The future of the South China Sea and other disputed waters will be decided

by China’s approach to international maritime law.

By: Margaret Solice

In December 2014, Chinese officials rejected the United Nations’ proposal for international arbitration to resolve territorial disputes with the Philippines in the South China Sea.²⁷ Several media outlets characterized the rejection as an aggressive violation of international law. Later, China’s refutation of U.S. State Department claims led to allegations that the Chinese intended to directly challenge U.S. regional hegemony. In sum, despite its past efforts to articulate its position as a peaceful, cooperative power in the international system, China has faced extreme criticism and fear. Recent events and rising tension may force policymakers to answer the possible nexus question of the current century: will China attempt to overthrow the existing international order or become a part of it?

Following China’s integration into the international system through the Reform and Opening policies in 1978, China drastically altered the global distribution of power. China has overtaken the U.S. as the largest trading nation in the world with exports amounting to over $2.2 trillion and imports bordering $2 trillion, with total economic output accounting for 15 percent of the global economy.²¹

Evolving policies in the South China Sea reflect a desire to acquire power.

During the unprecedented Asian Financial Crisis of the 1990s, China emerged as the only Asian nation able to maintain robust economic growth.⁸ This sustained economic growth allowed Chinese investment in advanced military technology. Although the nation’s military expenditures lag considerably behind the U.S., China’s military has progressed significantly. In fact, Chinese military expenditures grew by 12 percent in 2014.²

Perennial maritime disputes in the South China Sea (SCS) continue to strain intra-regional relations in Asia, triggering fear of Chinese growth. Seven nations assert overlapping maritime claims in the region, making it one of the most complicated inter-state disputes in history.⁶

Due to the wealth of natural resources and relation to the world’s busiest international sea lanes, the SCS draws interest from major naval powers. Several other countries, including the U.S., India, Japan, and Australia monitor shifting Chinese policy toward territorial and jurisdictional disputes. Nations have historical reasons for wariness regarding China’s intentions and ambitions in the SCS.

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Numerous scholars warn that territorial disputes are more likely to end in war than stalemate. In a multi-century comprehensive study, John A. Vasquez demonstrates that territorial claims account for the majority of wars between 1648 and 1989, and an overwhelming 79 percent of wars between 1945 and 1989.²⁶ Military responses to land and maritime disputes also commonly appear in the China’s history, whose evolving policies in the SCS reflect a desire to manipulate international maritime law in order to acquire power.

Concerns about China’s SCS policy must be evaluated within a larger context: the debate surrounding China’s rise. While status-quo theorists argue that China accepts the existing international order, some realists see ulterior motives. Mearsheimer argues that China’s impressive economic growth will propel the U.S. and China into deep security competition, resulting in war within the next 50 years.¹⁹ This conclusion rests upon the assumptions that China will pursue regional hegemony and that the U.S. will attempt to contain China, preventing it from dominating Asia.³ Yet many scholars warn against Mearsheimer’s view. Kirshner denies Mearsheimer’s assumption that hegemony is China’s only option, revealing that bidding for hegemony may lead to destruction, while the mere existence of a great power competition does not. Instead, Kirshner calls for China to pursue policies that reflect intentions of a peaceful rise to great power status.⁸

Nevertheless, Mearsheimer predicts that China will pursue regional hegemony prior to a global challenge to the U.S., leading to an American-led balancing coalition to counter Chinese influence.²⁰ China’s emergence as a regional hegemon in Northeast Asia may create the most dangerous scenario the U.S. faces in the early 21st century as regional instability increases due to competitive interactions among powers and international institutions.^{24, 10}

Following China’s acceptance as a member of the United Nations in 1971, it joined the United Nations Convention on the Law of the Sea III (UNCLOS III) in 1996. Initially, China crafted its image as a defender of developing nations by vocally criticizing western hegemony and imperialism. China established this advocacy by co-submitting working papers and offering unconditional support for allies’ policies, many of which were in opposition to Chinese interests. Additionally, the Chinese delegation argued that western powers prevented the emergence of successful oceanic governance by institutionalizing hegemonic ordering.²⁵ This aligned with Chinese policies in other international institutions, where China resisted openly accepting the existing global system. China’s initial involvement in international maritime regime (IMR) created a counter narrative–or ideology–to stand in solidarity with developing nations. However, China’s inability to engage existing institutions prevented it from outlining its objectives, much less achieving them.

Clarifying the legal basis for territorial claims has invited several challengers.

This position was not permanent, and China’s international involvement transformed its legal positions regarding territorial disputes in the South China Sea. Lo identifies this trend by comparing Chinese statements regarding conflict with the Philippines over the Spratly Islands. Prior to UNCLOS III participation, China based its legal position in the SCS on sovereignty, not fully predicting the potential for conflict. However, “its participation in the United Nations Seabed Committee during 1972-73 certainly changed that,” since from 1974 onwards, China’s statements on the disputes over the Spratly and Parcel Islands articulated claims to maritime space.^16A Beijing adopted provisions outlined in the UNCLOS III, which granted them support for more than the 12 nautical miles they had previously claimed. Similarly, China modified its position towards UNCLOS following the 1978 leadership change.

