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on cases and developments in law and the legal system.
The Legal Underpinnings of the South China Sea Dispute: Could Partnerships Be Biden’s Answer to the Conflict?
By Lyndsey Reeve
Lyndsey Reeve is a sophomore in the College of Arts and Sciences at the University of Pennsylvania studying International Relations.
Controlling the South China Sea is an imperative for actors in the Indo-Pacific. Hotly contested for decades due to its economic and geopolitical importance, the region is home to fierce displays of military might (so-called “gunboat diplomacy”). Under the surface, however, lies a complex, decades-old legal battle. To defend the rule of law, American policymakers must build stronger partnerships in the region and foster alternatives that promote economic growth without authoritarian control.
The South China Sea is a trade lifeline, transporting roughly a third of worldwide shipping . The region acts as a new Silk Road, facilitating exportation of Chinese infrastructure to less developed countries, thus supporting its rise to Eurasian dominance.
China’s basis for controlling the region is historical, not legal. Historically, the Chinese empire had a tributary system, bolstering its influence by permitting nearby nations to self-govern as long as they submitted to the Chinese emperor and gave him gifts. Beijing cites a 1949 map (later modified in 1962 after China ceded the Gulf of Tonkin), that created a “nine-dash line,” granting China substantial territories including the Paracel Islands and Spratly Island .
In domestic law, China uses intentionally ambiguous language that expands Chinese control over the disputed territories, describing “indisputable sovereignty” over “adjacent” and “relevant waters,” neither of which are defined in international law. These phrases, albeit vague, lend domestic credence to China’s control and circumvent the issues more specific claims would have in international court .
However, according to the 1982 UN Convention of the Law of the Sea (UNCLOS), a convention constructed to address maritime disputes, countries only have sovereign claim to waters within twelve miles of their territories. Although Beijing is party to this convention, it claims an unlawful 200 mile “exclusive economic zone,” or EEZ, granting it control of vast natural resources . Furthermore, according to a 2016 suit in the Permanent Court of Arbitration levied by the Phillipines against the People’s Republic of China, China’s rights to the region “were extinguished to the extent they were incompatible with the exclusive economic zones provided for in the convention” . However, this decision lacks an enforcement mechanism.
ASEAN, or the Association of Southeast Asian Nations, is looking to change that. This group—which includes the Philippines, Vietnam, Indonesia, Cambodia, Laos, Myanmar, Singapore, Thailand, Malaysia, and Brunei—has attempted to draft a regional Code of Conduct (COC) with China.
Resolving this dispute regionally may appeal to Beijing to avoid concerns of undue influence by foreign non-claimants (like the U.S.), but little progress has been made. A regional economic powerhouse, China hopes to retain its sovereignty, and a binding COC could challenge that. Disagreement on dispute settlement mechanisms and conflict management have also emerged, and differences among ASEAN powers have hindered unity .
In the past twenty-five years, American policy has shifted dramatically from concern regarding trade implications to outright condemnation of the PRC for exploiting neighboring states. In 1995, the U.S. focus in the South China Sea was simply preserving stability and peace. American policymakers “[took] no position on the legal merits of the competing claims to sovereignty over the various islands, reefs, atolls, and cays in the South China Sea,” only voicing concerns regarding potential trade restrictions . The Obama administration backed UNCLOS and endorsed the Philippines' right to take China to international arbitration, but “couched its responses in careful legalese” to avoid confrontation .
During the Trump administration, Secretary of State Pompeo took a more hard-line approach, openly accusing the PRC of glaring violations of international law in the area. Drawing on universal Lockean principles of state sovereignty, Pompeo called Beijing a “bully” with “predatory world view” designed to corral relatively weak coastal states in Southeast Asia . This shift is likely heightened by other ideological grievances, such as broader distaste with China’s rise as an economic rival and human rights abuses in Xinjiang and Hong Kong.
