China’s strategy in the South China Sea aims to enforce its
invalidated claims, whereas recent legal actions by Southeast Asian
claimant states seek to clarify claims and incentivise dispute
settlement based on the United Nations Convention on the Law of the Sea
(UNCLOS). This photo taken on 23 April 2023 shows the Philippine coast
guard vessel BRP Malapascua (R) manoeuvering as a Chinese coast guard
ship cuts its path at Second Thomas Shoal in the Spratly Islands in the
disputed South China Sea.
INTRODUCTION
‘Lawfare’ is a popular term to generally describe different legal
strategies of states to defend and promote their maritime rights and
interests in the South China Sea (SCS). Dunlap originally defined
‘lawfare’ as “the strategy of using – or misusing – law as a substitute
for traditional military means to achieve an operational objective.”[1]
This definition notwithstanding, the literature has not produced a
consensus on what types of activities qualify as lawfare and whether
lawfare refers to a normatively negative, neutral or recommended
practice.[2] In analyses of the SCS disputes, many types of activities
have been labelled as ‘lawfare’, including China’s activities[3] and
legal arguments to assert its maritime claims, the Philippines’
initiation of arbitral proceedings against China, Malaysia and Vietnam’s
joint submission for an extended continental shelf, and US freedom of
navigation operations (FONOPs). Such a liberal use of the term obscures
the normative difference in the policies and practices of these
countries, so much so that some legal experts have lamented that
scholarship has “lost control of the concept of lawfare”,[4] and this
applies to the SCS. This Perspective examines how China’s
lawfare in the SCS is different from the legal actions undertaken by
other countries, especially Southeast Asian claimant states. It also
assesses the extent to which China’s lawfare has contributed to the
realisation of its objectives in the SCS.
CHINA’S LAWFARE IN THE SOUTH CHINA SEA
China’s excessive, yet ambiguous, claims in the SCS are illustrative
of China’s instrumental use of legal language. China has adjusted the
legal justification for its maritime claims even after the award of the
South China Sea arbitration of 12 July 2016 invalidated the claims to
maritime zones beyond the normal zones under UNCLOS. In a statement of
12 July 2016, China insisted on territorial claims to features,
including the Paracel, Spratly and Pratas Islands and the Macclesfield
Bank, and claims to a territorial sea, exclusive economic zone (EEZ),
continental shelf (CS) and historic rights inside the Nine-dash line.[5].
In Notes Verbales to the Secretary-General of the UN of 2020 and 2021,
China has then added a reference to “general international law” and
“outlying archipelagos”.[6] Its Note Verbale dated 16 August 2021 says
that “the regime of continental States’ outlying archipelagos is not
regulated by UNCLOS, and the rules of general international law should
continue to be applied in this field.” China now defends the alleged
existence of “rights established in the long course of history” with
reference to “general international law”. China’s argument relies on a
provision in the Preamble of UNCLOS which states that “matters not
regulated by this Convention continue to be governed by the rules and
principles of general international law”.[7] In its Notes Verbales dated
29 July 2020, 18 September 2020, 28 January 2021 and 16 August 2021,
China insists that “general international law” is the legal basis for
drawing “territorial sea baselines” around China’s claimed features,
including submerged reefs, in the SCS.[8] China’s reference to this
provision ostensibly invokes an alternative legal basis for its claims.
Yet, the matters regarding the extent of maritime rights and
baselines are comprehensively regulated by UNCLOS. Based on UNCLOS, the
2016 arbitral tribunal has clarified the types and the maximum extent of
maritime zones that China can claim.[9] The tribunal discussed in
detail the differences between an “island” that generates entitlement to
an EEZ and CS, and a “rock” that generates entitlement to only a
territorial sea.[10] UNCLOS also regulates the question of baselines,
i.e., the “normal baseline” is the “low-water line along the coast”
(Art. 5); “straight baselines” can be used where the “coastline is
deeply intended and cut into, or if there is a fringe of islands along
the coast in its immediate vicinity” (Art. 7 (1)); and only archipelagic
states “may draw straight archipelagic baselines” subject to further
provisions (Art. 47). China’s insistence on “territorial sea baselines”
around “islands and reefs” based on a “long established practice” and
“general international law”[11] is a slightly reframed version of
positions that the South China Sea arbitral tribunal has already
rejected. The arbitral tribunal did not accept the view that China can
enclose the Spratlys within archipelagic or straight baselines – neither
under UNCLOS nor under customary international law.[12] Several states,
including the Philippines, Indonesia, Malaysia, Vietnam, the US,
Australia, France, Germany, the United Kingdom, Japan, and New Zealand,
have therefore expressed their opposition to China’s insistence on
invalidated claims, and stated their support for various aspects of the
tribunal’s ruling.[13]
In China’s view, its Southeast Asian neighbours must make room for
China’s historically based claims to maritime zones even after the
arbitration ruling decided that these claims are inconsistent with
UNCLOS and customary law of the sea. Some scholars see this assertion as
an attempt to promote an alternative vision for the law of the sea.[14]
However, this vision has arguably remained a quest for enforcing
particularistic claims rather than promoting a comprehensive re-writing
of the law of the sea. After decades of disputes in the SCS, no
alternative Chinese vision for the law of the sea beyond its
particularistic claims has emerged. In China’s reference to “rights
formed in the long course of history”, there is no indication that China
believes that other states can claim historic rights too. China’s use
of legal language in defence of these claims does not engage in a quest
for a universally accepted interpretation of the rule of law at sea. The
scope of these particularistic claims, though, is such that they would
upend fundamental balances underlying UNCLOS, especially the fact that
no state is allowed to claim maritime rights beyond the normal limits or
the balance between exclusive rights of coastal states and navigational
rights of user states. Even though Chinese sources and documents
repeatedly affirm China’s compliance with UNCLOS,[15] China’s claims are
so excessive that they would multiply the normal entitlements provided
for under UNCLOS.
