Chinese lawfare, resource disputes and the law of the sea

Asia World

Author: Douglas Guilfoyle, UNSW Canberra

China notoriously claims special maritime rights in the South China Sea within the ‘nine-dash line’ that appears on official Chinese maps. The precise origin of the line remains obscured. The ‘nine-dash line’ did not appear on government maps prior to 1947 or in private cartographic exercises before 1933. As late as 2013, prominent Chinese scholars accepted that China had never expressly articulated the line’s legal significance.

Fishing boats leave a port to resume fishing after three month fishing ban in Fangchenggang city, south China's Guangxi Zhuang Autonomous Region, 16 August 2019 (Photo: Reuters).

Fishing boats leave a port to resume fishing after three month fishing ban in Fangchenggang city, south China's Guangxi Zhuang Autonomous Region, 16 August 2019 (Photo: Reuters).

Recent Chinese claims to exclusive jurisdiction over resources within it have escalated tensions not only over oil but also over exploited and declining fish stocks ‘fundamental to the food security of coastal populations numbering in the hundreds of millions’. But China’s legal argument about the South China Sea should be seen both in its historical context and in light of China’s doctrine on information warfare.

Law plays an important role in the dispute over the nine-dash line because the line cuts deep into what various coastal states including Vietnam and the Philippines regard as their 200 nautical mile Exclusive Economic Zone (EEZ) under the UN Convention on the Law of the Sea (UNCLOS). Ironically, in the marathon negotiations that lead to UNCLOS, China was a principal advocate of the EEZ concept, aligning itself with developing countries against Russia and the United States.

It is useful to review the issues that were of fundamental concern to China in the UNCLOS negotiations. These are documented in Chinese working papers submitted to the UN Seabed Committee in the early 1970s and in speeches China made during the negotiation process.

China advocated for five main positions. First, that there was no fixed maximum width to the territorial sea — the extent of a state’s maritime domain was a sovereign decision to be informed by economic and security needs. Second, warships had no automatic right of innocent passage through territorial seas and straits. Third, China’s own Chiungchow Strait and vast Bohai Bay had a special status as ‘internal waters’. Fourth, that maritime boundaries should be settled only by consultation and UNCLOS should make no provision for the judicial settlement of such disputes. Fifth, a continental state with sovereignty over an outlying archipelago could draw straight baselines around it and use these to measure a territorial sea.

Notably, though China expressly claimed a special status for some waters it never did so for the South China Sea. China maintained its Chiungchow Strait and Bohai Bay claims throughout negotiations, along with its position on warships and innocent passage. But Beijing abandoned its position on the width of the territorial sea and on ‘outlying archipelagos’. This history shows that China’s recent supposed enjoyment of ‘special historic rights’ within the nine-dash line is the product of a very new legal claim.

A major blow to the Chinese position in favour of coastal states enjoying their ‘ordinary’ EEZs came in the Philippines v China arbitration. Since then, the Chinese government has pivoted back to a version of the ‘outlying archipelago’ argument previously abandoned during UNCLOS negotiations, an argument revived in the Chinese Society of International Law’s ‘critical study’ of the Philippines v China arbitral award. China now claims it can bundle up various maritime features into ‘archipelagos’, enclose them in straight baselines and project EEZs from them.

The argument is both historically revisionist and legally unconvincing. However, in addition to the creation of EEZ claims, re-characterising certain features as islands or archipelagos allows China to claim US warships are constrained in navigating near such features. The United States maintains that such features are not capable of generating territorial seas and that it is exercising freedom of navigation applicable in an EEZ or on the high seas. But why is China bothering to make such arguments at all?

The Chinese Communist Party (CCP) appreciates the power of law. Its ‘three warfares’ doctrine outlines a triad of non-kinetic methods for achieving China’s national goals: public opinion warfare, psychological warfare and legal warfare. Among these, the function of legal warfare (‘lawfare’) is explained by Livermore as ‘leveraging of existing legal regimes and processes to constrain adversary behaviour, contest disadvantageous circumstances, confuse legal precedent, and maximise advantage in situations related to the PRC’s core interests’.

The function of the three warfares is to strengthen both the internal and external legitimacy of the CCP. Contesting China’s claims in the South China Sea is seen in itself as attempting to undermine the CCP’s legitimacy. The CCP sees itself as beset by internal and external threats, perceiving legal argument mounted against itself as a form of strategic conflict.

Hopes that China would be drawn closer to the legal positions of traditional naval powers as a rising maritime power have not come to pass. International law and international relations scholars should appreciate that China’s legal arguments in the maritime domain, while opportunistic, are not without historical roots in Chinese legal thinking. China also understands that to enjoy and exploit what is gained by force requires consolidation through law. Disputing maritime claims is a legal struggle carried out in the realm of ideas. Chinese lawfare is not simply window dressing for a maritime ‘land-grab’. It is part of the land-grab itself.

Douglas Guilfoyle is Associate Professor of International and Security Law at the University of New South Wales (UNSW), Canberra, where he convenes the Maritime Security Research Group.

This article is drawn from Douglas Guilfoyle,The rule of law and maritime security: understanding lawfare in the South China Sea‘, recently published in International Affairs.

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