Introduction

“I don’t need international law“ [1]. This statement, attributed to the world’s most powerful political leader earlier this year, reflects a fundamental tension between power and law in international relations. While law cannot exist without power, politics likewise cannot function without legal frameworks. In this sense, international law itself constitutes a form of power by shaping and constraining how states exercise authority [2].

From this perspective, the maintenance of a balance of power based on the sovereign equality of states under Article 2(1) of the UN Charter can be regarded as the central concern of international law and a fundamental safeguard against war. Throughout the twentieth century, military capability became the decisive measure of state power, while ideology, economic strength, and scientific progress were valued primarily in relation to their contribution to military potential. Ultimately, only states capable of surviving a nuclear strike and responding with an equally devastating counterstrike qualified as true world powers. Following the Second World War, this condition applied essentially only to the United States and the Soviet Union. The resulting nuclear stalemate – most notably demonstrated during the Cuban Missile Crisis of 1962 – created a balance of power that provided the stability and incentive necessary for international law to expand and develop into its modern form [3].

One product of this period was the negotiation of the United Nations Convention on the Law of the Sea (UNCLOS) between 1973 and 1982, often described as the largest diplomatic conference ever convened by the United Nations [4].

This article examines whether international law, which flourished under conditions of relative power equilibrium, is now challenged by renewed great-power competition. UNCLOS and the South China Sea dispute serve as the basis for a brief discussion of the relationship between international law and shifting geopolitical power structures.

Methodology 

This article adopts a doctrinal and contextual approach. It examines the historical development of UNCLOS and uses the South China Sea dispute, particularly the 2016 South China Sea Arbitration, as a case study to assess how shifting geopolitical power structures affect the authority and effectiveness of international law.

The Power Equilibrium Embedded in UNCLOS

To determine whether the current return to power politics is destabilizing the compromises institutionalized in UNCLOS, it is necessary to examine the Convention’s historical development.
Beginning with Hugo Grotius’ Mare Liberum (1609), the modern law of the sea evolved over centuries before culminating in the Third United Nations Conference on the Law of the Sea (UNCLOS III). Building upon the 1958 Geneva Conventions, UNCLOS represented the first successful attempt to establish a comprehensive and universal legal framework often described as the “constitution for the oceans” [5]. 

  This development should not be understood as the harmonious culmination of a linear legal process. Rather, UNCLOS emerged from a unique historical moment characterized by a relatively stable global balance of power alongside growing awareness of future geopolitical realignments. The shortcomings of earlier conventions – particularly the rigid division between narrow territorial seas and the vast high seas – became increasingly problematic as coastal states sought greater control over offshore natural resources. At the same time, advances in seabed mining technology, largely accessible only to developed states, and rising concerns about marine environmental protection intensified the demand for a new legal order [6].

  With 320 articles and nine annexes, UNCLOS codified and expanded large parts of customary international law for its 168 state parties. In doing so, it also limited the flexibility traditionally enjoyed by powerful states in shaping and interpreting customary international law of the sea, thereby functioning to some extent as an equalizing framework within the international legal order [7]. UNCLOS is additionally often described as an „agent of maritime justice“. Yet this characterization raises questions given the unequal distribution of political, economic, and military power among the more than 150 participating states during the negotiations. Since many substantive discussions occurred informally and without comprehensive records, it remains difficult to determine precisely how power disparities shaped the final compromises. Nevertheless, the informal structure of negotiations is generally regarded as beneficial, as it encouraged boader participation and practical problem solving within the conference committees and negotiation groups [8].

  It is reasonable to assume that existing global power imbalances influenced the drafting process. Historically, weaker states often adopted legal positions advanced by dominant powers, whether because they lacked the capacity to resist, benefited from compliance, or were effectively pressured into acceptance. This dynamic was particularly relevant for many African, Asian, and Latin American states. By contrast, powers such as the United States, the Soviet Union, the United Kingdom, and France entered the negotiations with far greater political and technological influence [9].

