Recently, Philippines Defence Secretary, Gilberto Teodoro Jr., was briefly interrupted by a passing note during Seoul’s Defence Dialogue conference. Teodoro, an outspoken critic of the People’s Republic of China’s (PRC) aggressive foreign policy in the region, read the note aloud. It stated its contentious position in the South China Sea, and denigrated the PRC’s view: ‘Their arbitration violates fundamental principles of international law’.
For over a decade, a geopolitical cyclone has fermented in the Western Pacific Ocean. The PRC has been accused by multiple countries of ‘salami-slicing’ maritime territory, managing to purloin areas of the Pacific where it claims sovereignty without instigating war. The People’s Liberation Army (PLA) has engaged in various ‘grey-zone’ activities—coercive behaviour that remains below the threshold of warfare—allowing them to pursue incremental gains in regions close to Taiwan, the Philippines, Malaysia, Brunei, and Vietnam. With ‘salami-slicing’ representing the military strategy, and ‘grey-zone’ illustrating the methods employed to achieve the strategy. The PRC claims most of the South China Sea and has not been shy in challenging international law over its exclusive control.
There is a conflict between international law and coercive maritime behaviour. The PRC uses ‘lawfare’ tactics to misuse international legal conventions with the intention of achieving its political objectives. These objectives include eroding Taiwan’s sovereignty, establishing control over various shoals and fisheries, and exploring crude oilfields and natural gas reserves. When the PRC achieves its military strategy, an estimated annual natural gas production of 200 billion cubic meters from the South China Sea could fulfil 58% of the PRC’s demands. As the second-largest consumer of petroleum and with over US$3 trillion of regional trade, the PRC disregards international standards in its pursuit of asserting its development of resources and territory.
The term ‘lawfare’ has been used sporadically in International Relations. The term criticises states who use international law to make claims against other states, legitimising war, or utilising legal frameworks to achieve military objectives. In the case of the South China Sea, all of these definitions are on display. There are three legal rulings and conventions related to the region: first, the United Nations Convention on the Law of the Sea (UNCLOS); second, the ASEAN-China Declaration on the Conduct of Parties (DOC) in 2002; and third, the South China Sea Arbitration Award in 2016. They all constitute the sovereign right to freedom of navigation and aim to shape the behaviour of countries that reside in the tumultuous region. Below is a sample of the ASEAN-China DOC:
The Parties reaffirm their respect for and commitment to the freedom of navigation in and overflight above the South China Sea as provided for by the universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea;
So, why does the PRC violate these conventions? Its attitudes to maritime sovereignty differ fundamentally from Western-inspired international law. Contemporary international law traces its roots to Hugo Grotius and Emer de Vattel, who envisioned conduct between states under natural law regarding war and sovereignty. The central argument is that the sea should remain open to navigation and trade according to the principle of Mare Liberum (freedom of the seas), and should not be possessed by any sovereign state. The PRC’s argument, however, rests on ‘historic claims’. According to the PRC’s State Council, China explored and discovered many of the islands located in the South China Sea dating back to over 2,000 years ago. Since its founding in 1949, the PRC has slowly been reclaiming sovereign authority over islands originally lost to imperial Japan. Compared to contemporary international law, the PRC associates the status of seas as sovereign territory.
There is a conflict of interpretation regarding the role of sovereignty in maritime international law. The PRC’s idea of ‘historic claims’ justifies its right to commandeer territory for its maritime security—and a frontier for the Belt-and-Road Initiative’s Maritime Silk Road (海上丝绸之路). The legal rulings and conventions of the UN, ASEAN, and Arbitration Award, on the other hand, emphasise equal treatment of the region and enact legal agency over the various islands. Particularly when laws can support agreements over exploration and exploitation of resources in the region. These rulings and conventions attempt to simplify the complex relationship in Southeast Asia; by contrast, the PRC’s ‘historic claims’ gives legitimacy to history rather than the present globalised order.
The PRC’s Sinocentric outlook on international law has become increasingly prominent and a serious ripple effect in the region. Since the ratification of Beijing’s Law on the Territorial Sea and the Contiguous Zone—affirming claim to the entirety of the South China Sea—PLA naval vessels have clashed with several countries. Disputes in the Spratly and Paracel islands between the PRC, Malaysia, the Philippines, Brunei, Vietnam, and Taiwan; Scarborough (黄岩岛) and Second Thomas shoals with the Philippines; Laconia Shoals with Malaysia; Fiery Cross Reef with Vietnam; the Penghu and Zhoushan Islands with Taiwan; and the Senkaku/Diaoyu islands with Japan. Divisive security priorities and economic interests have made consensus difficult to achieve, whilst interpretations of international law and the scope of legal force complicate negotiations further.
The PRC continues to find innovative ways of challenging the UN’s definition of sovereignty. Visually, Chinese nautical charts use the ‘nine-dash line’ (九段线), or ‘U-shaped line’, to outline the boundaries of Beijing’s claim to the region. This was challenged by the Philippines in an international tribunal in The Hague, which ruled against the PRC’s demarcated ‘historical claims’. Despite the ruling’s status, the PRC believes the tribunal lacked jurisdiction, enabling it to continue pursuing its objectives through ‘salami-slicing’ and ‘grey-zone’ activities. The PRC actively builds artificial islands with the intention of asserting sovereign territorial rights. Long runways, harbours, and breakwater structures have emerged as a result of the PRC depositing extraordinary volumes of sand and sediment into the sea. Although UNCLOS does not recognise either of Beijing’s circumventing tactics, it does not prevent the PRC’s aim of establishing its sovereignty over the South China Sea.
By the end of this year, ASEAN and the PRC hope to conclude a new Code of Conduct as a means of maintaining peace in the region. However, the proposed agreement still upholds UNCLOS and preventing maritime confrontation, rather than resolving underlying jurisdictional differences. Regardless of legal rulings, the PRC continues to contest contemporary international law. Whilst humankind look up to Space, the PRC materialises its control over the seas.
