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?

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.