Hard Power and International Law in the South China Sea

By Gustavo A M Vieira.
Phd Student in Law at Federal University of Bahia. Lawyer

Two naval task forces captained by nuclear aircraft carriers.

This was the “business card” sent by Biden Administration to the South China Sea. The recent power demonstration of the American Navy happens less than a month after the inauguration of the new United States’ president and signals Washington’s willingness to oppose Beijing’s claims in the region.

The South China Sea consists of an area of approximately 3.5 million square kilometers in which territorial claims from several Southeast Asian countries overlap, including Malaysia, Philippines, Brunei, Vietnam and, notably, China. The region, rich in fishing resources and potential oil and gas reserves estimated at billions of dollars, concentrates maritime shipping routes through which passes about 1/3 of world trade[1].

The geopolitical dispute for the control of this region has been generating controversies about the limits and potential of International Law of the Sea. The systematic construction and militarization of artificial islands by China in reefs, rocks, and low-tide elevations – claiming sovereign rights for the full extent of them – is unprecedented and flagrantly clashes with Montego Bay Convention’s dispositions, that governs the matter. Beijing’s refusal to comply with an unfavorable arbitral award decision issued by the Permanent Court of Arbitrage[2], the treaty’s chosen dispute settlement body, makes the issue even more relevant.

Chinese actions do not seem to be based purely on hard power aspects, unrelated to the Law of Nations. The deliberate creation of a modus vivendi favorable to the ambitions for control in the region may, in effect, materialize over time a repeated practice (consuetudo) with an opinion of law or necessity (opinio jure sive necessitatis). In other words, the actions of China may in the long run become a customary norm, and as such, it may eventually derogate previous conventional norm, because of the hierarchical parity of primary sources in international law. Beijing’s diplomatic offensive to obtain recognition of its alleged rights in the South China Sea seems to confirm this idea.

The United States current muscle-flexing in this Southeast Asia standoff is not without implications of international law either. In carrying out the so-called “Free Navigation Operations in the Seas”, besides Realpolitik imperatives, Washington deliberately uses a legal rationale, which aims precisely to oppose possible Chinese juridical arguments. In fact, although it is recognized that custom can bind third parties, it does not apply to that subject who, since before its emergence, was already opposed to its formation. By acting as a “persistent objector”, the Americans prevent any claim of control over the South China Sea be invoked against them.

[1] COUNCIL OF FOREIGN AFFAIRS. China’s Maritimes Disputes. Available at: https://www.cfr.org/chinas-maritime-disputes/#!/chinas-maritime-disputes?cid=otr-marketing_use-china_sea_InfoGuide. Accessed in March 2^nd 2021

[2] PERMANENT COURT OF ARBITRATION. The South China Sea Arbitration (The Republic of Philippines v. The People’s Republic of China). Available at: https://pca-cpa.org/en/cases/7/. Accessed in March 2^nd 2021.