Journal Article

The Law’s Potential to Break—Rather Than Entrench—the South China Sea Deadlock?

Rob McLaughlin and Hitoshi Nasu

in Journal of Conflict and Security Law

Volume 21, issue 2, pages 305-337
Published in print June 2016 | ISSN: 1467-7954
Published online August 2015 | e-ISSN: 1467-7962 | DOI: https://dx.doi.org/10.1093/jcsl/krv013
The Law’s Potential to Break—Rather Than Entrench—the South China Sea Deadlock?

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The complex matrix of territorial claims and counter-claims, and associated resource and maritime disputes, which characterizes the tension in the South China Sea points to a deadlocked, and in some respects apparently intractable, dispute. This article seeks to examine a series of rule-based alternative options aimed at finding or creating fractures in this deadlock—points that may offer pathways, or introduce new possibilities, into the management of the dispute, with a view to breaking the deadlock on a limited scale or in relation to a limited set of issues. The analysis begins with a brief overview of the ways in which law can facilitate initiative, an attribute often forgotten when law is understood only as the language by which disputes are expressed and entrenched. The article then argues that treaty-based cooperative models—namely, the Antarctic regime model and the joint development model—for escaping the deadlock in the South China Sea are unlikely to succeed, at least in the short term, not least because they do not offer mechanisms or opportunities to overcome the regional introspection underpinning the deadlock. Finally, the article outlines four rule-based and legally expressible alternative options for finding or creating fractures in the deadlock.

Journal Article.  15436 words. 

Subjects: Military and Defence Law ; Police and Security Services ; Terrorism and National Security Law ; Use of Force, War, Peace and Neutrality

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