In addition to these regional conflicts, China is in dispute with the U.S. over the interpretation of freedom of navigation and the right to regulate foreign military activities in the SCS. The position of the U.S. and of most countries is that while the United Nations Convention on the Law of the Sea (UNCLOS) has established EEZs as a feature of international law and provides littoral states the right to regulate economic activities (such as fishing and oil exploration within their EEZs), it does not give states the right to regulate foreign military operations beyond their 12-nautical-mile territorial waters. However, China insists that it has the right to regulate both economic and foreign military operations within its claimed territories. According to maritime experts, these differing interpretations are at the heart of incidents between Chinese and U.S. ships and aircraft in international waters and airspace dating back at least to 2001.[6]

The centerpiece of Chinese lawfare strategy revolves around China’s efforts to undermine international law and norms in the SCS, as follows: 1) intent to redo the UNCLOS; 2) carefully-crafted strategic messaging; 3) redefinition of freedom of navigation, land reclamation and artificial island-building; 4) insistence on a bilateral approach to settle disputes with claimant countries; and, 5) non-compliance with international tribunal decisions.

• China’s intent to redo the UNCLOS. China believes that its domestic law supersedes international law. Its Supreme People’s Court has ruled that China has jurisdiction to all areas under its “sovereign control,” including “jurisdictional seas” that include inland waters, the territorial sea, its contiguous zones, its EEZ, and continental shelf as well as other sea areas that China claims. In April 2019, Chinese civilian and military officials had expressed their intention to “redo” the UNCLOS to make it conform to Chinese domestic law.[7] They believed that since Chinese law prohibits foreign military operations to take place within China’s EEZ, any foreign military operation within China’s EEZ should be viewed as a violation of Chinese law. But they have also argued that since foreign states, such as the U.S., have no domestic law prohibiting foreign military operations within their EEZ, China, therefore, can conduct military operations within another state’s EEZ.[8]

In January 2021, the National People’s Congress Standing Committee of China passed a law that empowers the China Coast Guard (CCG) to use ‘all necessary means’ to deter foreign vessels in waters under Chinese jurisdiction. The law also enables the CCG to demolish structures built or installed by foreign countries within Chinese-claimed waters and allows the use of weapons against foreign vessels. However, maritime experts cite the CCG law as being inconsistent with UNCLOS Articles 32, 95, and 96, which stipulate that warships and government ships are completely immune from the jurisdiction of any country other than the flag state.[9]

In September 2021, China issued a new legal requirement demanding that foreign vessels entering and exiting through ‘Chinese waters’ must report to Chinese maritime administration and would be required to provide information regarding the ship and cargo.[10]

