Introduction
For journalist Robert Kaplan, the South China Sea will be “the 21st century’s defining battleground” and the “throat of global sea routes.”Footnote 1 This assessment is primarily based upon the economic, geopolitical, and military significance of the South China Sea. It is one of the world’s busiest trade routes, with more than half of the world’s annual merchant fleet tonnage and a third of all maritime traffic traversing its waters.Footnote 2 The Sea is at the centre of the maritime route (or “Road”) of China’s Belt and Road Initiative, an infrastructure development project totalling US $4–8 trillion in investments that some have described as a twenty-first-century Marshall Plan.Footnote 3 The Sea is also important for the fishing industries of its coastal states such as Vietnam, Malaysia, and the Philippines.Footnote 4 The Sea, moreover, contains vast quantities of hydrocarbon deposits (estimated to be between 28 and 213 billion barrels), making it an attractive destination for resource development.Footnote 5 To the dismay of other coastal states, China’s attempt to control the South China Sea could translate into regional hegemony and advance its great power ambitions.Footnote 6 As a result, China, the Sea’s coastal states, the United States, and its allies all vie to protect their respective interests in the region.Footnote 7
China’s involvement in the South China Sea dispute is also a microcosm for the ways in which China defines its role within the international legal order. The South China Sea, much like the Caribbean during America’s imperial age, serves as a stage for a rivalry between “new” and “old” powers. Historically, such a rivalry is often cast as a debate between “new power” notions of sovereignty and “old power” conceptions of freedom of navigation.Footnote 8 In the nineteenth century, the United States sought to protect its nearby sea from British influences.Footnote 9 Similarly, in the South China Sea, China wants to defend a certain degree of sovereignty over a “core interest,” while the United States, a more established power, seeks to advance a regional agenda focused on freedom of navigation.Footnote 10
While scholars have drawn this historical analogy, and referred to the South China Sea as “China’s Caribbean,” they have often overlooked the legal similarities between nineteenth-century America and post-1992 China.Footnote 11 Indeed, China is taking advantage of legal precedents and exceptions that have historically benefited Western powers. In particular, China’s legal warfare (lawfare) strategy has relied upon historically accepted norms in three areas of law: effective occupation, historic rights, and exclusive economic zones (EEZ). The purpose of this article is not to contest or question the legal value of China’s claims; as many commentators have noted, the legal basis of China’s claims can be vague and uncertain, which reduces the pertinence of such an inquiry. Rather, this article seeks to illuminate China’s longer-term legal strategy and to point out the historical similarities between American and Chinese efforts to shape international law during their respective “rise” periods through the use of strategic vagueness. Following the logical course of this historical analogy should call into question the belief that China is in the process of setting new,Footnote 12 “self-created,”Footnote 13 or “dangerous”Footnote 14 precedents in these three areas.
The argument proceeds along five interrelated lines of inquiry. The first section defends geopolitics as an appropriate lens from which to contextualize the legal manifestations of the South China Sea dispute. The second section explains how China’s lack of clear formal legal argumentation has led scholarly speculation as to the legal basis of its claims. The third section will examine China’s historical legal claims and military activities in relation to the South China Sea dispute following its implementation of the United Nations Convention on the Law of the Sea (UNCLOS) in 1992.Footnote 15 The fourth section sketches out the similarities between China’s regulatory framework and America’s embrace of Mahanian approaches to naval strategy. The article will conclude in the fifth section with a discussion of how China has extended, or simply applied, the law of effective occupation, historic rights, and EEZs to suit its geopolitical interests.
Geopolitics, Lawfare, and China
This article adopts an interdisciplinary approach to international law. This approach is premised upon the bidirectional (or inter-relational)Footnote 16 nature of international law and international relations, described by Anne-Marie Slaughter Burley as “law informed by politics” and “politics informed by law.”Footnote 17 Indeed, geopolitics can provide a means to better contextualize, understand, and predict state behaviour. This basic premise is particularly applicable to the South China Sea dispute in two regards. First, China’s legal actions in the South China Sea dispute have been described as vague, ambiguous, contradictory, and abstruse.Footnote 18 The inadequacy of China’s official legal statements in providing a complete and intellectually satisfying account of China’s claim confirms the need for a more interdisciplinary approach that embraces the importance of geopolitical studies and underscores the poverty of a strictly legal analysis.Footnote 19 Second, this premise is justified by China’s own instrumental approach to international law.Footnote 20 Partly a reaction to more Western ideals of universal international law and to China’s seventeenth-century contact with the Western world,Footnote 21 there is a Chinese perception that international law was imposed upon China.Footnote 22 This perception (whether it is founded or not) has profoundly impacted its perception of international law and state sovereignty. In particular, “it explains why China always attaches such importance to sovereign equality in international affairs.”Footnote 23 China’s strong (or, according to some, absolutistFootnote 24) conceptions of sovereignty (especially in its post-colonial period)Footnote 25 are not only related to its dissatisfaction with the international order but also to its relative weakness to change it.Footnote 26 These experiences have pushed China towards more realist and legalistic schools of thought, which perceive of international relations in terms of power and state interest.Footnote 27
China’s instrumentalist approach to international law is also evident in its embrace of “lawfare” as a tool to advance its foreign policy objectives.Footnote 28 Simply stated, lawfare (a portmanteau of legal warfare) is a form of asymmetric warfare that instrumentalizes law to pursue a military or foreign policy objective. Major General Charles J. Dunlap, who first coined the term, defines lawfare as “the strategy of using — or misusing — law as a substitute for traditional military means to achieve an operational objective.”Footnote 29 Roughly since the 1990s, China has embraced legal warfare (falu zhan) as a main component of its strategic doctrine.Footnote 30 In 1996, China’s then President Jiang Zemin advised a group of Chinese international lawyers that China “must be adept at using international law as a weapon.”Footnote 31 In 1999, Unrestricted Warfare, a treatise written by two Chinese colonels (and published by the Chinese military), repeatedly referred to “legal warfare” as a means to use international law to primarily benefit a certain country.Footnote 32 This book was followed by at least three treatises detailing the ways in which international law may be used by the People’s Liberation Army to advance its objectives.Footnote 33 These works are manifestations of the legalistic (Fajia) tradition, which seeks to create and protect international power through the use of incentives and sanctions.Footnote 34 Even today, the Chinese People’s Liberation Army lists “legal warfare” as one of the three main types of warfare.Footnote 35
For China, the use of lawfare presents several advantages over other forms of warfare. Lawfare is often less costly than traditional warfare.Footnote 36 It can also be used to exploit the West’s affection for the rule of law. In strategic terms, the rule of law is regarded as a source of strength (or a Clausewitzian centre of gravity) Footnote 37 for the United States and the West. Seen under this light, undermining the legal foundations of American strength is an important objective for China if it wants to change the international order. As one of the authors of Unrestricted Warfare remarked in an interview, “[w]e are a weak country, so do we need to fight according to your rules? No.”Footnote 38 Moreover, lawfare can be an efficient alternative to other military tactics. In their 2007 annual report to Congress, Chinese military strategists noted that the use of international law can help deter adversaries prior to conflict.Footnote 39
China’s Legal Claims
While China has generally been consistent as to the territories it claims within the South China Sea, it has thus far been reluctant to clarify the legal basis for its claims.Footnote 40 The arbitral tribunal also noted this lack of clarity in China’s claims: “The Tribunal has found, however, … that there is no legal basis for any Chinese historic rights, or other sovereign rights and jurisdiction beyond those provided for in the Convention, in the waters of the South China Sea encompassed by the ‘nine-dash line’.”Footnote 41 As a result, jurists have been compelled to speculate on the legal basis for China’s claims. This search has concentrated on China’s official state declarations, domestic laws, and academic legal literature during five key periods of the South China Sea dispute: 1933–51, 1956–96, 1998–2005, 2009–11, and 2013–16.Footnote 42 These periods roughly correspond to different phases of tension in the South China Sea.
