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How America Should Wage ‘Lawfare’ in the South China Sea

Jun 05 , 2015

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.

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