• • China conducts carefully-crafted psychological warfare that shapes the legal narrative on maritime conduct. China seeks to change the narrative on maritime sovereignty through carefully-crafted information messaging campaigns directed to claimant countries and the U.S., asserting that China’s activities in Southeast Asia are collaborative, cooperative, and well-intentioned while emphasizing that Beijing has only positive intentions towards managing the disputes in the SCS.[11]China also asserts that its maritime sovereignty in the SCS is “beyond reproach,” has accused claimant countries as troublemakers, and has portrayed the U.S. as a Western imperialist meddling in Asian affairs.
  • China seeks to redefine freedom of navigation. Freedom of navigation in EEZs grants a state special rights to explore and use marine resources found in the area from the baseline out to 200 nm from a state’s coast. China claims it supports freedom of navigation but has violated other claimant countries’ soverereign rights in their EEZs. For example, China has interfered with Philippine fishing and hydrocarbon exploration and with commercial fishing operations conducted by non-Chinese fishing vessels from littoral states in the region. Chinese “militia” fishing fleets are being deployed to establish control of and safeguard Chinese fishing interests in disputed areas. China further narrowly defines freedom of navigation to mean allowing commercial cargo ships to pass through international waters but excludes military ships and aircrafts to conduct operations on international waters.[12] Chinese officials cite Beijing’s 1992 ‘Law of the People’s Republic of China (PRC) on The Territorial Seas and Contiguous Zones’ in not granting passage to foreign ships with military purposes to pass through China’s waters, arguing that China’s territorial sea is 12 nm measured by straight baselines and the breadth of the territorial sea as also applicable to Chinese offshore islands including the islands in the SCS.[13]
  • China engages in land reclamation and artificial island-building in order to establish sovereignty over disputed territories. China’s reclamation and artificial island-building activities in the Spratlys would enable Beijing to establish control over areas of the SCS beyond what is allowed by international law.[14] China argues that its artificial islands should be treated as coastlines, thereby enabling Beijing to claim exclusive rights to the resources within the islands’ immediate vicinity and establish control over the waterways surrounding it.[15] While UNCLOS gives coastal states the right to construct and regulate artificial islands, these islands should be constructed within a coastal state’s EEZ over which it can also exercise the right to establish a 500-meter radius where it can exert exclusive sovereign control.[16] To date, China has built 20 outposts in the Paracel Islands and seven in the Spratlys and has continued its militarization by deploying anti-ship and anti-aircraft missile systems to its Spratly Islands outposts.[17] According to an Australian Strategic Policy Institute expert, through these artificial islands, China has effectively pushed out its defensive perimeter and can now build surveillance platforms, forward operating bases for reconnaissance and strike aircraft and house offensive and defensive missile systems.[18]
  • China pursues bilateralism in resolving maritime disputes. In efforts to influence the conduct of littoral states towards SCS disputes, China insists on managing and resolving these disputes on a bilateral basis, to the exclusion of foreign powers, such as the U.S., which is portrayed as an interfering foreign power. In the past, China entered into agreements related to fisheries rights and joint fisheries management with Japan, Vietnam and South Korea under a framework provided by UNCLOS. However, China’s bilateral approach towards SCS dispute resolution does not have a similar international framework. China’s insistence for bilateralism may weaken international law because it allows China to set rules that limit the ability of littoral states to contest Beijing’s actions, such as a littoral state’s right to file protests through official diplomatic channels.
  • China does not comply with international tribunal decisions. In July 2016, the Permanent Court of Arbitration in The Hague ruled in favor of the Philippines in its case against China’s historic rights claims based on the nine-dash line map. The ruling indicates that none of the features claimed by China is entitled to a maritime zone of more than 12 nautical miles. However, China refused to give its consent and warned that it would not comply with the decisions of the tribunal In a PRC Ministry of Foreign Affairs announcement, Chinese officials publicized its legal and policy position: no acceptance, no participation, no recognition, and no implementation.[19] It also insisted that the arbitral tribunal has no jurisdiction over China in relation to Beijing’s maritime claims, but Philippine officials believe that China will continue to seek to legitimize its unlawful claims through a strategy of protracted lawfare.

Assessing countermeasures and enforcement capabilities

Global and regional powers have agreed that international law should provide the framework upon which states assert their rights in the maritime domain and serve as the sole basis for arbitration in the settlement of maritime conflicts. However, China’s manipulation of international law raises questions about the effectiveness and enforceability of this framework.