1933–51
The year 1933 marks the beginning of the modern South China Sea dispute when France claimed sovereignty (on behalf of Vietnam) over the Paracel and Spratly islands.Footnote 43 While France laid claims on the Spratlys, Japan rejected this claim in 1938 as “unjustifiable.”Footnote 44 In 1951, Japan renounced all of its claims to the South China Sea in the Treaty of San Francisco.Footnote 45 In the same year, the Soviet Union appealed to recognize China’s “full sovereignty” over (notably) Taiwan and the Spratlys.Footnote 46 Despite these acts of recognition, China did not occupy any of the features in the Sea in 1951.Footnote 47
1956–96
During this period, China made various attempts to demarcate its territories in the Sea. In 1956, China asserted its territorial claim over the Spratlys in response to the Philippines’ claim over some of the islands in the group.Footnote 48 Following the conclusion of UNCLOS in 1958,Footnote 49 China presented its first official claim in its 1958 Declaration on the Government of the People’s Republic of China on China’s Territorial Sea.Footnote 50 In it, China affirmed sovereignty over the Penghu Islands, Pratas Islands (Dongsha), Paracel Islands (Xisha), Macclesfield Bank (Zhongsha), and the Spratlys (Nansha):
The breadth of the territorial sea of the People’s Republic of China shall be twelve nautical miles. This provision applies to all territories of the People’s Republic of China including the Chinese mainland and its coastal islands, as well as Taiwan and its surrounding islands, the Penghu Islands, the Dongsha Islands, the Xisha Islands, the Zhongsha Islands, the Nansha Islands and all other islands belonging to China which are separated from the mainland and its coastal islands by the high seas.Footnote 51
The substance of this declaration was reaffirmed in China’s 1992 Law on the Territorial Sea and the Contiguous Zone [1992 Law].Footnote 52 Article 2 of the 1992 Law reiterated its sovereignty on the islands in the South China Sea and in the East China Sea (Diaoyu Islands), while leaving the door open for future claims:
The land territory of the People’s Republic of China includes the mainland of the People’s Republic of China and its coastal islands; Taiwan and all islands appertaining thereto including the Diaoyu Islands; the Penghu Islands; the Dongsha Islands; the Xisha Islands; the Zhongsha Islands and the Nansha Islands; as well as all the other islands belonging to the People’s Republic of China.Footnote 53
While China reaffirmed its sovereignty over these islands and its ability to use military force to protect them, the 1992 Law does not include any coordinates or boundaries for these islands. Upon ratification of UNCLOS in 1996,Footnote 54 China reaffirmed “its sovereignty over all its archipelagos and islands as listed in article 2 [of the 1992 Law].”Footnote 55 None of these sovereignty claims were accompanied by legal justification. Rather, these claims merely affirmed China’s sovereignty over these territories as fact.
1998–2005
In contrast to the previous periods, China began to offer some formal hints as to its legal basis. In 1998, China enacted the Exclusive Economic Zone and Continental Shelf Act [1998 Law]Footnote 56 to safeguard its “maritime rights and interests.”Footnote 57 Article 14 stipulates that “[n]o provisions of this Law can prejudice historical rights of the People’s Republic of China.”Footnote 58 This article is China’s first formal reference to a historic rights claim. The precise meaning of Article 14 has been the subject of extensive academic debate.Footnote 59 This is due in no small part to the lack of explanation for its inclusion in the 1998 Law.Footnote 60 At the very least, this article suggests that China enjoys certain rights in virtue of historical facts.Footnote 61 These historical rights may refer to China’s supposed long history of control over the South China Islands dating back to the twenty-first century BCE.Footnote 62 For one Vietnamese scholar, these “historical rights” refer to sovereignty over 80 percent of the South China Sea and to traditional fishing rights.Footnote 63 Other scholars have argued that Article 14 makes a stronger claim. Another interpretation holds that Article 14 extends China’s sovereignty claims to areas beyond the 200-nautical-mile EEZ limit established in UNCLOS.Footnote 64 This academic debate sparked by the varying interpretations of Article 14 contributed to Vietnam’s contestation of China’s claim, arguing that China’s “historical interests” are inconsistent with international law.Footnote 65 This interpretive debate underscores the lack of clarity surrounding the historical and legal bases for China’s claims. More precisely, the 1998 Law does not provide any specification regarding the ways in which history supports its claims. Furthermore, it does not specify which historical rights are being affirmed, nor does it specify precisely their legal form—be it maritime fishing rights, sovereign territory claims, or something else.