This new American attitude toward the PRC’s illegal territorial ambitions is a rare continuity between the Trump and Biden administrations. President Biden has focused on partnerships to counter China’s military posturing in the region, particularly promising to bolster the U.S. alliance with Japan. Secretary of State Blinken has also openly rejected China’s claims to the region, saying they surpass maritime zones allowed under international law. 
Undermining these claims will play a huge role in confronting what geopolitical expert Parag Khana calls the “infrastructure arms race” . If the U.S. wants to win this economic stand-off for global influence, the Biden administration must support infrastructure and industrialization, partnering with vulnerable countries susceptible to China’s influence.
Freedom of navigation exercises in the regions symbolize an enduring military commitment to defending open seas, but China’s unlawful claims to the South China Sea are a symptom of an effort that spans economic, military, and human rights arenas. Thus, promoting democratization and defending the free world’s rule of law will demand more than militarism. Instead, the U.S. should recommit to assisting countries on the verge of autonomy, supporting their independence, perhaps via privatization of industry and alternative “Silk Roads.”
The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
 “How Much Trade Transits the South China Sea?” China Power Project. Center for Strategic and International Studies , August 26, 2020. https://chinapower.csis.org/much-trade-transits-south-china-sea/.
 Taoqeer, Hamzah. “South China Sea Dispute: In Light of International Law of the Seas.” Modern Diplomacy. Modern Diplomacy, August 18, 2020. https://moderndiplomacy.eu/2020/08/19/south-china-sea-dispute-in-light-of-international-law-of-the-seas/.
 Lohschelder, Sarah. “Chinese Domestic Law in the South China Sea.” Chinese Domestic Law in the South China Sea | Center for Strategic and International Studies. Center for Strategic and International Studies. Accessed March 22, 2021. https://www.csis.org/npfp/chinese-domestic-law-south-china-sea.
 Costlow, Matthew R. “Gunboat Diplomacy in the South China Sea.” USAFA. USAFA, 2012. https://www.usafa.edu/app/uploads/Costlow-South-China-Sea-22-Jan-2013.pdf.
 “THE SOUTH CHINA SEA ARBITRATION (THE REPUBLIC OF THE PHILIPPINES V. THE PEOPLE’S REPUBLIC OF CHINA).” Press Release. https://docs.pca-cpa.org/2016/07/PH-CN-20160712-Press-Release-No-11-English.pdf, July 12, 2016.
 Nguyen Minh Quang for The Diplomat. “Saving the China-ASEAN South China Sea Code of Conduct.” – The Diplomat. for The Diplomat, June 28, 2019. https://thediplomat.com/2019/06/saving-the-china-asean-south-china-sea-code-of-conduct/.
 McDevitt, Michael. “The South China Sea: Assessing U.S. Policy and Options for the Future.” CNA. CNA, November 2014. https://www.cna.org/cna_files/pdf/iop-2014-u-009109.pdf.
 “How Significant Is the New U.S. South China Sea Policy?” How Significant Is the New U.S. South China Sea Policy? | Center for Strategic and International Studies. CSIS, December 3, 2020. https://www.csis.org/analysis/how-significant-new-us-south-china-sea-policy.
 Pompeo, Mike. “U.S. Position on Maritime Claims in the South China Sea - United States Department of State.” U.S. Department of State. U.S. Department of State, December 1, 2020. https://www.state.gov/u-s-position-on-maritime-claims-in-the-south-china-sea/.
 McCurry, Justin. “US Takes Aim at China Territorial Claims as Biden Vows to Back Japan.” The Guardian. Guardian News and Media, January 28, 2021. https://www.theguardian.com/us-news/2021/jan/28/us-takes-aim-at-china-territorial-claims-as-biden-vows-to-back-japan.
 Khanna, Parag “Will All Roads Lead to China? - FPRI Events.” Foreign Policy Research Institute, September 11, 2020. https://www.fpri.org/event/2020/will-all-roads-lead-to-china/.