  From today’s perspective, it is striking that China was still widely regarded as a developing state with limited influence on the international agenda. China’s later dissatisfaction with aspects of the maritime order – particularly in the South China Sea – is partly rooted in the perception that its relative weakness at the time prevented it from shaping regional arrangements according to its interests [10].

  As mentioned above, the ongoing Cold War also formed the broader geopolitical background of UNCLOS. However, ideological divisions between East and West played a comparatively limited role in the negotiations, as both the United States and the Soviet Union reportedly shared similar maritime interests with regard to the growing influence of developing states, whose numerical strength forced established powers to accommodate broader demands for participation in shaping the international legal order [11].

  At the same time, the developed states successfully promoted consensus-based decision-making over majority voting, which increased the likelihood of widespread acceptance of the Convention.

  Critics argue that this pressured developing states into sacrificing the advantages of numerical majority in exchange for the prospect of a universally accepted legal framework [12].

  Nevertheless, the negotiations were not simply dominated by major powers. UNCLOS III was also shaped by the emergence of regional and inter-regional interest groups that cut across the traditional divide between developed and developing states. Through internal bargaining within these groups, states coordinated positions, reduced the number of competing proposals, and facilitated consensus-building within the broader package-deal negotiations. Their inner negotiation of differences in sub groups established procedures to adopt common positions which reduced the number of proposals before the conferences and helped identify issues and clarify positions. This was not least important in front of the fundamental idea to give preference to consensus through a package deal. It also [13] ensured that developing states could present a more unified front and exert influence. In this context, the „Group of 77“, consisting of corresponding states, had a profound impact on the First and Second Committee relating to a 200-nautical-mile EEZ [14].

  Although a definite assessment of the role of power in the creation of UNCLOS remains difficult, the Convention itself reflects a carefully negotiated equilibrium between competing interests. This balance is evidenced not only by the broad participation of both developed and developing states, but also by the enduring perception of UNCLOS as one of the most successful and universal ly accepted frameworks in international law [15].

The South China Sea – A Case Study of Emerging Structural Rivalry

If one examines the major events of the past decade, one can discern patterns that permit broader conclusions about the state of international law. In the case of UNCLOS,  it goes without saying that the South China Sea Arbitration of the Annex VII Arbitral Tribunal in 2016 is of particular contextual interest [16].

  Before examining the conflict itself, it is important to stress what has been already hinted above: China considers the current maritime status quo to reflect the post-World War II distribution of power, and therefore to largely serve the interests of the United States and other Western states. Consequently, China argues that UNCLOS failed to sufficiently accommodate the interests of many developing countries at the time. China therefore seems eager to gain status in the Indo-Pacific by its position within the law of the sea, assuming a leading role in the development and reform of the existing UNCLOS framework [17].

  The South China Sea, which extends across a region of 3,500,000 square kilometers, bordered by China, Taiwan, the Philippines, Vietnam, Brunei, Indonesia, Singapore and Malaysia, and containing around 250 geographic maritime features, like islands, atolls, cays, and reefs, is of considerable strategic importance. This is primarily due to its role as a key maritime corridor linking Northeast Asia with the Indian Ocean and the Middle East, through which approximately one-third of global trade and half of the world’s shipping passes. For China, the region is not least significant in regard to its efforts to curb United States influence in the area. This is driven by the circumstance that less influential players, such as the Philippines and Taiwan, are turning to the United States or states like India to form a regional counterweight to Chinese influence. This concern is not without merit, considering that China has long viewed itself as the “Middle Kingdom“ and does not necessarily see Asia’s historical international system as being based in sovereign equality – as established by post-World War II diplomacy – but rather conceives of it as hierarchical [18].

  It is therefore of no wonder that competing claims over overlapping EEZs have remained continuously disputed. Adding to that are the region’s abundant fish stocks and presumed oil and gas reserves.