Following 1998, there were signs of progress in state relations among the South China Sea’s coastal states. In 2002, China and ten members of the Association of Southeast Asian Nations (ASEAN) signed the Declaration on the Conduct of Parties on the South China Sea.Footnote 66 In it, the signatories affirm their good faith in securing peace in the region and their commitment to peaceful dispute resolution.Footnote 67 Some considered this declaration to be the “political foundation” for future collaboration in the region.Footnote 68 This hope was further justified by a secret 2005 joint tripartite petroleum exploration agreement between China, Vietnam, and the Philippines.Footnote 69
2009–11
In 2009, Vietnam passed a law outlining its baselines in conformity with the provisions in UNCLOS regarding archipelagic baselines.Footnote 70 In contrast to Chinese domestic legislation, Vietnam’s law lists precise geographic coordinates for its baselines.Footnote 71 According to this same Vietnamese law, the Scarborough Shoal and the Kalayaan Island Group (located in the Spratlys) are to be treated as islands, pursuant to UNCLOS.Footnote 72 The Philippines also indicated that they intended to present a submission regarding their continental shelf.Footnote 73 That same year, the Philippines filed joint submissions with Malaysia to the UN Commission on the Limits of the Continental Shelf, explaining their position on the territorial boundaries of the South China Sea.Footnote 74 In response, China filed Note Verbale no. CML/17/2009 (2009 Note Verbale) with the UN Secretary-General.Footnote 75 In it, China claimed to have “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).”Footnote 76 This 2009 Note Verbale did not elaborate on the legal justification of the claim but, rather, affirmed that the Philippine–Malaysia joint submissions “seriously infringed China’s sovereignty, sovereign rights and jurisdiction in the South China Sea.”Footnote 77
The map attached to the 2009 Note Verbale has been described as one of the “pillar(s)” of China’s claim.Footnote 78 It seems to indicate that China controls areas of the South China Sea falling within the “nine-dashed line” (roughly accounting for 80–90 percent of the Sea).Footnote 79 The map was originally published by the Republic of China in 1947,Footnote 80 although these details have been disputed.Footnote 81 This map is controversial on a number of fronts, especially among several ASEAN countries.Footnote 82 If the map originated from the Chinese government, it alone amounts to little more than a unilateral illustration of China’s sovereign territory.Footnote 83 Even if the map were to be accepted, the map itself does not indicate ownership.Footnote 84 Besides its origins, the map’s contents are controversial. As commentators have noted, the map itself is ambiguous and lacks precision.Footnote 85 The map does not contain any coordinates or precise measurements for the delimitation of territory and does not indicate all of the features found in the South China Sea.Footnote 86 As such, some believe that China’s claims merely concern geographic features found in the South China Sea rather than the entirety of the nine-dash line.Footnote 87 Furthermore, it is not clear whether the map should be understood as evidence supporting China’s claim (thus giving it probative value) or merely as a geographic depiction of it (thus giving it informative value).Footnote 88 In response to these concerns, ChineseFootnote 89 and TaiwaneseFootnote 90 scholars emphasize the map’s probative value and its key role in establishing their respective legal titles over the claimed territories.Footnote 91
After the Philippines contested the 2009 Note Verbale, China reiterated its claims in Note Verbale no. CML/8/2011 (2011 Note Verbale).Footnote 92 In it, China indicated that “China’s sovereignty and related rights and jurisdiction in the South China Sea are supported by abundant historical and legal evidence”Footnote 93 and added that,
[s]ince [the] 1930s, the Chinese government has given publicity several times the geographic scope of China’s Nansha [Spratly] Islands and the names of its components. China’s Nansha Islands is therefore clearly defined. In addition, under the relevant provisions of the [1992 Law, the 1998 Law, and UNCLOS], China’s Nansha Islands is fully entitled to Territorial Sea, Exclusive Economic Zone (EEZ) and Continental Shelf.Footnote 94
Again, much like the 2009 Note Verbale, the 2011 Note Verbale does not elaborate on the alleged “historical and legal” evidence for its claim.Footnote 95 Moreover, it conflates territorial claims with legal justifications for its claims. The mere act of affirming “abundant evidence” without elaboration does not make it so. However, unlike the earlier Note Verbale, the 2011 Note Verbale does not contain any references to the nine-dash line or to the map, casting doubt on the importance of these pieces of evidence.Footnote 96 Rather than clarifying the nature of China’s claims, the two Note Verbales reinforced their ambiguity.
2013–16
In response to China’s two Notes Verbales and to increased tensions in the Scarborough Shoal,Footnote 97 the Philippines commenced an arbitration procedure against China pursuant to UNCLOS.Footnote 98 The tribunal was then established in 2013, despite China’s formal refusal to take part in the arbitration procedure.Footnote 99 In keeping with its strategy of non-participation, China did not send legal representation to the case, nor did it provide clear argumentation on the merits of the case.Footnote 100 As the tribunal noted,
China has consistently rejected the Philippines’s recourse to arbitration and has adhered to a position of non-acceptance and non-participation in the proceedings. China did not participate in the constitution of the Tribunal, it did not submit a Counter-Memorial in response to the Philippines’s Memorial, it did not attend the Hearings on Jurisdiction or on the Merits, it did not reply to the Tribunal’s invitations to comment on specific issues of substance or procedure, and it has not advanced any of the funds requested by the Tribunal toward the costs of the arbitration. Throughout the proceedings, China has rejected and returned correspondence from the Tribunal sent by the Registry, reiterating on each occasion “that it does not accept the arbitration initiated by the Philippines.”Footnote 101
The Philippines made a total of fifteen submissions in regard to the merits of the case.Footnote 102 These submissions centred on four principal questions: whether China’s maritime claims (based on the “nine-dash line” and the “historic rights claim”) were contrary to UNCLOS; whether the nine features occupied by China qualified as “islands” or “rocks” under Article 121 of UNCLOS; whether China was in breach of UNCLOS by interfering with the Philippines’ sovereign and fishing rights within the Philippines’s EEZ; and whether China had caused irreversible damage to the Sea’s maritime environment.Footnote 103 In the days leading up to the award on the merits, China engaged in a global public relations campaign to discredit the tribunal, claiming that over forty states supported its position.Footnote 104
In July 2016, the tribunal rendered its unanimous award on the merits of the case.Footnote 105 The tribunal reached a number of important conclusions that effectively undermined the law of the sea aspects of China’s claims. The historic rights claims encompassed by the nine-dash line exceeded the relevant UNCLOS maritime rights and were without legal effect.Footnote 106 None of the features in the Spratlys and Scarborough Shoal produced an EEZ as they are either “rocks” or “low-tide elevations.”Footnote 107 As such, the tribunal concluded that the straight archipelagic baselines cannot apply to the Spratly islands,Footnote 108 nor can the Spratly islands collectively generate maritime zones.Footnote 109 In regard to the third and fourth questions, the tribunal concluded that China violated the Philippines’ sovereign rights (over non-living resources and fishing)Footnote 110 and found China responsible for severe harm caused to the Sea’s maritime environment.Footnote 111