What makes China’s lawfare activities distinctive from those of other states in the legal domain of the SCS?
First, the instrumental use of law is not peculiar to China’s
activities. US FONOPs in the SCS have been called ‘lawfare’ based on the
argument that these operations merely “instrumentalise law for
furthering parochial political interests, including military
objectives”.[16] According to this argument, FONOPs “ostensibly [serve]
to further the rule of law over the rule of force” while in reality
serving political and strategic interests. Granted, the idea of
instrumentalising law is regularly evoked as a characteristic element of
lawfare.[17] However, this view, which considers a certain practice as
lawfare merely because it uses law as an instrument, sets the threshold
for lawfare too low. An instrumental use of law – such as US FONOPs,
which are allowed under UNCLOS (Art. 87 and Art. 90) – is neither
inconsistent per se with an interest of acting within a legal order nor
is it necessarily reproachable.
The Philippines’ decision to launch arbitral proceedings against
China – supposedly an instance of the Philippine lawfare strategy – is
another case in point. This type of lawfare reflects “the recognition…of
the (actual or potential) utility of international law in shaping,
constraining, and altering the behaviour of states”.[18] According to
this argument, the Philippines’ initiation of arbitration deserves the
label ‘lawfare’ because it served the Philippines strategically as the
option of last resort. Yet, the Philippines’ recourse to arbitration
under Annex VII of UNCLOS is entirely permissible and a right provided
for under UNCLOS. According to the UN General Assembly’s Manila
Declaration, “[r]ecourse to judicial settlement of legal disputes,
particularly referral to the International Court of Justice, should not
be considered an unfriendly act between States.”[19] It is therefore
questionable whether the term ‘lawfare’ should be used for legitimate
legal actions such as arbitral proceedings. The joint
submission of Malaysia and Vietnam for an extended continental shelf to
the Commission for the Limits of the Continental Shelf (CLCS) has also
been characterised as lawfare.[20] The joint submission, however, is a
normatively recommended practice which is within the exercise of the
rights and obligations of coastal states under Art. 76(8) of UNCLOS. It
is part of the legal processes that can indeed incentivise the
settlement of disputes, since these legal processes are used to
communicate claims, to clarify their legal basis, and to establish law
as a framework for negotiations and interactions.[21]
China’s activities in the legal domain starkly contrast with those of
the Philippines or Malaysia and Vietnam both factually and normatively.
The former is a type of lawfare that obscures claims and insists on
invalidated claims whereas the latter tries to clarify claims and
incentivise dispute settlement based on UNCLOS provisions.
WHAT HAS CHINA’S LAWFARE ACHIEVED IN THE SOUTH CHINA SEA?
A key objective of China’s lawfare in the SCS is to provide a
rhetorical cover for its changes of the factual status quo.[22] However,
the fact that China has effectively changed the status quo, for
instance by building outposts on islands or increasing the frequency and
reach of coast guard patrols, does not mean that China has succeeded in
creating the presumption that the enforcement of its invalidated claims
is anywhere near legal. This is especially the case where such changes
of status quo contradict the 2016 arbitration ruling.
Assuming that China’s lawfare combines deliberate ambiguity
surrounding its excessive claims and the enforcement of particularistic
claims in the SCS,[23] it is still not clear what China’s lawfare has
achieved in the legal domain in the last decade. It is often pointed out
that the ambiguity of China’s claims, including its historic rights, is
a deliberate policy choice that offers Beijing a degree of flexibility
and room for manoeuvre.[24] Ambiguity about legal claims, the nature of
disputes and the actors involved in disputes are certainly
characteristic elements of grey zone challenges.[25] In this regard,
ambiguity has been part of the attempt to maintain doubt about the
excessiveness of China’s claim. This doubt, in turn, has served as a
rhetorical cover for unilateral advancements of claims. While the exact
scope and purpose of the ambiguity in China’s maritime claims may be
debatable,[26] the arbitration ruling has put an end to the ambiguity
about claims.[27] The ruling confirmed the Philippines’ point of view
that China can only claim the normal entitlements under UNCLOS, which
all other countries can also do.[28] The ruling established the types
and the maximum extent of maritime zones that China can claim.[29] It
thereby clarified that (i) if “historic rights” had existed, these “were
superseded… by the limits of the maritime zones provided for by the
Convention”;[30] (ii) no feature in the Spratly Islands or Scarborough
Shoal can generate a claim to an EEZ or CS; and (iii) neither UNCLOS nor
customary international law permits China to draw straight or
archipelagic baselines around the Spratly Islands.[31] In other words,
whatever the impression of plausibility regarding China’s maritime
claims beyond the normal claims that may have resulted from China’s
lawfare in the past, the arbitration ruling has put it to rest.