  While UNCLOS established rules for maritime delimitation, it has been unable to resolve the underlying sovereignty disputes in the region. Tensions have instead been further intensified by the establishment of military outposts on small islands and the construction of artificial islands as well as low-tide elevations, which are intended to reinforce territorial claims, though greater than permitted by UNCLOS. Drawing on historical references and maps dating back to the fifteenth century, China asserts claims over large parts of the South China Sea through the so-called “Nine Dash Line“. Even though China, which ratified UNCLOS, invokes Article 310 – which allows states to make declarations provided they do not modify the Convention – UNCLOS emphasizes the comprehensive primacy of its provisions over historical interpretations [19].

  Another key issue that must not go unmentioned is the differing interpretations of the EEZ concept with regard to “freedom of navigation“ between China and the United States. While China interprets this fundamental legal principle very restrictively, adopting a “mare clausum“ approach under which only merchant ships are permitted to enter its EEZ, the United States’ interpretation is very broad. Although the United States has not ratified UNCLOS, it strongly advocates for the „mare liberum“ principle. This is primarily because it allows its Navy to operate in approximately 30% of the world’s oceans, but especially with regard to the South China Sea, as commercial goods worth around 1 trillion dollars pass through these waters. The United States has strengthened its naval presence in the Indo-Pacific over the past decade, officially to enforce freedom of navigation. Beyond that, however, it is crucial for the United States to demonstrate its military power and underscore its readiness to defend its regional allies [20].

  Turning now to the 2016 South China Sea Arbitration in the case brought by the Philippines against China, the tribunal concluded that the “nine-dash line” claim to historic rights in most of the South China Sea had no legal basis under UNCLOS [21] [22].

  Nevertheless, though this arbitration was inter partes and therefore without erga omnes effect, it clarified that maritime entitlements must derive from the Convention rather than from broad historical assertions. The tribunal also determined that several disputed maritime features in the Spratly Islands were legally rocks or low-tide elevations and not fully entitled islands, meaning they could not generate extensive EEZs. Furthermore, the tribunal found that China had violated the Philippines’ EEZ by causing environmental harm through large-scale island-building and the destruction of coral reefs [23].

  Although the award is legally binding under UNCLOS, and was internationally recognized as a significant affirmation of the rule of international law, China did not take part in the proceedings and refused to recognize the decision. China maintained that the tribunal lacked jurisdiction because the dispute concerned territorial sovereignty and maritime delimitation, matters that it had excluded from compulsory dispute settlement through its Article 298 declaration under UNCLOS.

  Ultimately, the ruling therefore failed to defuse the situation in the South China Sea. The situation has further intensified since, with increased military presence from both China and the United States [24].

Conclusion

UNCLOS demonstrates that comprehensive international legal regimes are most likely to emerge under conditions of relative geopolitical equilibrium. Negotiated during the Cold War, the Convention embodied a carefully balanced compromise between competing maritime interests and has since become one of the cornerstones of the international legal order.

  The South China Sea dispute illustrates how renewed great-power competition challenges this equilibrium. Although the 2016 South China Sea Arbitration reaffirmed the legal framework of UNCLOS, China’s rejection of the award exposed the limits of international law where fundamental strategic interests are at stake. At the same time, the United States is currently challenging the very validity of international law, as the opening quote makes clear. With its interpretation of freedom of navigation, the United States is also at least challenging key UNCLOS principles, despite remaining outside the Convention, highlighting the complex relationship between legal legitimacy and geopolitical power. Both China and the United States, however, continue to rely on legal argumentation, illustrating that international law remains an indispensable source of legitimacy even where compliance is contested.

  Until recently, China’s interpretation of the law of the sea appeared unlikely to gain broad international acceptance and was therefore regarded as having only limited influence on the UNCLOS framework. Nevertheless, the conduct of major powers has consequences extending beyond the immediate dispute. When influential states selectively disregard or reinterpret established rules of international law, they inevitably affect the incentives of smaller states. In an international system increasingly characterized by asymmetries of power, states lacking comparable political or military influence may find it more advantageous to align themselves with dominant actors than to insist upon strict adherence to legal norms. Such developments risk weakening the authority and universality that have long distinguished UNCLOS and the rule of international law.

