The rule of law and maritime security: understanding lawfare in the South China Sea

Abstract

Does the rule of law matter to maritime security? One way into the question is to examine whether states show a discursive commitment that maritime security practices must comply with international law. International law thus provides tools for argument for or against the validity of certain practices. The proposition is thus not only that international law matters to maritime security, but legal argument does too. In this article, these claims will be explored in relation to the South China Sea dispute. The dispute involves Chinese claims to enjoy special rights within the ‘nine-dash line’ on official maps which appears to lay claim to much of the South China Sea. Within this area sovereignty remains disputed over numerous islands and other maritime features. Many of the claimant states have engaged in island-building activities, although none on the scale of China. Ideas matter in such contests, affecting perceptions of reality and of what is possible. International law provides one such set of ideas. Law may be a useful tool in consolidating gains or defeating a rival's claims. For China, law is a key domain in which it is seeking to consolidate control over the South China Sea. The article places the relevant Chinese legal arguments in the context of China's historic engagement with the law of the sea. It argues that the flaw in China's approach has been to underestimate the extent to which it impinges on other states' national interests in the maritime domain, interests they conceptualize in legal terms.

A bibliometric analysis of maritime security policy: Research trends and future agenda

“…Threats to maritime security can be in the form of threats to national interests [ 13 ], border and national security [ 13 ]; maritime conflicts or disputes such as the South China Sea dispute [ [3] , [4] , [5] , [22] , [23] , [24] ]; transnational organizational crime (TOC) [ 13 , 25 ]; drug trafficking [ 25 ]; smuggling [ 13 ]; terrorism [ 13 , 18 , 26 , 27 ]; piracy [ 11 , 14 , 28 ]; armed robbery [ 14 ]; human trafficking [ 28 , 29 ]; environmental crime [ 28 ]; shipping and navigation [ 18 ]; Illegal, Unreported and Unregulated (IUU) fishing [ 8 , 30 , 31 ]; and even the threats from the problems of asylum seekers [ 19 ]. In discussing maritime security, efforts to resolve and prevent threats will definitely be one of the main topics of discussion.…”

Failing Rule of Law

“…78 Failures to enforce the SCS Arbitral Award weaken bona fide attempts to cooperate in good faith, and moreover, challenge the underlying foundations of the rule of law ideal in undermining the legal equality of States by disregarding other States' rights and freedoms of the seas. 79 Notwithstanding that cooperation and competition are polar opposites, scholars have recommended strategies of cooperation amidst overlapping maritime claims. One strategy is to establish a network of marine protected areas (MPAs) in the SCS that may support different ecosystems as well as preserve areas from human impact to allow natural resources to recover from stress.…”

Facing the Ravenous Sea Dragon: How Weaker Nations Confront Chinese Coercion in the South China Sea

“…Militarily, it has accelerated its military power under the label of "active defense" to exert its coercive and aggressive pressure (Fravel, 2019;Patalano, 2019) and conducted more frequent military exercises and activities. Legally, Beijing tried to utilize international law as a tool to dominate the SCS but there are flaws in its approach (Guilfoyle, 2019). In doing so, "...after the Second World War, China redefined borders, assembled historical evidence, and exercised military force to create their territorial claims, including the renaming of islands."…”

“…Most scholars on the SCS disputes agree that Chinese maritime claims, often associated with the "nine-dash" line, are ambiguous (Dutton, 2011;Fravel, 2011;Beckman, 2013). From the perspective of international law, many legal scholars and especially the 2016 Arbitral Tribunal have rejected Chinese maritime claims of "historic rights" or "historical rights" in the SCS or any rights attached to the "nine-dash" line, considering them as inconsistent with UNCLOS and violation of other states' sovereign rights over their EEZs or continental shelves (Beckman, 2013;Schofield, 2016;Dupuy & Dupuy, 2017;Kardon, 2018;Guilfoyle, 2019).…”