Importantly, this point is reflected in the growing international
support for the arbitration ruling. Pre-ruling, 31 states objected to
the arbitral tribunal’s jurisdiction or otherwise considered it to be
illegitimate.[32] Yet, only six states have expressed opposition since
the tribunal issued its award in 2016.[33] Crucially, there is a growing
number of states officially backing substantive elements of the award
in their respective Notes Verbales to the UN or in their public
statements. These include the Philippines, Vietnam, Indonesia, the US,
Australia, Malaysia, France, Germany, the UK, Japan, New Zealand and
India.[34] As of today, only China objected to the tribunal’s
jurisdiction and award in its Notes Verbales to the UN.[35]
These reactions from states around the world demonstrate that there
is no general, established practice accepted as law that would allow
China to claim historic rights and draw straight baselines around
different groups of features in the SCS as its lawfare has tried to
argue. On this issue of the law of the sea where China’s claims are in
dispute with its neighbours and other maritime nations, China is no
closer to promoting an alternative vision for the law of the sea than a
decade ago. Not even the states that China mentions as objecting to the
arbitration ruling argue that states can generally claim historic rights
under international law. Moreover, while China and several other states
defend a restrictive view on the scope of navigational freedoms of
warships and innocent passage, there is no sign of coalition-building
among these states.
The analysis does not imply, though, that China has not made lasting
achievements in asserting its presence and control in the SCS. Land
reclamation and the building of outposts have allowed China to increase
the frequency and geographic reach of its naval and coast guard patrols
in distant parts of the SCS. But this improvement in de facto
reach of state power cannot be attributed to any conception of lawfare.
Quite the opposite. The progress China has made on the ground is
commensurate with the gap between China’s leadership aspirations and the
distrust Southeast Asian elites have towards China. In the 2023 State of Southeast Asia Survey
by the ISEAS – Yusof Ishak Institute, regional trust in China to
maintain rules-based order and uphold international law was very low, at
5.3%, well behind the US (27.1%), the EU (23%), ASEAN (21%) and Japan
(8.6%).[36]
That said, the response of members of the Association of Southeast
Asian Nations (ASEAN) to China’s behaviour in the SCS remains
ineffective. ASEAN-related fora are “strategically incompatible” to cope
with the disputes.[37] Even Southeast Asian claimant states remain a
fragmented mix. They do not share a strong consensus on precise and
meaningful provisions for a code of conduct.[38] They lack a cohesive
position on how envisioned regional ocean governance should be in line
with the arbitration ruling. However, even where Southeast Asian
responses to China’s activities remain underperforming, this cannot be
attributed to China’s lawfare but to existing differences and disputes
among Southeast Asian states as well as their cognition of the vast
power asymmetry with China.
Despite years of lawfare in the SCS, China has not made gains in the
legal domain. Traditional legal approaches to clarify the law,
especially arbitration, have pulled away any legal cover that China’s
lawfare in the SCS may have provided. What is left of China’s lawfare is
the attempt to push through particularistic claims in contravention of
the law of the sea as the arbitral tribunal and many states in the
international community conceive it.
CONCLUSION
As the law of the sea is relatively well codified, at least in
comparison to other international legal regimes, strategic interactions
in the SCS take place “in the shadow” of the law of the sea. Analyses of
the SCS disputes often use the term ‘lawfare’ to capture state choices
surrounding the formulation of claims, the use of legal processes or
naval operations that are subject to both legal and strategic
considerations. Being used as a catch-all phrase for interactions
between law and strategy in the SCS, this term obscures rather than
reveals how the use of certain legal activities and processes is
motivated by strategic considerations or how it can further them.
While China’s activities in the legal domain can be dubbed a lawfare
strategy, China has not achieved much in the legal domain. To the
contrary, traditional legal processes such as arbitration have resulted
in a clarification of the applicable law, which pulled away any legal
cover for changes of the status quo that lawfare may have provided. This
is a lasting achievement of the South China Sea arbitration ruling. A
good way to counter lawfare is the use of traditional legal processes.
The fact that the ruling has witnessed increasing international support
in the last few years lends credence to the idea that China’s lawfare in
the SCS has been ineffective. Southeast Asian claimant states should
build upon the momentum of the ruling by negotiating instruments of
ocean governance in the SCS, i.e., fisheries management, marine
protected areas and improved maritime law enforcement cooperation, that
are consistent with and build upon the ruling. Consolidating the ruling
in this way is certainly one avenue for countering China’s activities in
the SCS.
