The South China Sea as a Challenge to International Law and to International Legal Scholarship
36 Pages Posted: 4 Feb 2019
Date Written: December 31, 2018
The 2016 Arbitration Award of the PCA has set out the maritime legal questions in the South China Sea in great detail. This paper takes the Award as a starting point, but rather than focussing on maritime legal issues, it uses the South China Sea as a paradigm for the challenges that face not only international law as a normative order, but also international legal scholarship. First, the conflict in the South China Sea has weighty implications for the law of the sea, which, historically, has primarily served the interests of (Western) sea-faring nations. More importantly, the conflict in the South China Sea threatens the safeguarding of peace as one of the main tasks of international law, setting the United States against China in a reiteration of previous historical conflicts. These developments should serve as a cautionary contrast to the prevailing narrative of international law as a progressively successful normative order. The paper will analyse two aspects of that narrative: the gradual deterritorialisation and the advancing constitutionalisation of international law. It will be argued that while such concepts have their merits, the South China Sea exposes the (considerable) limitations that they are still subject to.
Keywords: South China Sea, Chinese Foreign Policy, UNCLOS, Territorial Disputes, Constitutionalisation, Dispute Settlement, ITLOS, History of International Law, Deterritorialization, Unequal Treaties
JEL Classification: K33
Suggested Citation: Suggested Citation