• International court decisions and lack of enforcement mechanism. The International Tribunal for the Law of the Sea (ITLOS) has limited power of enforceability even though its decisions are final and binding. This is because its jurisdiction is subject to certain restrictions vis-à-vis the exercise of discretionary powers by coastal states.[20] ITLOS doesn’t have a police force and has no ability to levy fines. It also lacks legal power to resolve explosive conflicts over sovereignty issues related to land features and maritime boundaries. China’s refusal to abide by the 2016 Philippine-China arbitration is premised on Beijing’s argument that it did not consent to the jurisdiction of the tribunal. However, since China is a party to the UNCLOS, it cannot claim that the Tribunal’s decisions are not binding as it has already consented to its arbitration when it ratified the UNCLOS. Non-compliance by one party is tantamount to a violation of the rights of the other party. Yet, China refuses to comply with the requirements of international law.
• Effectiveness of of a code of conduct (CoC). China and ASEAN countries are currently in negotiation for a code of conduct in order to establish a rules-based framework in managing maritime disputes. A CoC would provide guidance in maintaining peace, stability, security and freedom of navigation in the SCS. However, during a meeting between Malaysian officials and a Chinese delegation to the Joint Working Group meeting on SCS issues in September 2019, a Chinese official insisted that the CoC was not an instrument that could be used to settle maritime disputes and refused to agree to making the code legally binding.[21] Various Malaysian agencies have questioned whether China was simply buying time so that it could strengthen its occupied areas and continue its militarization activities in the SCS. Philippine officials have also insisted that a code of conduct should be legally binding and that the Hague ruling should be made an integral part of a binding code of conduct.[22] There is a consensus among ASEAN members that the CoC should not negotiate any claim that is not legal under international law.[23] The US is also increasingly concerned that China is seeking a CoC that sets an exclusive set of rules for the SCS limiting the choices of ASEAN states, excluding other partners, and weakening international law.[24] To date, a CoC has yet to be finalized and approved by China and ASEAN states.
• Lack of ASEAN unity. Because of competing interests and fear of Chinese retaliation, ASEAN member-countries are divided over their position towards the SCS dispute with China. China is viewed as the region’s largest trading partner and government officials and heads of state in Southeast Asia are afraid of negative repercussions should they adopt a more vocal posture against China’s activities in the SCS. China will continue to extend its influence among some ASEAN members especially in shaping a CoC in its favor, although most ASEAN members will likely welcome support from US and regional allies privately while appearing hesitant to criticize Beijing publicly.
• US response. As of July 2020, the U.S. State Department adopted a new policy towards the South China Sea, declaring that “Beijing’s claims to offshore resources across most of the SCS are completely unlawful, as is its campaign of bullying to control them.”[25] At the same time, the U.S. supports the principle that disputes between countries should be resolved peacefully, without coercion, intimidation, threats, or the use of force, and in a manner consistent with international law. Similarly, all states in the region and the US have called for calm and self-restraint, with the exception of Japan, which has explicitly reminded China that Beijing should comply with arbitration decisions.[26]

Implications for the U.S.

While the U.S. is not a signatory to the UNCLOS,[27][28] it accepts certain provisions of the treaty — such as those relating to navigation and overflight — which the U.S. deems consistent with customary international law to which it subscribes, and acts accordingly.[29] According to U.S. military officials, articles 58[30] and 87[31] of the 1982 UNCLOS provide guarantees to all nations of the right to exercise freedoms of navigation and overflight and guarantee traditional uses of the ocean related to those freedoms.[32] It is also the U.S. view that, under international law, U.S. military surveillance flights conducted in international airspace are lawful, unless they involve hostilities against another state. The U.S. has been conducting freedom of navigation operations since 1979. According to U.S. military officials, they plan to continue to conduct these operations directed not only at China but at other countries since 40% of the world’s ocean lie within the 200 nm EEZs and preserving these freedoms within EEZs are essential to the global economy and to international peace and security while guaranteeing freedom of movement of the U.S. military to defend various U.S. interests overseas.[33]

U.S. involvement in the SCS dispute also arises from its treaty obligations with partners in the Pacific, such as the Philippines and Japan. Based on the 1951 US-Philippine Mutual Defense Treaty, US officials have reaffirmed that since the SCS is part of the Pacific, any armed attack on Philippine forces, aircraft, or public vessels in the SCS would trigger mutual defense obligations under Article 4 of the Treaty.[34] The US has also reaffirmed its treaty commitments with Japan over its Senkaku Islands dispute with China under Article 5 of the treaty in which the U.S. is obligated to act in response to an armed attack against Japan.[35]

Conclusion

At the center of China’s lawfare strategy in the SCS is Beijing’s efforts to undermine the legal order governing maritime conduct as it rejects the legitimate concerns of its neighboring littoral states and the US. China’s ability to manipulate international law enables Beijing to neutralize dissent from claimant states and temper international responses from global powers with maritime and security equities in the high seas.

