Navigating The South China Sea Dispute Through UNCLOS

The South China Sea has historically been an area of competing maritime claims as well as a key area for international shipping, currently carrying more than half the world's international trade. China, to the consternation of its neighbors, has been undertaking a variety of construction activities in the South China Sea, such as constructing artificial islands on top of reefs, rocks, and other formations. The United States and several of China's neighbors, particularly the Philippines, have objected to these practices. This dispute may lead to problems for vessels transiting the South China Sea. Additionally, it may lead to an opportunity for supporters of the United Nations Convention on the Law of the Sea ("UNCLOS") to put pressure on the U.S. Senate to ratify, particularly since the U.S.' stance on the South China Sea issue is supported by UNCLOS.

While the policy debate surrounding the dispute in the South China Sea is defined by strategic, military, and foreign policy considerations, the legal framework for any path forward ultimately finds its basis in UNCLOS. Although the United States has signed UNCLOS, the U.S. Senate has not provided the "advice and consent" needed to ratify the treaty under the U.S. Constitution. UNCLOS' proponents argue that UNCLOS goes a long way to bolstering the U.S.' position on the South China Sea, particularly in limiting the claiming of a territorial sea around islands and protecting rights of innocent passage and freedom of navigation. Given these facts, the current dispute over the construction of islands in the South China Sea may give further attention for the U.S.' ratification of UNCLOS.

Background

Within the South China Sea, there are hundreds of reefs, rocks, atolls, cays, and other outcrops, which are subject to several, potentially competing, maritime claims from the surrounding countries of Vietnam, the Philippines, Malaysia, Brunei, and China, among others. Since early 2014, China has quietly undertaken land reclamation and construction activities on some of these outcrops, heightening tensions between the United States and China, and leading America to condemn these activities in official statements. While China maintains that it is merely asserting its sovereign rights in accordance with international law, the United States and other countries have cited concerns relating to the militarization of these outcrops. China counters that its actions are not novel under international law, and...