However, the scope of the award is limited to legal issues within the context of UNCLOS. Indeed, the tribunal accepted that the Philippines strategically chose to frame its submissions in UNCLOS terms rather than address China’s historic rights claims as distinct from UNCLOS.Footnote 112 Moreover, the Philippines repeatedly asked the tribunal not to rule on issues of sovereignty.Footnote 113 It has been speculated that the Philippines adopted this tact to avoid possible jurisdictional issues that could be raised by China.Footnote 114 Consequently, the tribunal did not directly engage with China’s historic rights claims in non-UNCLOS terms:
This is accordingly not a dispute about the existence of specific historic rights, but rather a dispute about historic rights in the framework of the Convention. A dispute concerning the interaction of the Convention with another instrument or body of law, including the question of whether rights arising under another body of law were or were not preserved by the Convention, is unequivocally a dispute concerning the interpretation and application of the Convention.Footnote 115
This decision limits the scope of the tribunal’s decision to UNCLOS historic rights, thereby setting aside land sovereignty claims and non-UNCLOS historic rights claims.Footnote 116 This decision is questionable because UNCLOS does not explicitly refer to historic rights, which are generally treated as separate legal regimes.Footnote 117 Critics will likely appeal to this strategic choice and to the tribunal’s questionable reasoning in the Jurisdiction award as a part of a larger effort to undermine the conclusions of the Merits award.Footnote 118
In response to the tribunal’s findings (overwhelmingly) in favour of the Philippines, the Chinese Foreign Ministry dismissed the award as “unjust and unlawful.”Footnote 119 In another statement, China reiterated its historic rights claims over all of the islands in the South China Sea.Footnote 120 Legally speaking, these statements are problematic. Despite China’s refusal to participate in the proceedings, the tribunal’s award is procedurally final and binding on China and the Philippines as parties to the dispute.Footnote 121 From a geopolitical standpoint, full compliance with the award would inevitably lead to a substantial decrease in China’s claimed sovereignty and maritime rights within the “nine-dash” region.Footnote 122 The tribunal’s restrictive interpretation of archipelagic baselines also undermines China’s recent “Four Sha” legal strategy, whereby China is to be considered an archipelagic state (like Indonesia) under UNCLOS.Footnote 123
In its domestic legislation and official statements, China has emphasized the historical dimension of its claims. As the preceding discussion has shown, China’s lack of clarity on these issues has led to a wide variety of interpretations of China’s claim and its legal basis. In the academic literature, there is a widespread belief that China’s legal claims or elements thereof are “ambiguous,”Footnote 124 “idiosyncratic,”Footnote 125 and “vague.”Footnote 126 In its Jurisdiction award and its Merits award, the tribunal reached a similar conclusion: “China has never expressly clarified the nature or scope of its claimed historic rights. Nor has it ever clarified its understanding of the meaning of the ‘nine-dash line.’”Footnote 127 This perception can be chiefly attributed to a larger dispute on the value of evidence in support of China’s position and to China’s lack of formal legal argumentation.Footnote 128 Rather than answer important questions regarding the legal basis of China’s claims, the nine-dash line map reinforces the confusion and ambiguity surrounding China’s claims. Despite scepticism from several stakeholder states, China has not taken the opportunity to officially clarify the legal basis of its claims.
China’s 1992 to Early 2017 Lawfare Strategy
While a distinctly legalistic inquiry into the nature of China’s claims has proven to be inconclusive, an examination of China’s domestic legislation and military acts through the lens of lawfare can help illuminate China’s larger geopolitical project. China’s strategic use of domestic legislation has defined its sphere of influence in the South China Sea. Starting with the 1992 Law, China has used domestic legislation to justify its enforcement over its claimed territories.Footnote 129 Indeed, the 1992 Law restricts foreign activities within China’s territories; while “non-military foreign ships enjoy the right of innocent passage,” military ships must obtain permission from China to enter its claimed territorial sea.Footnote 130 This restriction limits the general innocent passage rights granted to “ships of all States” under UNCLOS (which does not distinguish between warships and other vessels).Footnote 131 This law also affirms that any foreign ships and aircraft must abide by China’s laws, especially those conducting scientific research or marine survey work.Footnote 132 Further developing its regulatory framework, China has enacted specific regulations for research and maritime survey activitiesFootnote 133 as well as for activities related to “natural resources”Footnote 134 and fishing.Footnote 135 In line with UNCLOS, China affirms that vessels require permission to engage in these four activities within its claimed territories.Footnote 136 China also asserts its “jurisdiction” to construct artificial islands.Footnote 137
China’s framework has a distinct national security element. Article 1 of the 1992 Law states that “this law is formulated,” inter alia, to “safeguard State security.”Footnote 138 This purpose has resulted in additional regulations for foreign vessels. While UNCLOS authorizes states to exercise control in the contiguous zone to “prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea,”Footnote 139 China expands this list of powers to include acts that prevent or punish infringements of its “security.”Footnote 140 Under a strict reading of UNCLOS, China does not have the authority to restrict military or intelligence activities in its EEZ.Footnote 141 In 2009, China further expanded its legal regime in approving the Law of the People’s Republic of China on Island Protection, which (for the first time) gave China broad jurisdictional authority over all of its claimed islands to advance its ocean development project.Footnote 142 It also protects China’s military facilities on the islands in the EEZ and continental shelf.Footnote 143
This regulatory framework legitimizes increased Chinese control over the South China Sea, while simultaneously destabilizing competing claims.Footnote 144 Scholars have described this framework as something akin to “historic rights with tempered sovereignty” over the waters and maritime features within the nine-dash line.Footnote 145 Under this view, historical facts justify a peculiar notion of sovereignty in the Sea.Footnote 146 While China has largely adopted UNCLOS notions of EEZ and continental shelf regimes in its domestic legislation, its overall legal infrastructure serves to legitimize an expansive and security-centric notion of sovereignty in the transcending UNCLOS. China’s claim expands upon the notion of non-exclusive historic rights and attributes to itself the right to regulate and control a vast array of resources and activities.Footnote 147 China’s claims thus expand upon other historic rights claims, such as the non-exclusive rights without full sovereignty (typically applicable to traditional fishing rights). Rather than providing mere fishing rights, the post-1992 legal regime provides China with exclusive rights for the purpose of natural resource development and exclusive jurisdiction for marine scientific research, the installation of artificial islands, and maritime environmental regulation. However, China’s claims arguably do not seem to rise to the level of full exclusive sovereignty rights (typically applicable to historic bays).Footnote 148
Although subsidized fishing expeditions and natural resource exploration projects support China’s de facto sovereignty, China’s military has been the primary agent supporting China’s lawfare strategy.Footnote 149 Following its 1992 Law, China is arguably the only stakeholder country to resort to force in a significant way.Footnote 150 These military efforts have been further advanced by an offshore active defence strategy, designed to dissuade rivals from the Sea.Footnote 151 These activities seek to demonstrate China’s effective control over its claimed area of the South China Sea and to deter rival nations from the area.
