Sean A. Mirski practices a combination of appellate and international law at Arnold & Porter in Washington, DC, with a focus on public international, national security and foreign relations law. He is also a Visiting Scholar at the Hoover Institution. He clerked for Justice Samuel A. Alito, Jr., on the United States Supreme Court, and for then-Judge Brett M. Kavanaugh on the United States Court of Appeals for the D.C. Circuit. He also served as Special Counsel to the General Counsel of the U.S. Department of Defense. He graduated magna cum laude from Harvard Law School, where he served as Supreme Court Chair for the Harvard Law Review.
Subscribe to this Lawfare contributor via RSS.
Last week, Philippine Foreign Secretary Albert del Rosario made his opening statement before the tribunal overseeing Manila’s arbitration against China. (As regular readers will remember, the Philippines has brought its case under the auspices of the U.N. Convention on the Law of the Sea (UNCLOS).
As I explained in this legal primer, the South China Sea dispute has primarily revolved around two distinct legal quarrels: a dispute over territory and a dispute over the substance and application of maritime law.
Over at The National Interest, I’ve written an article parsing this distinction and what it means for the American approach to the South China Sea. I argue that
Much anticipated for any number of reasons, Zivotofsky was perhaps most awaited for the valuable contribution it was to make in the form of its analysis of the scope of exclusive executive power. This analysis was expected to begin to answer a key question lingering after Justice Jackson’s Youngstown concurrence.
Although the United States will often urge the claimants to resolve the South China Sea dispute in accordance with “international law” writ broadly, the conflict is governed in reality by a number of different bodies of international law. Building on the historical backgrounder in an earlier post, I will lay out here the two primary legal quarrels at the core of the South China Sea conflict: the dispute over territory and the dispute over the substance and application of maritime law.
In his famous Youngstown concurrence, Justice Jackson began by reflecting that:
A small outcropping of sand occasionally breaks the vast expanse of the South China Sea. These islands are modest, even diminutive, but they form the core of a fierce territorial dispute among six primary claimants: Brunei, China, Malaysia, the Philippines, Taiwan, and Vietnam. These claimants also clash over their rights and duties in the nearby waters as well as the seabed underneath.
The South China Sea ranks high on any list of the world’s geopolitical hotspots. But though the region has been volatile for centuries, the last two decades have witnessed a subtle shift in the underlying drivers of conflict.
Over at The National Interest, I've written an article examining a significant change in the contours of the dispute.