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 possible way into the question is to examine the extent to which there is a discursive commitment among states that their maritime security practices should comply with international law. International law thus provides the tools for legal argument for or against the validity of certain security approaches. The proposition is thus not only that international law matters to maritime security, but legal argument as a practice does as well. The claims advanced here, to borrow from Kennedy, are essentially fourfold. First, law has a ‘legitimacy effect’: that is, ‘when people accept that something is “legal,” it seems legitimate’. Second, as a consequence of the legitimacy effect, ‘legal claims are often an effective tool for defeating rivals and consolidating gains’. Third, international law ‘provides a [shared] language for advocacy, negotiation and conflict resolution.’ Fourth, ‘law is relevant for people in struggle because legal ideas, rules, and institutional arrangements structure the balance of power among individuals or groups [or states], shaping the terrain on which they come into conflict’. These themes will be explored through the case study provided by the South China Sea dispute.

Keywords: international law, international law of the sea, lawfare, South China Sea, China, international law and international relations