Following the adoption of the 1998 Law, China started to enforce more actively its maritime claims. Starting in 1998, the Chinese Fisheries Administration and the State Oceanographic Administration began conducting armed maritime security patrols roughly seven or eight times per annum.Footnote 152 On 1 April 2001, two Chinese F-8 fighters flew up to an American EP-3 plane on a surveillance mission in the area.Footnote 153 One of these planes collided into it, destroying the Chinese fighter and damaging the EP-3 plane in the process.Footnote 154 The EP-3 plane then made an emergency landing on Hainan Island. For China, this incident was a violation of the principle of “free over-flight” within its coastal waters.Footnote 155 In response to the incident, China demanded an official apology and released a statement affirming that
[t]he US surveillance plane’s reconnaissance acts were targeted at China in the airspace over China’s coastal area and … abused the principle of over-flight freedom. The US plane’s action also posed a serious threat to China’s security interests, hence it was right for the Chinese military planes to monitor the US spy plane for the sake of China’s state security. The US side should bear full responsibility for the incident.Footnote 156
The EP-3 incident began a trend of increasing aggressiveness by China in protecting its interests on both military and economic fronts.Footnote 157 In 2005, China further developed its maritime patrol program; this time with support from vessels permanently stationed at one of China’s largest facilities in the Spratlys.Footnote 158 In the summer of 2007, China told a number of international oil and gas firms to stop exploration work with Vietnamese partners in the South China Sea or face “unspecified consequences” in their business dealings with China.Footnote 159 In March 2009, five Chinese vessels (including a Chinese frigate and a Y-12 aircraft) harassed the USNS Impeccable.Footnote 160 A Chinese intelligence ship contacted the ship’s bridge informing them that its “operations [were] illegal.”Footnote 161 The US Department of State and the US Department of Defense filed complaints with the Chinese embassy, after Chinese crews disrobed and started shouting at the American vessel.Footnote 162 In response to the American protests, China argued that the presence of the Impeccable was a violation of China’s domestic laws and international law.Footnote 163
Much like the EP-3 incident, China responded to the Impeccable incident with acts that increased friction in the area. In the same month, the Chinese navy harassed an American vessel (the USNS Victorious) in the Yellow Sea, claiming that it violated China’s EEZ.Footnote 164 In March 2010, the Chinese navy deployed one destroyer, three frigates, a tanker, and a salvage vessel to travel through the South China Sea. According to one commander, the purpose of the operation was “to project its maritime territorial integrity through long-distance naval projection.”Footnote 165 In November 2010, China also held an amphibious landing training exercise with more than 1,200 marines.Footnote 166
The United States is not alone in being a victim of China’s increased aggressiveness following the Impeccable incident. On 22 July 2011, the Indian Navy Ship (INS) Airavat departed from a Vietnamese port. When the ship was approximately forty-five miles from the Vietnamese coast, Chinese navy officers informed the ship that it was entering “Chinese waters.”Footnote 167 Although India did not lodge a formal complaint, China issued a statement condemning India’s involvement in the South China Sea.Footnote 168 This incident is regarded as a marker of India’s increased interest in the Sea.Footnote 169 In May and June 2011, Chinese vessels interfered with at least three different Vietnamese ships conducting seismic surveys within Vietnam’s claimed EEZ by severing the ship’s cables.Footnote 170 These incidents come two years after China seized Vietnamese fishing boats operating in China’s claimed EEZ.Footnote 171 In 2011, the Philippines reported seven incidents involving Chinese harassment in the South China Sea.Footnote 172
Following the tribunal’s 2016 award, China has been able to transform a legal defeat into a political victory through military and diplomatic action.Footnote 173 While the tribunal found that China aggravated the dispute through the construction of artificial islands,Footnote 174 China has continued their construction. Since 2013, China has created seven artificial islands in the Spratly Islands, totalling more than 3,200 acres.Footnote 175 China has also continued to protect its claims through frequent military missions, despite the tribunal’s conclusion that previous missions of this type had violated the Philippines’ sovereign rights.Footnote 176 Diplomatic efforts have also rendered the award ineffective. As of August 2017, only seven states have called on China to comply with the award (down from forty-one states prior to the ruling), while the rest of the states have either sided with China or remained neutral.Footnote 177 This was made possible by the Philippines and the United States who chose not to enforce the award.Footnote 178 The Philippines, for instance, could have demanded China’s compliance with the award through international forums, such as ASEAN or the UN General Assembly—something it has yet to do. While President Barack Obama called on China to comply with the award, the United States has not taken concrete steps to enforce it.Footnote 179
While not explicitly seeking to enforce the award, the United States and its allies have sought to protect navigational rights in the area. In order to counter China’s excessive baselines and EEZ claims, the United States has embarked in a series of freedom of navigation operations (FONOP) in the South China Sea near China’s artificial islands.Footnote 180 In May 2017, the United States conducted its first FONOP mission under President Donald Trump, with the USS Dewey sailing within twelve nautical miles of a Chinese artificial island in the Mischief Reef.Footnote 181 In July 2017, the US navy conducted another FONOP near Triton Island, an artificial island in the Paracel archipelago.Footnote 182 A third FONOP mission was conducted in August 2017.Footnote 183 Likewise, the British navy announced in July 2017 that it would deploy two aircraft carriers to protect “freedom of navigation” and “global trade.”Footnote 184
These missions have prompted a diplomatic debate between the United States and China. In response to one of these missions, China’s Ministry of Foreign Affairs expressed “strong dissatisfaction” and “displease[ure].”Footnote 185 In turn, an American Pacific Fleet spokeswoman said that all navy operations “are conducted in accordance with international law and demonstrate that the United States will fly, sail, and operate wherever international law allows.”Footnote 186 The top US commander in the Pacific, Admiral Harry Harris, denounced China’s construction of artificial islands and added: “I believe the Chinese are building up combat power and positional advantage in an attempt to assert de facto sovereignty over disputed maritime features and spaces in the South China.”Footnote 187 Indeed, this view is also shared by the tribunal in its 2016 award: “China has effectively created a fait accompli at Mischief Reef by constructing a large artificial island on a low-tide elevation located within the Philippines’s EEZ and continental shelf.”Footnote 188 In the coming years, Western FONOP missions and China’s reactions to them will test the acceptability of each party’s claims in the area.