Claimant countries and the US have argued for the importance of a rules-based approach towards resolving maritime disputes that levels the playing field. Without rules-based boundaries, nations can do what they want to do against other nations, and, in the case of China on the SCS dispute, simply claims sovereignty over contested territories by assertion. To have teeth, however, international law must be accompanied by effective enforcement mechanisms, backed by maritime coalitions of regional allies and the U.S., and protected by freedom of navigation operations in the SCS.

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Priscilla Tacujan is currently working as an analyst at the U.S. Department of Defense (DoD). She holds a Ph.D. in political philosophy and comparative politics from Claremont Graduate School. The views expressed in this article are her own and do not reflect the position of the DoD.

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[1] Lawfare is defined as “the use of law as a means of accomplishing what might otherwise require the application of traditional military force. It is something of an example of what Chinese strategist Sun Tzu might say is the ‘supreme excellence’ of war, which aims to subdue ‘the enemy’s resistance without fighting’” (MG Charles Dunlap, “Lawfare 101: A Primer,” Military Review, May-June 2017).

[6] State Department, Office of Ocean and Polar Affairs Bureau of Oceans and International Environmental and Scientific Affairs, No. 143, “Limits in the Seas,” 05 December 2014 [ URL: http://www.state.gov/documents/organization/234936.pdf]

[7] Sarah Lohschelder, “Chinese Domestic law in the South China Sea,” New Perspectives in Foreign Policy, CSIS, Issue 13 (Summer 2017) [URL: http://csis.org/npfp/Chinese-domestic-law-south-china-sea].

[8] Ibid.

[9] The Diplomat, “China’s Coast Guard Law Challenges Rule-Based Order,” 28 April 2021 [URL: www.thediplomat.com/2021/04/chinas-coast-guard-law-challenges-rule-based-order].

[10] Andrew Salmon and Jeff Pao, “China flexes sea power with new foreign ship law,” Asia Times, September 1, 2021 [URL: www.asiatimes.com/2021/09/china-flexes-sea-power-with-new-foreign-ship-law/].

[11] Huong Le Thu, “Australia: Southeast Asian narratives about US–China competition (part 2): You’ve got to be in it to win it,” Australian Strategic Policy Institute, The Strategist, 18 November 18, 2019 [URL: www.aspistrategist.org.au/southeast-asian-narratives-about-us-china-competition-part-2-you’ve-got-to-be-in-it-to-win-it].

[12] Congressional Research Service, “U.S.-China Strategic Competition in South and East China Seas: Background and Issues for Congress,” September 24, 2019 [URL: https://fas.org/sgp/crs/row/R42784.pdf].

[13] State Department, Bureau of Oceans and International Environmental and Scientific Affairs, “Limits in the Seas: China, Maritime Claims in the South China Sea,” No. 143, December 5, 2014 [URL: http://www.state.gov/wp-content/uploads/2019/10/LIS-143.pdf].

[14] CSIS Maritime Transparency Initiative, “China Island Tracker” [URL: https://amti-csis.org/island-tracker/china/].

[15] Seth Cropsey and Bryan McGrath, “Maritime Strategy in a New Era of Great Power Competition,” Hudson Institute, January 2018 [URL: https://s3.amazonaws.com/media/hudson.org/files/publications/HudsonMaritimeStrategy.pdf].

[16] Adam Kohl, “China’s Artificial Island Building Campaign in the South China Sea: Implications for the Reform of the United Nations Convention on the Law of the Sea,” Dickinson Law Review, vol. 122, issue 3 (Spring 2018) [URL:https://ideas.dickinsonlaw.psu.edu/cgi/viewcontent.cgi?article=1046&context=dir].

[17] CSIS Maritime Transparency Initiative, “China Island Tracker” [URL: https://amti-csis.org/island-tracker/china/].

[18] The National Interest, “What China Wants in the South China Sea,” November 26, 2019 [URL: https://nationalinterest.org/blog/buzz/what-china-wants-south-china-sea-100167].

