁹ Blockading key choke points at great distances from China likely does not meet this definition. Furthermore, the hefty naval force required to blockade some of the world’s busiest shipping lanes, the adverse effects it would have on global trade, and the reaction it might elicit from U.S. allies and partners make a distant blockade appear less tenable. There is, however, a similar but less explored option: commandeering Chinese-affiliated merchant vessels.

A Game of Numbers

It is no secret the United States faces a massive shortfall in sealift capacity. Representative Mike Gallagher (R-WI), former Chairman of the House Select Committee on the Chinese Communist Party, expressed grave concern over the 60 U.S. military sealift vessels and 177 merchant vessels—paltry numbers compared to China’s approximately 5,500-vessel fleet.¹⁰ Many view this asymmetry in sealift capacity as a boon for China; however, as China’s global reach grows, so too does the surface area of its vulnerabilities. 

Beijing depends on both imports and exports—from raw industrial materials to the most advanced technologies—but lacks the naval strength to defend the maritime trade that fuels its economy.¹¹ Instead, China has benefited from the willingness of the United States and its partners to underwrite free and open maritime trade. Ongoing events in the Red Sea are the latest example of this trend. Despite the threats to its own trade, China has been ambivalent about efforts to protect this vital shipping lane.¹²

Here is an opportunity for the United States: U.S. power projection capabilities would make it well-postured to commandeer Chinese-affiliated vessels during a conflict. Doing so would offer significant flexibility, as the vessels seized and then redeployed could vary as the conflict unfolds. For example, if the conflict exposed a shortfall in certain resources critical to China’s war industry, the United States could seize vessels supplying those resources to further limit China’s capacity to make war. Or, if the United States lost vital sealift assets in an unfavorable engagement, it could seize suitable Chinese container ships, thereby increasing U.S. sealift capacity during a conflict. Meanwhile, this could all occur outside China’s A2/AD zone. 

Commandeering Chinese-affiliated merchant vessels would be useful in a protracted conflict with a nuclear-armed China, but it would have to be done legally. As the champion of the rules-based international order, the United States must strive to uphold its principles—even during war. Fortunately, an existing legal framework provides the opportunity to do just that. 

Taking Prizes—the Right Way

The April 2020 Proceedings featured two articles recommending the United States issue Letters of Marque in the event of war with China. By doing so, the authors of one article contended, the United States could mobilize its citizenry to attack a Chinese “asymmetric vulnerability” that would “undermine China’s entire economy and threaten the regime’s stability.”¹³ They offered the legal justification that the United States has “reserved a dormant right to privateer through the persistent objector rule,” and even went so far as to propose that the demands of an existential conflict with China “would limit the salience of law.”¹⁴

But Letters of Marque are not the right option. The United States has not issued them since the War of 1812, and they were generally rejected by international law as part of the 1856 Declaration of Paris.¹⁵ While the articles made compelling arguments, the United States should not adopt an antiquated, internationally rejected form of warfare as its going-in game plan.

But prize law, a similar concept, is recognized by both domestic and international law.¹⁶ Prize law is a legal construct whereby recognized military forces conduct official “visit and search” operations and seize a cobelligerent’s vessels and/or cargo.¹⁷ Once seized, the “prize” must be adjudicated by an authorized prize court—“a domestic court under the jurisdiction of the capturing belligerent State.” If the capture is adjudicated as lawful, the belligerent state may take ownership and convert to its own use any vessel, aircraft, or cargo found to be lawfully captured. 

Prize law could afford the means to commandeer Chinese-affiliated merchant shipping during a conflict. Since prize law–enabled operations can be conducted almost anywhere in the world, the U.S. military’s global power projection capabilities could move operations outside China’s A2/AD zone. In addition, the United States could create multiple options for itself: bolstering its own sealift, acquiring critical resources it may be lacking, or depriving China of either of those requirements. All three options can support a hybrid denial/military cost-imposition theory of victory and offer enough flexibility to shift between individual options or a combination thereof. That flexibility would also permit the U.S. government to increase or decrease the pressure, making these operations uniquely suited to reach the sweet spot between being impactful and escalatory.

Even beyond hitting the sweet spot, prize law–enabled operations are well-suited to managing escalation risks. Although it would represent a geographic expansion of the conflict, using prize law to commandeer Chinese-affiliated merchant vessels would unfold more slowly than many other kinetic options, which would give adversary decision-makers more time to consider their response. Furthermore, this approach would preserve “two key escalation thresholds . . . the nuclear threshold and the homeland sanctuary.”¹⁸ 

Prize law–enabled operations are a valuable capability in a War of 2026–like conflict; however, the United States currently does not possess the capability or capacity to conduct them at the speed or scale necessary to achieve victory. Fortunately, there is time to make progress.

Build the Framework 

An operation to seize prizes would be a robust undertaking, but with a targeting cycle model as a guide, the following sketch envisions what they might look like:

• Find and Fix. The Office of Naval Intelligence (ONI), formally tasked with the “identification and tracking of merchant shipping,” could accomplish these intelligence-heavy steps.¹⁹ ONI would identify targets for a prize law–enabled operation based on national, coalition, and combatant command priorities, then work with theater, coalition, or joint force commands to assign collection assets. 

• Track and Target. These steps would occur primarily at the theater level and include real-time tracking, identification of an engagement location, and resource allocation for the engagement. Shortly before the engagement, tracking responsibilities would shift to the executing unit.

• Engage. Many possibilities exist for the engagement. In some cases, forces could be positioned ashore at narrow choke points to interdict ships when directed. In other cases, large vessels, such as expeditionary sea bases—tailor-made for specialized missions such as these—could hunt and interdict high-priority targets on the open ocean.²⁰ Prize law operations could even offer littoral combat ships their “prodigal son” moment: They could intercept merchant vessels and divert them to locations where visit and search operations could be carried out more safely.²¹ 

• Assess [and Adjudicate]. Handling the crew of the captured vessel, adjudicating the capture, and feeding back intelligence would be key activities:

♣ The disposition of the vessel’s crew would be of utmost importance. The crews of these vessels likely would be composed primarily of foreign nationals; thus, procedures for handling them—including steps for repatriation—must be delineated before they are taken into custody. 

♣ The United States would have to reestablish and modernize the processes, rules, and regulations for prize courts. The number of parties that would be involved—from U.S. courts to military lawyers to operational commanders—makes it imperative to start as soon as possible. 

♣ A feedback loop must be created so that any critical information from the capture—insights into what resources China’s war industry may be lacking or refinements to tactics, techniques, and procedures (TTPs)—can reach the broader commandeering enterprise. This process would ensure future operations prosecute the most impactful targets using the best TTPs while avoiding escalation pathways.

Much work needs to be done to identify the ideal force structures, positioning, and temporal aspects of prize law–enabled operations. But, with an understanding of the overarching process, the United States could begin constructing a framework now as an option for use in a potential war with China.

The Grand Prize

In the high-stakes War of 2026, commandeering Chinese vessels under prize law would hinder the flow of key resources to China, carry relatively low risks of nuclear escalation, and bolster U.S. strength by granting it access to much-needed resources and lift. Taken together, these elements enable a hybrid theory of victory: Seizing Chinese-affiliated vessels imposes costs that, over time, would outweigh the benefits of continued fighting; simultaneously, undermining China’s maritime trade would curb its warmaking ability, making continued fighting less likely.

The geopolitical stakes of this maritime century are high. By using its global power projection capability to coerce China into capitulating below the nuclear threshold, the United States could retain its strength and restore free and open trade under the rules-based international order. In so doing, it would guarantee security and prosperity, both domestically and globally, long after the war ends.