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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.

Especially in the United States, many commentators have assumed that China interprets the nine-dash line expansively. But Beijing has never officially clarified which interpretation it means to adopt. Its refusal to do so is striking, especially because nearly all commentators on the South China Sea dispute—including several Chinese scholars—have urged China to clarify its ambiguous legal claims.

Instead, the Chinese government has deliberately adopted a legal policy of studied ambiguity about the scope of its claims. This “strategic ambiguity” is just one facet of China’s larger strategy of delay. The nine-dash line creates the legal space for more expansive interpretations of China’s claims in the future, but it does not necessarily call for them now. As a result, China maintains flexibility in the long run while avoiding the short-term costs of advancing unrealistic claims. Of course, even a policy of strategic ambiguity has costs—China has been roundly criticized for its reliance on the nine-dash line, most recently by the United States. But China’s willingness to bear these costs testifies powerfully to its reluctance to embark upon either a policy of compromise or one of aggression.

China’s delaying strategy has also affected the way in which China negotiates its legal claims. First and foremost, China has done its best to avoid resolving the conflict. While it has formally committed itself to a process of peaceful resolution, in practice Beijing has tirelessly advocated for a policy of “joint development” whereby claimants should postpone resolution of the sovereignty disputes until conditions are “ripe.” Until then, all the parties should work together to develop the resources of the South China Sea jointly. Although the approach has gained little traction, it would allow China to evade its dilemma if enacted: Beijing could promote regional peace while still exploiting the Sea’s resources and maintaining its sovereignty claims.

As another negotiating tactic, Beijing has insisted upon resolving the South China Sea disputes on a bilateral basis. According to the conventional wisdom, China prefers one-on-one bargaining over multilateral negotiations because it can more easily bring its strength to bear on a single negotiating partner. But bilateral negotiations also entail a second and perhaps more important benefit: they allow Beijing to control the pace of negotiations. In contrast, multilateral negotiations make it easier for other claimants to strike deals among themselves that force China to act. Even when China has been unable to prevent other parties from convening, it has stymied progress by co-opting individual states and taking advantage of internal divisions.

The Increasing Irrelevance of China’s Legal Strategy

For many years, China’s reactive posture served it well. From the mid-1990s to the early 2000s, China and the other claimants prioritized international law and diplomacy in both word and deed. By the mid-2000s, however, the other disputants – especially Vietnam and the Philippines – realized that they were at the losing end of China’s delaying strategy. If they played on China’s terms, they would continue to forfeit leverage. So they changed the rules of the game.

The parties have continued to mouth the same rhetoric, but they have begun altering their underlying conduct. Instead of emphasizing the substantive law, the smaller claimants – especially the Philippines and Vietnam – have perfected a new but incredibly risky strategy: throwing China onto the horns of its own dilemma. Manila and Hanoi both know that they cannot hope to force China to surrender all of its claims, but they calculate that they may be able to wring significant concessions out of China so long as Beijing continues to waver between aggression and compromise. In the last decade, the Philippines and Vietnam have therefore attempted to pressure China by changing the on-the-ground reality and internationalizing the conflict. By adopting a more pro-active posture, the two countries hope that China will be forced to make a decision between responding aggressively—thereby imperiling its long-term growth strategy—and conceding some limited ground in the dispute. The Philippines and Vietnam are banking on China choosing the latter.

While China was initially caught off guard by Manila and Hanoi’s new strategy, it quickly recovered and honed a new, two-pronged strategy. As Peter Dutton has pointed out, the first prong emphasizes non-militarized coercion. As one aspect of this strategy, China has flooded the South China Sea with a slew of “white hulls,” or ships owned by China’s civilian maritime agencies. These vessels are then used to push back against the other claimants by, for example, detaining foreign fishermen or cutting the cables of oil exploration vessels. Most recently, Beijing has parked an oil rig off the coast of Vietnam—protected, of course, by an armada of white hulls. As part of this strategy, China has also used its economic heft to “discourage” international investors from plunging into the troubled waters of the region.

As part of the second prong, Beijing has continued to expand and bolster its naval capabilities. These capabilities are then used almost exclusively for deterrence purposes; China does not want to engage in direct conflict, but rather seeks to put a cap on the non-militarized coercion of the first prong and to prevent it from spiraling out of control. As a result, when Philippine ships encounter Chinese civilian maritime vessels, they always know that the People’s Liberation Army Navy (PLAN) lurks just out of sight.

