ANALYSIS

maritime
awareness
project

The Role and Use of International Law

in the South China Sea Disputes
Justin D. Nankivell April 14, 2016

While the role of international law, including the A critical endeavor for researchers and policymakers
law of the sea, is integral to understanding how the is evaluating how international law works or matters
events in the South China Sea unfold, there are two in the South China Sea disputes—that is, how the
dominant strands of thought that capture current law functions within the spectrum of foreign policy
thinking but limit our understanding of how the law decisions made by key actors. This objective is
functions within and between the states in the area. important if we wish to comprehend and map the
These two legal narratives intersect between the poles myriad areas in which the law affects state conduct,
of justice, power, and order in maritime affairs, and diplomatic activity, and strategic calculations. The
significantly hinder analytical assessment of how the study of the complex relationship between law, policy,
law works in the maritime domain and may be used and strategy in the global domain of maritime affairs
as a diplomatic tool to solve regional tensions. The remains underdeveloped, and the South China Sea
first strand views law as an important component disputes present a critical laboratory in which these
in defining the territorial and maritime stakes variables can be studied within the context of the
contested by the claimants. The second frames law current maritime order. After touching briefly on
as the foundation of justice in a modern rules-based U.S. interaction with the law, this piece will focus
system, an institutional form constructed out of the on China’s approach in the disputes. I will turn my
post-World War II order that is coming under extreme attention to the ASEAN positions in posts to follow,
tension in the emerging great-power struggle between
the United States and China. From both of these
perspectives, the law is used as an evaluative baseline
to judge the conduct of states in terms of formal legality JUSTIN D. NANKIVELL is the Associate Dean for
or normative legitimacy. While these legal frameworks Academics at the Daniel K. Inouye Asia-Pacific Center for
are undoubtedly important for explanatory and ethical Security Studies. The views expressed in this article are
those of the author and do not necessarily reflect the official
purposes, analysis of the South China Sea disputes
policy or position of the Daniel K. Inouye Asia-Pacific
must take into consideration alternative roles for law Center for Security Studies, the Department of Defense, or
in shaping and restricting states’ conduct. the U.S. Government.
 Maritime Awareness Project Analysis • April 14, 2016

in addition to expounding with greater specificity on The far more difficult case to make is that the law
the relationship of law, justice, and state practice for of the sea has a tangible impact on China’s strategic
the parties involved. behavior. Because China exhibits such a range of
Understanding the law of the sea’s role in the invalid legal interpretations—from the misuse of
South China Sea disputes requires situating the law baseline law to the possible scope of the nine-dash
historically in its foundational debate. For over four line—and has refused to appear before the arbitration
hundred years, the law of the sea has been pulled panel constituted under UNCLOS to hear the
between two legal doctrines that are underpinned Philippines complaints against China, while publicly
by strategic implications: “open seas” versus “closed castigating the judges and proceedings, it would be
seas.” Since the time of Hugo Grotius and John Selden, easy to conclude that law has little impact on China’s
the European initiative underpinning maritime law behavior. Given that Beijing has stated expressly that
has oscillated between casting the sea as an entity it will not comply (the paramount test of international
that could be owned (the subject of sovereignty) and law) with the tribunal’s forthcoming award on merits,
viewing it as a liquid form (affording freedoms but many conclude that China will continue to use law
not ownership rights). The lengthy process by which instrumentally as a form of modern warfare, or
states constructed the United Nations Convention “lawfare,” through which the core elements of the
on the Law of the Sea (UNCLOS) did not eradicate maritime legal regime are delegitimized.
this tension; to the contrary, many states at UNCLOS That said, we cannot know how China will act until
sought expressly to “bury Grotius” and the unrestricted the arbitrators outline the obligations with which
right of navigational freedoms during the protracted it must comply based upon what the law requires.
negotiations. The South China Sea disputes represent Following the verdict, it is possible that China may
but another round in this prolonged debate over the be given an opportunity to prove its historic case and
constitutional use of the oceans for closed and open begin the process of maritime delimitation. Chinese
seas purposes. compliance should not therefore be seen as black or
Situated within this history, in what ways does white, possible or not, until a verdict is pronounced and
law matter in shaping foreign policy? Predictably, the the impacted states are given time to act in accordance
key actors display a range of behavior in interacting with their legal obligations. Moreover, what pressures
with the law. U.S. foreign policy and its relation to can or will be brought to bear on the parties to comply
law is perhaps most clear. The United States privileges with the law remains difficult to foresee given the
freedom of navigation as the fundamental basis for gravity and significance of the case.
the modern law of the sea and allows this principle But has existing international law had an effect on
to guide its practice in water and air. This stems China’s behavior to date? Testing this claim involves
from a reading of socio-legal history that ascribes to looking at China’s practice and action with respect
maritime law a critical role in modernizing the world’s to international law’s two core functions: enabling
communications, trade, and cultural linkages. For (facilitating) foreign policy behavior, or constraining
the United States, the law of the sea is the bedrock (foreclosing) policy options. In other words, is law
of global and civilizational development. When the “shaping” behavior to conform with legal norms or
United States insists that a rules-based order and the state practice?
peaceful settlement of disputes must prevail, it means International law has in fact both enabled and
what it says and acts to this end. The law of the sea, constrained China’s foreign policy since 2009. In
through UNCLOS, represents “formal justice” for U.S. that year, the disputes in the South China Sea began
strategy and policy. to fall within the “shadow of law” and move toward