China’s Lawfare Strategy and American Geopolitics
China’s long-term geopolitical ambitions of establishing itself as a sea powerFootnote 189 can account for the way in which China has conceptualized and defended its South China Sea claims. Indeed, military forces have provided the means to enforce its legal regime. Recent history (for example, the EP-3 and Impeccable incidents) has shown a China unafraid of resorting to force to exert control even to the detriment of powerful Western countries. On the geopolitical level, China is, in many ways, following the American playbook. Much like the United States of the nineteenth and twentieth centuries, China has turned to American naval strategist Alfred Thayer Mahan for inspiration.Footnote 190 Roughly since the 1950s, the Chinese military has studied Mahan’s works.Footnote 191 Chinese officers are known to frequently quote Mahan in conferences and strategic literature.Footnote 192 This appreciation is in part responsible for a number of similarities between the US strategy (then a “new power”) and China’s current strategy. From a geographic standpoint, the South China Sea shares several important similarities with other Mahanian bodies of water.Footnote 193 As James Holmes has observed, several land features in the South China Sea resemble ones in the Caribbean; Taiping Island, for example, is said to resemble Jamaica in relative location and appearance.Footnote 194 Much like the Mediterranean and the Caribbean, the South China Sea is ringed at its western and northern edges. Furthermore, others have made parallels between the Panama Canal and the Strait of Malacca in terms of their geographic location and importance for world trade.Footnote 195
Following his analysis of the Gulf of Mexico and the Caribbean Sea, Mahan advocated for increased control over these waters. At the time, the Caribbean was of utmost geopolitical importance due to its strategic location and potential for resource wealth.Footnote 196 While the Americans did not possess a navy strong enough to protect its interests, Mahan advocated for a gradual build-up of its navy, much like the British Empire did to gradually control the Mediterranean. Viable military bases and a strong navy, Mahan argued, must have “strategic lines” of support.Footnote 197 Mahanian strategy thus recommended the establishment of “bases” of operations that connect “lines” of operation within a body of water.Footnote 198 This strategic infrastructure would help defend the naval power from foreign attacks and place it at a strategic advantage. Applied to the South China Sea context, a Mahanian approach would advocate for the development of naval bases and for a protective stance towards foreign vessels.Footnote 199 To this end, China has also rapidly expanded its navy and continued its construction of artificial islands (for example, in the Mischief Reef).Footnote 200 Under a Mahanian framework, these islands serve as important bases of operation and important points on strategic lines of support. This infrastructure affords China the opportunity to enforce its control over large areas of water or to create a hostile environment for foreign vessels. The aforementioned examples of interference serve as reminders of China’s increased capabilities in this regard.
This Mahanian approach is complimented by a strategy of delay, which is used to defuse rival claims and to avoid definitive settlements detrimental to Chinese interests. China seems to be employing a “ripe fruit” strategy in the South China Sea, whereby China bides its time until it develops the necessary military capacity to further control the South China Sea.Footnote 201 This is similar to how the United States sought to protect the Caribbean from British influences until the United States could develop its own brown water navy.Footnote 202 This “ripe fruit” strategy has manifested itself in stalled negotiations, delayed settlements with coastal states, and unenforced agreements, which allow China to pursue control of the Sea at a more “leisurely” pace, especially following the Impeccable incident.Footnote 203 While the ASEAN members hoped that the 2002 ASEAN GuidelinesFootnote 204 would create a shared area and allow for freedom of navigation and overflight, China’s acceptance of the agreement did not materialize in any major changes to the status quo.Footnote 205 In its 2014 position paper,Footnote 206 China affirmed that “China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations.”Footnote 207 However, as the tribunal held in the case, the Philippines had sought to negotiate with China, and it is under no obligation to “continue negotiations when it concludes that the possibility of a negotiated solution has been exhausted.”Footnote 208 This conclusion could be interpreted as an implicit accusation of bad faith in regard to China’s efforts to negotiate,Footnote 209 despite attempts at negotiation.Footnote 210 In 2017, ASEAN, the United States, and some of its allies have called for a new code of conduct in the Sea.Footnote 211 China’s slow efforts to compromise on this issue may well be another delay tacticFootnote 212 or further evidence of its preference for a bilateral solution to this dispute.Footnote 213
China’s Lawfare Strategy Is Not Legally Unprecedented
There is a trend in the academic literature casting China as a great power intent on setting new and dangerous legal precedents or radically redefining law in its attempts to ground its geopolitical strategy in legal terms.Footnote 214 This general trend is associated with critical assessments of China’s specific claims. According to one scholar, China is trying to redefine the “basic navigational and operational freedoms provided for under UNCLOS” and change the wording of UNCLOS.Footnote 215 For another, China’s ancestral claims have sought “to either revise international law or gain a special exception to it.”Footnote 216 Others conclude that China is setting new precedents in regard to the superseding nature of its domestic legislation.Footnote 217 However, the history of international law suggests that China is, again, simply following in American footsteps. Rather than rejecting international norms, China has sought to enforce existing exceptions and to selectively preserve elements of existing law in the areas of effective occupation, historic rights, and EEZs.
EFFECTIVE OCCUPATION
Effective occupation refers to the ability and intention to exercise continuous and uninterrupted jurisdiction over a territory without a sovereign title.Footnote 218 While Island of Palmas Footnote 219 and the Legal Status of Eastern Greenland Footnote 220 were early cases defining the rules for territorial acquisition, the “normal standard” for effective occupation was later synthesized by the arbitral tribunal in the 1998 Award of the Arbitral Tribunal in the First Stage of the Proceedings between Eritrea and Yemen:
The modern international law of the acquisition (or attribution) of territory generally requires that there be: an intentional display of power and authority over the territory, by the exercise of jurisdiction and state functions, on a continuous and peaceful basis. The latter two criteria are tempered to suit the nature of the territory and size of its population, if any.Footnote 221
Critics (and competing states) frequently point out that China’s activities in the South China Sea are redefining the law of effective occupation. They generally conclude that China’s claims are contrary to current norms in two respects. First, it has been suggested that the contested nature of its claims prevents China from making an effective occupation claim.Footnote 222 Indeed, state controversy can render an effective occupation claim illegitimate by violating the criterion of peaceful occupation.Footnote 223 Second, some commentators and Vietnam question whether a map can, on its own, establish a claim of effective occupation.Footnote 224 Under this second critique, China’s territorial claim is nominal (and mostly confined to documentary sources) and does not qualify for “actual” occupation, according to the standard set in the Arbitral Award on the Subject of the Difference Relative to the Sovereignty over Clipperton Island:
It is beyond doubt that by immemorial usage having the force of law, besides the animus occupandi, the actual, and not the nominal, taking of possession is a necessary condition of occupation. This taking of possession consists in the act, or series of acts, by which the occupying state reduces to its possession the territory in question and takes steps to exercise exclusive authority there.Footnote 225