Together, the two prongs allow China to forcefully respond to the provocations of other claimants while also containing the possibility of escalation. Once again, the objective is to reconcile China’s competing strategic interests: Beijing defends its claims through its sometimes aggressive civilian enforcement, but it prevents the dispute from endangering its long-term growth by ensuring that weapons remain holstered throughout.

In implementing this new strategy, China sometimes meets other disputants’ actions with merely an equal and opposite reaction; more recently, however, China has begun to not only reciprocate but also to escalate, placing additional pressure on the other claimants to back down. For example, after a Philippine naval vessel detained Chinese fishermen near Scarborough Shoal in April 2012, China sent in several of its own civilian maritime vessels. The standoff continued for two months until the United States brokered a withdrawal by both sides. While the Philippines dutifully left, China reneged on the deal and stayed put. A month later, the PLAN blocked the entrance of the shoal, and its vessels have been patrolling nearby ever since.

The culmination of the Scarborough Shoal standoff was a historically uncharacteristic escalation on China’s part: in effect, Beijing seized control of Scarborough Shoal in response to the Philippines’s initial harassment of some Chinese fishermen. But in other respects, China’s reaction is not particularly surprising. In responding to the provocations of other claimants, Beijing must walk a tightrope between using too little coercion (thereby emboldening other parties) and using too much (thereby appearing as a regional bully). On the whole, it has not been able to maintain this balancing act, perhaps because a perfectly calibrated response is impossible. As a result, regional public opinion has swung sharply against China.

In any case, the most revealing part of the Scarborough story may have happened months after China consolidated control over the shoal. On January 22, 2013, the Philippines initiated an arbitration process over China’s claims under the auspices of UNCLOS. At some level, the case seems marginal. China has refused to participate, so the case could easily be thrown out for lack of jurisdiction. But even if the tribunal reaches the merits, and even if it rules in Manila’s favor, then Beijing can just ignore the decision and wait until the wave of international criticism passes. Any result will be effectively unenforceable.

Yet despite the case’s practical insignificance, China has been frantically—and unsuccessfully—trying to stop it from proceeding. In January 2014, Beijing reached new levels of desperation, and allegedly offered to withdraw its ships from Scarborough Shoal if the Philippines would delay filing its memorial in the case. While that proposal should be viewed with suspicion—after all, Beijing has reneged on deals relating to the shoal before—it is nevertheless an extraordinary offer if true: China was willing to give up control of territory over which it claims sovereignty just to avoid a bit of bad publicity. So while China won the battle for Scarborough Shoal, it may have lost the war, all because Manila was able to find something that Beijing valued even more than the territory: its reputation for complying with international law. To China, its reputation is intimately connected to its long-term growth strategy, and the country cannot afford to advertise its total non-compliance with international law.

The latest turn in the Scarborough Shoal standoff illustrates the limitations of China’s new strategy. China’s blunt tactics have had some successes, and in the future, Manila will likely think twice before initiating a showdown over a disputed island. But China’s strategy has not been able to permanently alter the overall calculus of other claimants. Every time China effectively deters one type of provocation, it only incentivizes parties to escalate through another. As a result, China is being consistently impaled on both horns of its dilemma: its long-term growth strategy is increasingly jeopardized even as it confronts mounting threats to its territorial claims.

Worst of all, China’s situation is unlikely to improve. The dynamic produced by the interaction of its strategy with those of the other claimants is inherently unstable; countering one provocation merely leads to a greater one somewhere else. At some point, Beijing may find that it must bite the bullet and choose between two extremely unpalatable options: escalating the dispute into an open naval conflict and watching the region unravel, or conceding strategically valuable territory—as Beijing may have offered to do four months ago—and facing potential domestic unrest at home. China will do all it can to defer this choice, but sooner or later, it may have to decide.

Sean Mirski is a second-year student at Harvard Law School, where he is Supreme Court Chair of the Harvard Law Review. He is also the co-editor of Crux of Asia: China, India and the Emerging Global Order.

Image: Wikimedia Commons