  This concern becomes particularly acute when states that have once been principal architects and defenders of the post-war international legal order begin to question the normative framework they once helped to consolidate. While this observation must be qualified in the context of UNCLOS by the United States’s unique position as a non-party that has nevertheless traditionally accepted many of the Convention’s provisions as customary international law, the broader trend remains significant. Ultimately, the future of UNCLOS reflects a broader question concerning the resilience of the rules-based international legal order in an era of renewed power politics.

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[8] Adede, A. ‘The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea – A Drafting History and a Commentary’. (1987). 1st Edition. Martinus 

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[10] Schandorf, S. ‘Power Relations and Maritime Justice: An Exploration of UNCLOS Negotiations’ [Online]. (2024). Ocean and Society, Vol. 1, p. 2-5. [Accessed on 10 May 2026] Available from https://doi.org/10.17645/oas.8791; Tanaka, Y. ‘The International Law of the Sea’. (2019). Edition No. 3. Cambridge University Press, 2019, 635, p. 32. ISBN 978-1-108-42421-9; Schwarzenberger, G. ‘Zur Neuverteilung politischer Macht in der heutigen Welt’ [Online]. (1965) Bundeszentrale für politische Bildung, APuZ 22. [Accessed on 16 May 2026]. Available from https://www.bpb.de/shop/zeitschriften/apuz/archiv/527210/zur-neuverteilung-politischer-macht-in-der heutigen-welt/; Seo, Y. ‘The shift in power distribution and its influence on the law of the sea’ [Online]. (2024) Penn Carey Law: Legal Scholarship Repository, p. 15. [Accessed on 16 May 2026]. Available from https://doi.org/10.58112/jil.45-1.1

[11] Schandorf, S. ‘Power Relations and Maritime Justice: An Exploration of UNCLOS Negotiations‘ [Online]. (2024). Ocean and Society, Vol. 1, p. 6. [Accessed on 10 May 2026] Available from https://doi.org/10.17645/oas.8791; Seo, Y. ‘The shift in power distribution and its influence on the law of the sea’ [Online]. (2024). Penn Carey Law: Legal Scholarship Repository, p. 15. [Accessed on 16 May 2026]. Available from https://doi.org/10.58112/jil.45-1.1

[12] Stavropoulos, C. ‘The Third Conference on the Law of the Sea in a Historical Perspective‘. In: Rozakis, C. & Stephanou C. ‘The New Law of the Sea‘. (1983). 1st Edition. Amsterdam [u.a.] : North-Hollandp. p. 13. ISBN 0-444-86804-6; Schandorf, S. ‘Power Relations and Maritime Justice: An Exploration of UNCLOS Negotiations’ [Online]. (2024). Ocean and Society, Vol. 1, p. 4-7. [Accessed on 10 May 2026] Available from https://doi.org/10.17645/oas.8791; Seo, Y. ‘The shift in power distribution and its influence on the law of the sea’ [Online]. (2024) Penn Carey Law: Legal Scholarship Repository, p. 24. [Accessed on 16 May 2026]. Available from https://doi.org/10.58112/jil.45-1.1

[13] Nordquist, M. ‘United Nations Convention on the Law of the Sea 1982‘. (1985). Vol. 1, p. 68-85. A Commentary. Edition No.1. Martinus Nijhoff Publishers, P.O. Box 163, 3300 AD Dordrecht, The Netherlands, 1985. 467 p. ISBN 90-247-3145-3.  et seq.; Stavropoulos, C. ‘The Third Conference on the Law of the Sea in a Historical Perspective‘. In: Rozakis, C. & Stephanou C. ‘The New Law of the Sea‘. (1983). 1st Edition. Amsterdam [u.a.] : North-Hollandp. p. 15. ISBN 0-444-86804-6; Tanaka, Y. ‘The International Law of the Sea’. (2019). Edition No. 3. Cambridge University Press, 2019, 635, p. 34. ISBN 978-1-108-42421-9 ; et seq.