Both of these critiques are predicated upon the normal standard of occupation and normal evidentiary standards. While not contradicting these critiques, it is questionable whether these common rules of effective occupation are applicable in the peculiar context of the South China Sea, as many of the features in the South China Sea can be described as “remote” and/or “uninhabited.”Footnote 226 The Pratas and Zhongsha islands are unpopulated.Footnote 227 The Paracels and Spratlys with combined population of a little over 1,000 have only recently been populated by the coastal states (likely only to demonstrate control over these islands).Footnote 228 Woody Island, the largest island in the Paracels, did not have potable water until 1996.Footnote 229 One could argue that state practice and international jurisprudence have shown that a different standard applies in the case of abnormal territories such as these.Footnote 230 Indeed, the International Court of Justice (ICJ) confirmed that a lower standard may apply in cases of unpopulated or barely inhabited areas where there is “very little in the way of actual exercise of sovereign rights.”Footnote 231 Similarly, the Island of Palmas case recognizes an exception to the general rule:
Manifestations of territorial sovereignty assume, it is true, different forms, according to conditions of time and place. Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of a territory. The intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved.Footnote 232
This exception was further defined in the Eastern Greenland case for territories that are sparsely populated:
[I]t is impossible to read the records of the decisions in cases on territorial sovereignty without observing that in many cases the tribunal has been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other State could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries.Footnote 233
In its jurisprudence, the ICJ and at least one arbitral tribunal have consistently referred to this exception (the Eastern Greenland standard) in cases of occupation of difficult or inhospitable areas.Footnote 234
In light of this lower standard (which does not require extensive evidence or effective administrationFootnote 235), China’s claims become more compelling. Following the standard for sparsely populated areas, acts of discovery and exploration may be sufficient to establish territorial sovereignty. Other states, such as the United States (for example, Johnston Island), France (for example, Clipperton Island), and Mexico (for example, Clarion Island) claim jurisdiction over uninhabited features and are unlikely to oppose higher evidentiary standards.Footnote 236 Historic evidence suggests that China may meet this standard, as Chinese exploration or control in the South China Sea occurred before other claimant states.Footnote 237 China has conducted maritime surveys of the Spratlys and Parcels since 1279,Footnote 238 published maps of the Sea since at least 1330,Footnote 239 and ordered maritime patrols in the region since the thirteenth century.Footnote 240 Moreover, China first discovered many of the South China Sea Islands in the twenty-first century BCE.Footnote 241 In comparison, Vietnam bases its claim on historical evidence dating from the sixteenth to nineteenth centuries.Footnote 242 While this brief sketch of the historical evidence is not sufficient to support China’s claims, it should at least challenge critics holding China to the higher evidentiary threshold, as required under the normal occupation standard.
HISTORIC RIGHTS
While China has asserted rights to its alleged historic waters and islands, the exact nature of this claim has been described as “ambiguous,” due to China’s lack of consistency regarding its claim.Footnote 243 Chinese scholars have suggested that the South China Sea is akin to other historic waters (such as France’s Bay of Cancale, Norway’s Varangerfjord, Canada’s Hudson Bay, and the Soviet Union’s Peter the Great Bay) and should therefore be entitled to historic rights.Footnote 244 At various times, China has referred to the historic dimension of its claims as either “historic rights,” “historical rights,” “historic title,” or “historic waters.”Footnote 245 Despite its ambiguity, China’s claim has been criticized for being too expansive. States have been sceptical of China’s use of the notion for expanding historic rights beyond mere rights to certain fishing activities.Footnote 246 In the Merits award, the tribunal dismissed China’s historic rights claim as unfounded under UNCLOS.Footnote 247 The tribunal’s questionable reasoning is predicated on the view that UNCLOS supersedes historic rights:Footnote 248 “The Tribunal concludes that the Convention superseded any historic rights or other sovereign rights or jurisdiction in excess of the limits imposed therein.”Footnote 249
However, China’s ambiguity may be related to the debate surrounding the legal notion of historic rights.Footnote 250 The lack of clear criteria for historic rights claims is something that has existed at least since the United States claimed the Delaware Bay as a part of its waters.Footnote 251 In fact, most modern historic rights claims tend to be unilateral claims that do not enjoy support from the international community.Footnote 252 Rather, the notion of historic rights appears to be a contextual notion based on the history of the body of water in question. In the Land, Island and Maritime Frontier Dispute, the ICJ noted that it was “clearly necessary … to investigate the particular history of the Gulf of Fonseca to discover what is the ‘regime’ of the Gulf resulting there from.”Footnote 253 Rather than a set of monolithic criteria, historic rights must be evaluated in terms of context-specific history as the notion of historic rights is not confined to a single set of geographies. As the ICJ stated in the Case Concerning the Continental Shelf (Tunisia v Libyan Arab Jamahiriya), there is no single “regime” for historic rights; they are generally recognized on a case-by-case basis.Footnote 254 This necessity for a contextual analysis is associated with the lack of clear rules regarding the notion of historic rights. As the expert Zou Keyuan argues, “the concept of historic rights is not clearly defined in international law … there are no definite rules in international law which govern the status of historic maritime rights.”Footnote 255 As such, the claim that China is in clear violation of these rules should be regarded with some scepticism.
EEZ
Through domestic legislation and military enforcement, China’s regulatory framework does expand the concept of EEZ to encompass protection against military activities.Footnote 256 Various commentators have alleged that the addition of this component is precedent setting.Footnote 257 According to one scholar, China’s concept of EEZ “presents a direct challenge to the long-standing freedoms provided by the Law of the Sea; if realized, it would set a dangerous precedent that could have a destabilizing effect in the region and throughout the broader maritime world.”Footnote 258 As James Kraska has argued, China is attempting to transform EEZs “from simple areas of resource rights and jurisdiction into something akin to territorial seas, restricting foreign military operations in more than one third of the world’s ocean area through assertions of sovereignty.”Footnote 259 This perception is also shared by American navy attorneys, who believe China’s lawfare strategy seeks to deny access to warships and aircraft of other states in the region.Footnote 260 If true, China could be the gatekeeper for maritime and airspace traffic in the South China Sea and prevent foreign vessels from accessing the region.Footnote 261
However, this depiction of China’s actions as being precedent setting does not account for its various precedents in international law. In 1973, Libya claimed that the Gulf of Sidra was its own internal waters and asserted its right to conduct military activities,Footnote 262 despite Libya’s controversial claim that it was a historic bay.Footnote 263 Much like the South China Sea, the Gulf of Sidra has been the stage of standoffs involving the United States wanting to protect navigation rights.Footnote 264 Furthermore, several states have adopted a military approach to EEZs in times of conflict. During the Falklands War, the United Kingdom declared a 200-nautical-mile military exclusion zone and banned ships of all nations from entering the zone. Argentina responded in turn by creating their own military exclusion zone along its coast.Footnote 265 In January 2002, Israel seized a Tongan-flagged vessel on the Red Sea for carrying a reported fifty to eighty tons of armaments into Palestine.Footnote 266 Precedents also exist in times of relative peace. In December 2002, Yemeni authorities stopped a North Korean vessel near its coast after discovering Scud missiles on board.Footnote 267 During the summer of 2000, Japan filed seventeen official complaints to states for undertaking naval intelligence operations along its coast.Footnote 268 Similarly, one scholar notes that Russia has employed strategies of “creative legal ambiguity” and instrumentalized its domestic legislation to advance its own controversial EEZ claims in the northern sea route area.Footnote 269 While China has been aggressive in enforcing its military EEZs, states are increasingly using the EEZ concept to protect them from potentially hostile vessels. The idea that China is setting an entirely new precedent should therefore be nuanced in light of these precedents.