While previous testimony lacked legal terminology and specificity, and attempted to wage an ideological war, post-1978 statements demonstrated a more comprehensive understanding of international legal institutions and precisely outlined Chinese objectives.^16A

This reveals that Chinese officials learned how to navigate international institutions, adapting to be in line with UNCLOS expectations. Despite China’s adaptation to international maritime institutions, clarifying the legal basis for territorial claims has evoked challengers. The Philippines, Malaysia, and Brunei challenged China legally. Previously, the Philippines claimed parts of the Spratly Islands based on proximity and discovery, neither of which UNCLOS III supported.

In 1976, the Philippines renewed their claims. In addition to the previous justifications, Manila noted that the disputed territory fell within the confines of the nation’s continental shelf.^16B Two years later, the Filipino government formalized these claims and expanded the scope of its claimed territory via two presidential decrees. The first reiterated the continental shelf justifications, and the second established an Exclusive Economic Zone extending 200 nautical miles beyond territorial sea.²³ In 1979, Malaysia claimed parts of the Spratly Islands with the same continental shelf justification.^16C By establishing an Exclusive Economic Zone in accordance to UNCLOS, Brunei also claimed areas in the South China Sea.

China has failed to gain uncontested sovereignty over disputed territory through international institutions. As of 1987, China did not have a presence in the SCS. In addition to challenges through international law, other nations asserted their sovereignty by occupation. Competing occupations occurred throughout the 1970s and early into the 1980s.^16B China waited until the 14th annual inter-governmental United Nations Educational, Scientific and Cultural Organization (UNESCO) conference to establish a presence in the Spratly Islands.⁷ UNESCO requested five Chinese observations in the region to help set up a Global Sea Level Observing System (GLOSS).⁷ This gradual Chinese naval build up and tense relations with Vietnam resulted in an armed clash at Johnson Reef on March 14, 1988.⁷

The Chinese approach to IMR drastically changed in the 1970s. Rather than promoting a vague counter-ideology to Western markets, China outlined specific political goals and articulated them in precise legal language. China made efforts to legitimize its territorial claims with international doctrine, even modifying its statement of legal claims in the domestic sphere. Perhaps China’s internalization of IMR in the 1980s signals an acquiescence to global norms. However, China’s use of international research efforts like UNESCO and GLOSS within the region demonstrate its ability to manipulate international institutions to serve its own political objectives.

During the 1990s and early 2000s, Chinese delegates focused domestic efforts upon dealing with IMR. These domestic debates proved telling of Chinese strategy. Li Zhaoxing argued that ratifying UNCLOS would enhance the PRC’s international credibility. In reality, it could only strengthen the PRCs territorial claims in the SCS.

Next, in 1992 and 1998 China enacted the Law of the People’s Republic of China on the Territorial Sea, and the Contiguous Zone and the Law on the Exclusive Economic Zone and the Continental Shelf, respectively. These pieces of legislation solidified IMR interpretations of Exclusive Economic Zone, the continental shelf, and historic claims.¹⁵ Following China’s proactive decision to formalize legal claims via international law, many more countries emerged to assert competing claims.

The Chinese approach gradually crafts international law with benevolence.

On May 6, 2009, Malaysia and Vietnam made a joint submission to the Commission on the Limits of the Continental Shelf (CLCS) regarding the continental shelf in the SCS; a day later Vietnam made a second independent submission to the CLCS regarding disputed territory with China.¹⁷       That day, China submitted two notes to the UN-Secretary General, using the nine-dash line to advance its sovereignty claims in the SCS.¹³ In 2011, China clarified its intention to use the nine-dash line through a series of Note Verbales submitted to the UN. These argued that historical and legal evidence supported Chinese claims of “sovereignty and related rights and jurisdiction.”²² China also submitted positions regarding sovereignty claims over the Spratly Islands. These cited IMR and domestic policies regarding the continental shelf and Exclusive Economic Zone.¹⁴

The policies that China pursued in response to the Malaysian and Vietnamese sovereignty challenges of 2009 reveal China’s deployment of IMR. Furthermore, they originate from policies that China adopted many years prior. This reveals that the Chinese approach crafts international regimes with benevolence, ultimately granting more power. Although the 1990s appeared to lack strategy, it proved to be essential in staking aggressive legitimate territorial claims in the years that followed.

China’s has used IMR to legitimize its sovereignty claims, rather than arrive at peaceful agreements to settle disputes. These examples demonstrate China’s wish to define international institutions, but not necessarily an immediate desire to challenge to the U.S. While the U.S. has withdrawn several global organizations, China has taken a different approach by embracing institutions’ power.

In order to accurately predict the future of great power relations and territorial disputes, we must not neglect the craft of international legal document development. The relationship between IMR and Chinese sovereignty claims offers an important entry point into this valuable discussion of international relations. Finally, China’s approach to international law will likely dominate this century. Without contestation by the international community, this domination may become dangerous. C