[14] Tanaka, Y. ‘The International Law of the Sea’. (2019). Edition No. 3. Cambridge University Press, 2019, 635, p. 35. ISBN 978-1-108-42421-9 et seq.

[15] States that voted against the UNCLOS were the US, Israel, Turkey and Venezuela.

[16] Talmon in Proelss, A. ‘United Nations Convention on the Law of the Sea’. A 

Commentary. Edition, Article 121, Mn. 7, No. 1. Verlag C.H. Beck oHG, Wilhelmstraße 9, 80801 München, Germany, 2017. 2617. ISBN 978-3-406-60324-2

[17] Seo, Y. ‘The shift in power distribution and its influence on the law of the sea’ [Online]. (2024) Penn Carey Law: Legal Scholarship Repository, p. 24. [Accessed on 16 May 2026]. Available from https://doi.org/10.58112/jil.45-1.1; et seq.

[18] Triki, A. ‘Understanding the South China Sea Crisis: State Claims, International Interventions, and Implications’ [Online]. (2025) International Relations Department, University of Mediterranean Karpasia, Nicosia, Turkish Republic of Northern Cyprus Asia & the Pacific Policy Studies, 2026, p. 1. [Accessed on 16 May 2026]. Available from https:// doi.org/10.1002/app5.70040; et seq.; Lamus, F. ‘The South China Sea Arbitration Case and the Consequences for the Legal Regime of Islands in International Law regarding UNCLOS Article 121.3′ [Online]. (2020). Ars Boni et Aequi, Año 16, p. 13. [Accessed on 3 May 2026]. Available from https://www.researchgate.net/publication/354098392_THE_SOUTH_CHINA_SEA_ARBITRATION_CASE_AND_THE_CONSEQUENCES_FOR_THE_LEGAL_REGIME_OF_ISLANDS_IN_INTERNATIONAL_LAW_REGARDING_UNCLOS_ARTICLE_1213 et seq.

[19] Triki, A. ‘Understanding the South China Sea Crisis: State Claims, International Interventions, and Implications’ [Online]. (2025) International Relations Department, University of Mediterranean Karpasia, Nicosia, Turkish Republic of Northern Cyprus Asia & the Pacific Policy Studies, 2026, p. 2. [Accessed on 16 May 2026]. Available from https:// doi.org/10.1002/app5.70040; et seq.

[20] Seo, Y. ‘The shift in power distribution and its influence on the law of the sea’ [Online]. (2024) Penn Carey Law: Legal Scholarship Repository, p. 29. [Accessed on 16 May 2026]. Available from https://doi.org/10.58112/jil.45-1.1; Triki, A. ‘Understanding the South China Sea Crisis: State Claims, International Interventions, and Implications’ [Online]. (2025) International Relations Department, University of Mediterranean Karpasia, Nicosia, Turkish Republic of Northern Cyprus Asia & the Pacific Policy Studies, 2026, p. 4. [Accessed on 16 May 2026]. Available from https:// doi.org/10.1002/app5.70040; the corresponding Articles of UNCLOS 56, 87, 88, and 301

[21] Triki, A. ‘Understanding the South China Sea Crisis: State Claims, International Interventions, and Implications’ [Online]. (2025) International Relations Department, University of Mediterranean Karpasia, Nicosia, Turkish Republic of Northern Cyprus Asia & the Pacific Policy Studies, 2026, p. 3. [Accessed on 16 May 2026]. Available from https:// doi.org/10.1002/app5.70040

