Moreover, littoral states increasingly recognize that the South China Sea is suffering an environmental crisis with real economic consequences. Marine biologists estimate, for example, that fishing will need to be reduced 50 percent to sustain key species, indicating this is an issue no state can handle on its own. Ironically, a mutually adverse judgment of an independent tribunal (or a settlement agreed to in the shadow of legal proceedings) might actually encourage states to cooperate on environmental protection, which itself could set the stage for further confidence-building measures such as cooperation on joint development of resources, disaster response, piracy or other maritime challenges.
None of this is to suggest that litigating states would abandon parallel strategies and hard-power alternatives the moment a claim is filed. International law is not a cure-all for power politics, and the outcome of any legal proceeding would not be preordained. But with the geopolitical stakes increasing by the day as satellites reveal previously uninhabitable rocks growing into full-fledged military outposts, don’t be surprised if the next phase of “lawfare” in the South China Sea plays out in the tactical arena of environmental protection.
Robert Williams is a Research Scholar in Law and Senior Fellow of The China Center at Yale Law School.
Image: Flickr/Official U.S. Navy