The Fog of Law: China's Great South China Sea Dilemma

Lawfare is in full swing in the South China Sea. How will China respond to an unfavorable legal ruling? 

Recent months have witnessed an impressive Chinese diplomatic blitzkrieg, with President Xi Jinping and Premier Li Keqiang feverishly courting friends and foes alike, proposing ambitious trading agreements and acquiescing to various confidence building measures (CBMS) aimed at de-escalating geopolitical tensions in the region. But China’s intensifying legal battle with the Philippines has injected new uncertainties into the picture. What has emerged in recent days is a new chapter of confrontation between Beijing and its Southeast Asian neighbors, particularly Manila and Hanoi. Interestingly, the United States has joined the legal fray by expressing its stance on—or, to put it more accurately, criticism of—China’s expansive territorial claims in the South China Sea.

On the one hand, there have been considerable diplomatic gains in the past few weeks. To prevent accidental clashes in the high seas and the skies, Beijing signed CBMs with Washington and green-lighted the resumption of (mid-level) talks between Chinese and Japanese agencies, which oversee security and foreign-policy issues. China has also proposed a defense hotline with the Association of Southeast Asian Nations (ASEAN), dangled $20 billion in development loans and offered to host a high-profile meeting between the defense minister of China and his Southeast Asian counterparts next year. Chinese and Vietnamese defense ministries also reportedly signed (an additional) hotline, with both Communist countries agreeing to revive deeply frayed bilateral relations.

To cap it all, China also, more or less, finalized negotiations over a Free Trade Agreement (FTA) with Australia and is on the verge of completing an agreement with South Korea; these are two key American allies that snubbed Beijing’s newly-inaugurated Asian Investment Infrastructure Bank (AIIB). It was a clear demonstration of China’s willingness to overcome short-term annoyances in favor of gaining long-term diplomatic leverage. Nonetheless, China is still grappling with the legal conundrum presented by the Philippines’ bold and historic decision to seek compulsory arbitration in the South China Sea. It has recently ignored a deadline for a statement on the Philippines’ case against it, dismissing the Philippines’ claims altogether. To China’s chagrin, the U.S. State Department also released a position paper (December 5) on the legal aspects of the maritime disputes, while Vietnam has decided to explicitly support the Philippines’ legal maneuver and threaten a similar action.

The Fog of Law

On the surface, China’s claims seem to be unambiguously ambitious and provocative. Latest Chinese maps indicate Beijing claims sovereignty over almost the entirety of the South China Sea. Drawing on the doctrine of “historical rights”, China claims “inherent and indisputable” sovereignty over much of the South China Sea. A deeper look, however, reveals the inherently ambiguous nature of China’s claims: It is still unclear whether China is treating the disputed waters as a virtual internal lake, or, alternatively, only laying claim to individual features and their surrounding territorial waters. Beijing has yet to clarify the precise coordinates of the “nine-dash-line” doctrine, which hasn’t been consistently laid out in Chinese documentations.

The emerging consensus is that the ambiguity is deliberate and strategic: China, through its expansive (but imprecise) cartographic claims, can project toughness and patriotic ambition before a hypernationalist domestic audience without risking the legal ramifications of explicitly defending what many see as inherently indefensible maritime claims.

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