How America Should Wage 'Lawfare' in the South China Sea

"The United States has not employed international law as effectively as it could to stop China’s scramble for mastery over the South China Sea."

In the last several months, China has set an expansionist and escalatory strategy into motion in the South China Sea. The embattled region has long played host to a fierce territorial dispute between six nations—China, Brunei, Malaysia, the Philippines, Taiwan, and Vietnam—powered by nationalism, energy, and great power politics. But in the last year, Beijing has inflamed an already tense dispute through an unprecedented policy of land reclamation. This latest tactic comes on the heels of a number of other aggressive moves by Beijing.

Unsurprisingly, the United States has strenuously opposed the latest provocations. Washington is determined to stop China from gaining control of the contested territories and waters of the South China Sea through any method except a fairly negotiated settlement among the six primary claimants.

So far, this strategy has not succeeded. American policymakers understand that they must integrate several different tools in order to stand a chance of influencing China’s behavior. Yet Washington has failed to maximize the value of one particular instrument—international law—in its campaign. Its approach has been too blunt: the United States has appealed to “international law” as a basis for resolving the dispute without recognizing that different branches of international law may be more—or less—helpful for calming the turbulent waters of the South China Sea.

Two Bodies of Law

American policymakers have frequently urged the claimants to follow “international law,” implying that the entire dispute can be resolved by adhering to a single and undifferentiated body of law. Rhetorically, this approach has some merit—it distinguishes law from coercion, and encourages the claimants to settle their disputes peacefully (in theory, at least).

However, not all laws are created equal, at least in terms of their applicability to the South China Sea. In fact, two overlapping but independent sets of laws are at play—the law of sovereignty and the law of the sea.

Each tackles different aspects of the conflict. The law of sovereignty governs the question of territorial ownership—who owns which islands and reefs. It decides which claimant is entitled to reign over each of the physical features that dot the South China Sea. In contrast, the law of the sea (also known as maritime law) governs the question of maritime entitlements—in other words, which claimant (if any) can lawfully exert jurisdiction over the waters and seabed that are adjacent to any given piece of territory.

Although both bodies of law touch on territorial questions, the laws can operate independently from each other. With some limited exceptions, a court could decide on the breadth of an island’s maritime zones without knowing who owns it, and vice versa.

The United States has failed to make the most of the difference between the two sets of laws. Of course, this is not to suggest that international law is inapplicable except where convenience demands it. Rather, international law should be understood as one method of dispute resolution among many. When prodding the claimants toward a peaceful resolution of the dispute, Washington has a choice: it can emphasize international law as a basis for political settlement, or it can emphasize other factors—such as more abstract notions of “justice” or even raw power—instead.

Thus far, American policymakers have often encouraged the claimants to resolve the conflict on the basis of “international law” writ broadly without specifying which bodies of international law can provide the best grounds for resolving the dispute. This omission has serious costs: by encouraging the disputants to resolve the dispute through recourse to “international law”—including the law of sovereignty—the United States may be unwittingly prolonging the dispute and encouraging aggressive behavior. Likewise, by not stressing the law of the sea enough on its own, Washington may be missing an opportunity to help the smaller claimants band together against China’s recent bout of regional assertiveness.

The Sources of Instability in the Law of Sovereignty

When the United States urges the claimants to follow “international law,” it encourages them to comply with a number of bodies of law, including the law of sovereignty. But contrary to the conventional wisdom, the law of sovereignty exacerbates the South China Sea dispute: it incentivizes claimants to escalate the conflict, and it appears illegitimate because it fails to align with common sense and the region’s history.

Simplifying a little, a country can acquire sovereignty over territory through one of five methods:

  1. Accretion – Natural processes like volcanic eruptions can create new land adjoining territory that the state already controls.

  2. Cession – One state can transfer authority over its territory to another.

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