A Sea Change:Problematizing the “Gray Zone” in the South China Sea

Throughout discussions of the geopolitical conflict in the South China Sea (SCS), analysts tend to shy away from using the term “armed conflict” to describe actions taken within the maritime domain. Analysts have relegated such actions to the “gray zone”; a legal ambiguity between the threshold reaching an armed attack and the threshold for reaching an armed conflict. This essay argues that the law of armed conflict (LOAC, commonly referred to as international humanitarian law or IHL) actively regulates more actions in the SCS than some legal analysts let on, and that the LOAC is best suited to regulate actions over that of strictly maritime law. Through an analysis of various incidents between claimants in the SCS, it is revealed that the LOAC effectively lowers the threshold for reaching a state of armed conflict, allowing for more firm arbitrations to be made on the basis of constituting armed attacks rising to the level of armed conflict, as well as determining contributions to an armed conflict.