[22] It is debatable whether, as the tribunal and the Philippines appear to have assumed, the legal status of maritime features can be assessed objectively and independently of questions of sovereignty, or whether maritime entitlements can be separated from disputes concerning the delimitation of overlapping maritime zones. It is of no wonder that the “land dominates the sea principle“ was not recalled in this context which indicates by the formulation that the ICJ found for it in 1969 that “the land is the legal source of the power which a state may exercise over territorial extensions to seaward (…)“; North Sea Continental Shelf Cases (Germany v. Denmark / Germany v. Netherlands), (Judgement), [1969] ICJ, I.C.J. Reports 1969, P. 3, para. 96. Available from https://www.icj-cij.org/sites/default/files/case-related/52/052-19690220-JUD-01-00-EN.pdf. [Accessed on 9 September 2025]; The South Chinese Sea Arbitration (Republic of the Philippines v. People’s Republic of China), [2016]. Reports of International Arbitral Awards, Volume XXXIII p. 153-617, para. 144, 156. Available from https://legal.un.org/riaa/cases/vol_XXXIII/153-617.pdf. [Accessed on 16 May 2026.]; McDorman ‘The South China Sea Arbitration: Selected Legal Notes’ [Online]. (2015) Asian Yearbook of International Law, Volume 21, p. 7. [Accessed on 16 May 2026]. Available from https://brill.com/display/book/edcoll/9789004344556/B9789004344556_002.xml?srsltid=AfmBOopEDDsyUGicKlenf4q6kkQkoJJ1n3O6aRsrb5XfOs2gNt1R w98 et seq.; Chinese Society of International Law. ‘The South China Sea Arbitration Awards: A Critical Study’ [Online]. (2018) Chinese Journal of International Law, Vol. 17, Issue 2, p. 236. [Accessed on 16 May 2026]. Available from https://academic.oup.com/chinesejil/article/17/2/207/4995682; Papanicolopulu, I. ‘The land dominates the sea (dominates the land dominates the sea)’ [Online]. (2018) Questions of International Law, Zoom-in 47, p. 45. [Accessed on 16 May 2026]. Available from https://www.qil-qdi.org/land-dominates-sea-dominates-land-dominates-sea/ et seq.

[23] The South Chinese Sea Arbitration (Republic of the Philippines v. People’s Republic of China), [2016]. Reports of International Arbitral Awards, Volume XXXIII P. 612-617 [Accessed on 16 May 2026]. Available from https://legal.un.org/riaa/cases/vol_XXXIII/ 153-617.pdf; McDorman ‘The South China Sea Arbitration: Selected Legal Notes’ [Online]. (2015) Asian Yearbook of International Law, Volume 21, p. 14. [Accessed on 16 May 2026]. Available from https://brill.com/display/book/edcoll/9789004344556/B9789004344556_002.xml?srsltid=AfmBOopEDDsyUGicKlenf4q6kkQkoJJ1n3O6aRsrb5XfOs2gNt1R w98 et seq.; Schoenbaum, T. ‘The South China Sea Arbitration Decision: The Need for Clarification’ [Online]. (2016). Symposium on the South China Sea Arbitration, AJIL Unbound Vol. 110, p. 290. [Accessed on 17 May 2026]. Available from https://www.jstor.org/stable/27003223 et seq.; Triki, A. ‘Understanding the South China Sea Crisis: State Claims, International Interventions, and Implications’ [Online]. (2025) International Relations Department, University of Mediterranean Karpasia, Nicosia, Turkish Republic of Northern Cyprus Asia & the Pacific Policy Studies, 2026, p. 3. [Accessed on 16 May 2026]. Available from https:// doi.org/10.1002/app5.70040 et seq.; Beech, H. ‘Tribunal Rules China’s Claims to South China Sea have “No Legal Basis”‘ [Online]. (2016). TIME [Accessed on 17 May 2026]. Available from https://time.com/4402451/south-china-sea-ruling-tribunal-philippines/

[24] McDorman ‘The South China Sea Arbitration: Selected Legal Notes’ [Online]. (2015) Asian Yearbook of International Law, Volume 21, p. 4. [Accessed on 16 May 2026]. Available from https://brill.com/display/book/edcoll/9789004344556/B9789004344556_002.xml?srsltid=AfmBOopEDDsyUGicKlenf4q6kkQkoJJ1n3O6aRsrb5XfOs2gNt1R w98