[19] Isaac Kardon, “China Can Say ‘No’: Analyzing China’s Rejection of the South China Sea Arbitration,” Penn Law: Legal Scholarship Repository, (2018), [URL: http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article+1037&context=air].

[20] Penn State International Law Review, “The Contribution of the International Tribunal for the Law of the Sea to International Law,” vol. 26, no. 2, 9-1-2007 [URL: https://elibrary.law.psu.edu/cgi/viewcontent.cgi?article=1778&context=psilr].

[21] South China Morning Post, “China, Malaysia seek to resolve South China Sea disputes with new dialogue mechanism, 13 September 2019 [ URL: www.scmp.com/news/china/diplomacy/article/3026957/china-malaysia-seek-resolve-south-china-sea-disputes-new].

[22] “Philippines: Invoke arbitral ruling in code of conduct talks, ASEAN urged,” Inquirer.net, 28 October 28, 2019 [URL: www.globalnation.inquirer.net/181618/invoke-arbitral-ruling-in-code-of-conduct-talks-asean-urged].

[23] East Asia Forum, “Towards a rigorous Code of Conduct for the South China Sea,” 30 July 2021 [URL: www.eastasiaforum.org/2021/07/30/towards-a-rigorous-code-of-conduct-for-the-south-china-sea].

[24]   State Department, “Chairman’s Statement of the 7th ASEAN-United States Summit,” 04 November 2019 [URL: www.asean.usmission.gov/chairmans-statement-of-the-7th-asean-united-states-summit].

25] State Department, “U.S. Position on Maritime Claims in the South China Sea,” July 13, 2020 [URL: www.2017-2021.state.gov/u-s-position-on-maritime-claims-in-the-south-china-sea/index.html].

[26] Richard Javad Heydarian, “The day after: Enforcing The Hague verdict in the South China Sea,” Brookings Institute, July 25, 2016 [URL: https://www.brookings.edu/opinions/the-day-after-enforcing-the-hague-verdict-in-the-south-china-sea/].

[27] The U.S. has always subscribed to the principle of the freedom of the seas and freedom of operations in international waters as “the rights, freedoms, and uses of the sea and airspace, including for military ships and aircraft, guaranteed to all nations by international law.” The principle of the freedom of the sea has been in effect since the early 1600s when seas were used for the conduct of commerce and war and has evolved into customary international law.

[28] One of the reasons why the U.S. is not a signatory to the UNCLOS is its Article 82, which would require the U.S. to transfer royalties generated from hydrocarbon production of the U.S. extended continental shelf (ECS) to the International Seabed Authority for redistribution to developing and landlocked countries.

[29] Heritage Foundation, “The Law of the Sea: Costs of U.S. Accession to UNCLOS, Hearing before the US Senate Committee on Foreign Relations,” June 14, 2012 [URL:  https://www.heritage.org/testimony/the-law-the-sea-costs-us-accession-unclos.

[30] UNCLOS, Article 58 states that in the EEZ, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in Article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.

[31] UNCLOS, Article 87 states that the high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: a) freedom of navigation; b) freedom of overflight; c) freedom to lay submarine cables and pipelines, subject to Part VI; d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI, e) freedom of fishing, subject to the conditions laid down in section 2; f) freedom of scientific research, subject to Parts VI and XIII.

[32] Congressional Research Service, “U.S.-China Strategic Competition in South and East China Seas: Background and Issues for Congress,” November 26, 2019 [URL: https://fas.org/sgp/crs/row/R42784.pdf].

[33] Ibid.

[34] State Department, “Remarks with Philippine Foreign Secretary Teodoro Locsin, Jr., Remarks by Michael R. Pompeo, Secretary of State,” March 1, 2019 [URL: https://state.gov/remarks-with-philippine-foreign-secretary-teodoro-locsin-jr/].

[35] Congressional Research Service, “The Senkakus (Diaoyu/Diaoyutai) Dispute: U.S. Treaty Obligations,” October 14, 2016 [URL: https://fas.org/sgp/crs/row/R42761.pdf].