2
 Maritime Awareness Project Analysis • April 14, 2016

implicating globally normative interests in upholding after these rights were already in place, they remain
the rule of law. Vietnam and Malaysia’s joint submission in law historically according to China’s legal opinion.
that year for an extended continental shelf triggered China therefore believes that it has both binding law
China’s formal reintroduction of the nine-dash line. and historical justice on its side in the South China
Given its activities to advance resource extraction Sea disputes. The upshot is that international law does
projects in the disputed areas, China was pressured matter for China and enables its foreign policy, but this
throughout 2010 to make its legal position transparent. reading of law is entirely at odds with contemporary
China gradually realized that it needed the cover of opinion. This is most starkly expressed in the words
law to provide legitimacy and credibility to its maritime of the Philippines’ legal team, which argues that
claims. However, the opaque and invalid legal defense historical titles and rights were removed or superseded
it put forward meant that modern law was at this by UNCLOS. This disparity of interpretation reveals
point foreclosing policy options. This changed in 2013 that there is a significant contest unfolding in the
when China, through the writings of distinguished South China Sea over which sources and interpretive
international lawyers, demonstrated how maritime branches of the law of the sea are valid. Accordingly,
law in the South China Sea should be interpreted to be the outcomes of this contest will have a profound
consistent and binding on China. As outlined by Judge impact in structuring future legal cases in the Indo-
Gao Zhiguo (International Tribunal for the Law of the Asia-Pacific and the Arctic region.
Sea) and Professor Jia Bingbing (Tsinghua University) Though China had a legal defense in place, the
in the American Journal of International Law, China 2013 arbitration put the country in a delicate bind.
had three interpretive options for the nine-dash line: to Because of the nature of the questions that the panel
serve as a basis for outlining sovereignty over just the of arbitrators was asked to address, Beijing realized
maritime features; to preserve certain historical rights that it had a very weak defense in reference to modern
of fishing, navigation, and resource extraction; or to legal interpretation. Remaining out of court was the
delimit potential maritime boundaries. These three only authoritative advice that China’s legal experts
options, bolstered by the opinion of Judge Xue Hanqin, could have given to the Chinese Communist Party
the Chinese-national judge at the International Court (CCP). Initially, then, modern law restricted China’s
of Justice, consolidated the Chinese legal case. behavior in removing it from the international dispute-
At the official level, China has never formally settlement system. But critically the arbitration set in
outlined or confirmed its legal case due to the strategic motion the “legalization of the dispute,” making law
flexibility this use of ambiguity provides. There are the dominant frame through which all states’ actions
reputational costs for states in not being transparent, have been evaluated. While Chinese legal scholars (and
but Beijing has decided to absorb these because of one prominent European) attempted to argue China’s
the difficulty in making its case within the context of position on sovereign entitlement in public forums,
the modern law of the sea. China’s position appears the process of legalization drew in Indonesia, India,
to be that the applicable law for the South China Sea Japan, Australia, and the European Union to demand
predates the construction of UNCLOS and that its that the international rule of law prevail.
validity survives the creation of this new maritime Caught within a legalized regional community,
legal architecture. China believes that it has valid legal China’s policy then was significantly and materially
claims under customary international law and could modified, triggering the intense island reclamation
apply forms of historical title and/or historical rights process now underway. In this sense, law facilitated
(tantamount possibly to an internal waters claim), the policy change by forcing China to act within a tight
application of which renders conflicting UNCLOS policy space. Because Beijing could see that the final
articles moot. Given that UNCLOS was constructed

3
 Maritime Awareness Project Analysis • April 14, 2016

scramble for the underwater features was underway in downgrades all possible jurisdictional extensions
the South China Sea given the industrial capacity of the from the maritime features in question and grants
claimant states, an aggressive foreign policy grounded the Philippines full exclusive economic zone
in a logic of defensive action became its most promising resource rights.
option. Ironically, the move toward legalization has China, however, is but one party to the South
in some part contributed to the expansionary “great China Sea disputes. Hence, what the region demands
wall of sand” we witness today. of China post-verdict will be critical in evaluating how
The pivotal question, of course, is what can be (and to what extent) the law will matter in the future.
expected from China once the arbitral tribunal has No state supports the nine-dash line as law. If China
determined the law for the South China Sea on the insists on the validity of the nine-dash line on the
issues raised in the case. Given how intense Chinese basis of historical justice, even in light of a ruling that
domestic opinion has been about the narrative of rejects that argument, the world will enter, yet again,
historical justice, the CCP will likely subordinate a new phase of conflict between the closed and open
international reputational costs to reinforcing its seas—this time within the militarized neighborhood
domestic legitimacy. This outcome is all the more of the Indo-Asia-Pacific. u
probable given that China will face a verdict that

Banner image source: esmall/CC BY-2.0 (cropped)

This analysis was originally published on the maritimeawarenessproject.org website.

The National Bureau of Asian Research

(NBR) and the Sasakawa Peace Foundation
USA (SPFUSA) partnered to develop the Sasakawa Peace Foundation USA
maritimeawarenessproject.org website as a
resource for analysis and data on maritime
issues throughout the world.