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Magnetic Rocks: Assessing China's Legal Strategy in the South China Sea

May 19, 2014 Topic: Security Region: China

Magnetic Rocks: Assessing China's Legal Strategy in the South China Sea

Beijing’s goal: to sustain regional peace and stability while also advancing its expansive claims. Can it succeed?

Editors Note: This is the first in a two-part series assessing the legal strategies of the South China Sea claimants in their broader strategic context. Below, Sean Mirski examines how China's strategy has been driven by its conflicting desire to both maintain regional stability and consolidate control over the South China Sea. For Part II of this series click here.

Centuries ago, Chinese fishermen referred to the isles of the South China Sea as “magnetic rocks”—a morbid allusion to the uncanny force that drew ships to unlucky fates on the shoals. Today, however, the South China Sea attracts a different kind of trouble. For the last six decades, the Sea has been the center of a geopolitical maelstrom fueled by great power politics, toxic nationalism, and bountiful petroleum reserves. Six different parties – Brunei, China, Malaysia, the Philippines, Taiwan, and Vietnam – feud with each other over both the South China Sea’s insular territories and their surrounding waters.

Of the six contenders, China has become the key player. It is the largest and most powerful disputant, and it has also advanced the most sweeping claims. Yet Beijing’s behavior does not always mirror its growing power and ambitions. Instead, China’s strategy is more complex, and is shaped primarily by Beijing’s desire to sustain regional peace and stability while also advancing its expansive claims.

This dilemma has led China to emphasize delaying resolution of the conflict, as best exemplified in its legal strategy for the dispute. But this strategy has become increasingly marginalized in recent years as China has become a victim of its own success. Other claimants have realized the perils of playing by China’s rules, so they have instead countered China’s delaying strategy with a more pro-active posture intended to push Beijing to stop dithering and to face its dilemma head-on. China has struggled to respond, and its reaction has raised tensions across the region while failing to change its opponents’ calculus. As the dispute escalates, China may feel mounting pressure to abandon its delaying strategy and to seek a swifter resolution to the conflict—as the events unfolding now are beginning to show.

China’s Conflicting Strategic Interests

Rising Peacefully

To understand Beijing’s predicament, consider its conflicting strategic interests. On the one hand, China seeks to perpetuate its decades-long growth streak. The statistics are familiar: the nation’s economy has been booming at an average annual rate of almost ten percent over the last thirty-five years, and its economy has doubled in size five times during this period. Even if its growth slows to some extent, China’s economy could—and indeed, almost certainly will—eclipse that of the United States in the coming future.

But, geopolitically speaking, China’s growth is relatively unusual. Rather than engaging in Charles Tilly’s dialectical “state making” and “war making,” Beijing instead embedded itself in the liberal international economic order. In retrospect, this decision proved prescient: China has been prospering ever since it hitched its economy to American-led globalization.

International economic interdependence doesn’t happen in a vacuum, though. To work its commercial magic, economic interdependence needs a relatively peaceful external environment. Conflicts can tear apart the economic relationships at the heart of an open trading system and cleave China away from valuable trading partners, even if Beijing itself avoids getting involved. Worst of all, any regional imbroglios could usher in even more American political and military power into the region – a threat to China’s longer term ambitions of regional preeminence (if not dominance).

To keep growing, then, China needs a stable and peaceful Asia. Consequently, China’s leaders have repeatedly cast their policies in terms of a “peaceful rise” or “peaceful development.” This strategy involves more than mere rhetoric: over the last three decades, Beijing has settled numerous border disputes; engaged in skillful regional diplomacy; become actively involved in regional and international governmental organizations; and signed mutually beneficial trade agreements across the world. Indeed, it should come as no surprise that China has also behaved remarkably well in the military sphere: it last fought a war in 1979, and has only been involved in one minor skirmish in the South China Sea since then (Johnson South Reef in 1988). In short, China has tried to be a model regional citizen, all in service of its economic ambitions.