CHINA’S USE OF STRATEGIC VAGUENESS
As some have argued, China has adopted a lawfare strategy of “ambiguity” and sought to exploit legal grey areas in order to advance its geopolitical agenda.Footnote 270 From a political point of view, the ambiguity surrounding China’s legal position may seem less than optimal, as ambiguity surrounding its claims could lead to confusion or reduce their acceptability in the international arena. However, strategic ambiguity itself is a part of China’s greater geopolitical ambitions. Indeed, it is a lawfare tactic intended to further its longer-term ambitions. Two reasons may account for China’s embrace of strategic ambiguity. First, ambiguous legal claims afford China the flexibility to modify the legal basis of its claims.Footnote 271 In China’s quest to find internationally acceptable language for its geopolitical ambitions, this flexibility could prove to be important, considering the changing nature of international law. Second, this “strategic ambiguity” helps protect its potential sphere of influence from rival claims.Footnote 272 China wants to maintain control over the South China Sea long enough to fully obtain sovereignty over it. It is a stepladder over competing claims.Footnote 273 For the moment, China does not have the necessary military capacities to adequately defend the South China Sea as if it were its own sovereign territory.Footnote 274 As a result, China has resorted to a long-term strategy to protect the potential of the South China Sea as its zone of influence and consolidate its claims.Footnote 275 By destabilizing competitors and laying the groundwork for its own claim, China ensures that it can seize upon the opportunity to control the Sea once it develops its capacity. In the long term, China will be able to exploit this ambiguity and make expansive claims to match its increasingly powerful military, allowing it to transform its weak claims into stronger ones.Footnote 276
China’s use of strategic ambiguity (within a greater lawfare strategy) is reminiscent of the United States during its own rising period, when it fashioned (vague) legal norms to advance its geopolitical interests. To take one example, in 1856, Congress passed the Guano Islands Act, which enabled citizens of the United States to take possession of any unclaimed island containing guano deposits (seabird, seal, or cave-dwelling bat excrements that are used especially for fertilizing purposes).Footnote 277 Section 1 of the Act reads:
Whenever any citizen of the United States discovers a deposit of guano on any island, rock, or key, not within the lawful jurisdiction of any other government, and not occupied by the citizens of any other government, and takes peaceable possession thereof, and occupies the same, such island, rock, or key may, at the discretion of the President, be considered as appertaining to the United States.Footnote 278
This exceedingly vague law provoked a “guano rush” among expansionist entrepreneurs and resulted in the acquisition of over 100 islands in the Caribbean and Pacific,Footnote 279 including several islands (for example, Swains Island) where no evidence of guano was ever found.Footnote 280 The United States has maintained claims to twelve of these islands and their respective EEZs (even though many of them are uninhabited) by virtue of this law.Footnote 281
Even though the law of the sea has substantially developed since the era of the Guano Islands Act, it still lacks the strength required to settle such sovereignty-related disputes.Footnote 282 This relative weakness enables rising powers to advance their geopolitical interests. This is especially evident considering recent developments following the tribunal’s award. Even though the tribunal concluded that UNCLOS supersedes any historic rights or sovereignty claim in the South China Sea,Footnote 283 China still maintains that its historic claims give it sovereignty over the region. This is a marked contrast with other coastal countries (for example, Vietnam and the Philippines) that base their legal arguments in terms of UNCLOS.Footnote 284 Although some commentators have attempted to ground China’s claims in UNCLOS terms,Footnote 285 a stronger UNCLOS could result in it superseding historic rights claims, something that could significantly undermine the legal basis of China’s claims.Footnote 286 Even if UNCLOS were to support the legal basis of China’s claims, UNCLOS’s provisions on good faith and equity could substantially reduce the size of China’s claimed territory or open up China’s territory for its coastal neighbours.Footnote 287
Conclusion
A key theme in China’s approach to the South China Sea dispute is China’s quest to couch its geopolitical strategy in acceptable legal terms.Footnote 288 This has not been an easy task, as many of their claims are seemingly based on precedents established to benefit rising powers and other states in an earlier era. Despite this, China’s rise on the world stage has resulted in greater weight to enforce the acceptability of its expansive claim. Recent history has shown that China is unafraid of backing up its lawfare tactics with military force.Footnote 289 This confidence will seem all the more rational once China achieves greater military and economic superiority, much like the United States during the nineteenth and twentieth centuries. Going forward, is China’s increasing aggressiveness going to be the start of a Chinese expansionism, as some have suggested?Footnote 290 Probably not. China’s seeming aggressiveness has thus far been confined to territories it sees as a part of China, such as Taiwan, Tibet, and the South China Sea.Footnote 291 In its geopolitical dealings, China has generally been pragmatic and has generally not been driven by long-term diplomatic philosophies.Footnote 292
Insofar as its South China Sea claims constitute a microcosm for its general approach to international law, recent history suggests China will take advantage of existing exceptions and precedents rather than completely rewrite international law.Footnote 293 China’s approach to the South China Sea shows striking similarities to the actions of the United States in the nineteenth and twentieth centuries. As Barry Buzan observes, “[i]ronically, the most obvious comparator for China’s peaceful rise … is the United States” as both countries have favoured economic development over military power and adopted a policy of military restraint, until they shifted to a stronger stance.Footnote 294 In a sense, there is a double standard in the United States defending strong views of freedom of navigation in the South China Sea while fighting against such views during its imperial period. This double standard is made starker by their respective reliance on exploiting legal ambiguities. As Christopher Rossi notes, “China’s sense of entitlement … is also informed by an underlying sense of inequality, inconsistency, historical sensitivity, and imperial double-dealing.”Footnote 295
Much like the United States, China has taken advantage of legal “grey areas” to expand its sphere of influence. While China has been criticized for being vague in its claims, one must not forget the vagueness of America’s maritime claims in a previous era. President Harry Truman’s official declaration that “the natural resources of the subsoil and seabed of the continental shelf beneath the high seas but contiguous to the coast of the United States (were) subject to its jurisdiction and control”Footnote 296 sounds shockingly similar to China’s 1998 Law that stipulates that China shall “exercise its sovereign rights and jurisdiction over its exclusive economic zone and its continental shelf” and that it “exercises sovereign rights for the purposes in terms of exploring and exploiting, conserving and managing the natural resources of the waters superjacent to the sea-bed and of the sea-bed and its subsoil.”Footnote 297 History does indeed rhyme.