Controlling the South China Sea

But while Beijing’s long-term ambitions counsel restraint, its more immediate objectives – including sovereignty over the South China Sea – pull the other way. In Beijing’s ideal world, China would now be the undisputed master of the South China Sea.

Beijing seeks to control the South China Sea in order to manage national security threats and advance its economic objectives. The Sea represents a strategic vulnerability for China, both as a historical invasion route and as a modern threat to its energy security and export-oriented economy. Controlling the South China Sea would also offer many tangible benefits. The Sea teems with bountiful fishing stocks, a mainstay of many regional economies. Beneath the ocean floor, even more valuable assets wait. Although experts differ about the size of the potential bonanza, they all agree that there is enough petroleum and natural gas to make any bordering state covetous.

These strategic imperatives are reinforced by China’s domestic politics. China’s maritime disputes have become inextricably intertwined with Chinese nationalism. As a result, the South China Sea implicates not only China’s sovereignty, but also its identity as a nation. And to complicate matters even further, any retreat from China’s claims would likely spur unfavorable analogies to China’s weakness at the hands of predatory imperial powers during the “Century of Humiliation.” So even if China’s leaders were inclined to surrender Chinese claims in the South China Sea, they would be deterred from doing so by the inevitable domestic backlash. Instead of compromising, Beijing feels increasingly pressured by a nationalist public to act assertively in its relations with the other claimants.

The Horns of China’s Dilemma

Thus, China’s strategic interests often work at cross-purposes. On the one hand, Beijing would prefer to resolve the South China Sea dispute as quickly and peacefully as possible. The dispute has stymied greater regional integration, and in recent years, China has acquired a reputation for bellicose behavior that has chilled its regional relationships. On the other hand, though, China also does not want to lose control of such a strategically important area. Its hands are further tied by a nationalistic and often pugilistic public that looks suspiciously at any perceived concessions or weaknesses on China’s part. In short, China could try to resolve the dispute through either compromise or aggression, but neither is an appealing option.

So instead of trying to resolve the conflict, Beijing has hedged and adopted a strategy of delay. Caught between competing strategic interests, China has sought to maintain enough control to preserve its claims without exerting too much control in a way that might unnerve other disputants. So while China will defend its claims against other states’ aggression, it has generally preferred to avoid destabilizing the status quo. Of course, a delaying strategy also plays to China’s greatest strength: its expanding power and long-run growth trajectory. Why should China try to resolve the conflict now when its negotiating position improves every fiscal quarter?

China’s Legal Strategy in the South China Sea Dispute

For the best example of the delaying strategy at work, look no further than China’s legal strategy. This strategy is a carefully crafted mix of substantive legal claims and negotiating tactics, all aimed at preserving the status quo while maintaining maximum flexibility in the future.

China has embraced ambiguity as a key pillar of its legal strategy. Even today—after several decades of controversy—the scope of China’s claims remains unclear. In fact, China has only muddied the waters in recent years with its formal introduction of the infamous “nine-dash line.” In 2009, Malaysia and Vietnam filed a Joint Submission to a U.N. body setting forth the limits of their outer continental shelf claims. China responded the next day with a note verbale protesting the two countries’ claims. The Chinese note stated, somewhat cryptically, that “China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map).” The attached map showed a nine-dash line reaching from China’s coast and encompassing nearly the entire South China Sea. Since then, countries and commentators alike have wondered what—if anything—the nine-dash line indicates. It seems clear enough that China claims title to all the islands that fall within the expansive boundaries of the nine-dash line. Less clear, however, is whether it also lays claim to all the waters encircled by the line.

To do so would be a blatant violation of China’s international obligations. Under customary international law, states are bound by the principle of “la terre domine la mer” (the land dominates the sea), or the idea that sovereignty over waters flows from sovereignty to nearby land, and not the reverse. In line with this principle, the U.N. Convention on the Law of the Sea (UNCLOS) permits nations to control domestic waters extending only a certain distance from their sovereign territory. Even under the most charitable reading of UNCLOS, Beijing could not lawfully claim control over much of the water enclosed by the nine-dash line.