US Perspective

"China and International Law/Norms: A US Perspective"

China’s territorial disputes with its maritime neighbors have become the most contentious and high-profile elements in Beijing’s regional foreign policy—so much so that they overshadow and complicate other dimensions of its relations with the region. These quarrels have deep historical roots and have produced periodic crises and occasional clashes since the 1970s. But they have taken on new prominence and significance during the last several years as tensions with rival claimants have escalated and remained relatively high, decimating the diplomatic gains Beijing had achieved through a “charm offensive,” efforts to cultivate “soft power,” and the vestiges of an obsolescent policy of “hiding brightness and nourishing obscurity” (taoguang yanghui). With China’s dramatic rise as a regional great power and incipient superpower, its perceived aggressiveness has inevitably been more alarming to the region’s lesser powers.

Conflicting claims to territory, by their nature, tend to generate conflict. Typically, they are zero-sum games, and each side views—or at least portrays—the other as trying to change the status quo of rights to, or control over, contested areas. Whatever the general pattern, there is little disagreement—even among those who do not see Chinese foreign policy generally as having become more hard-line—that Beijing’s stance on the East and South China Seas has become more assertive beginning in the late 2000s. Its approach to these issues—and to the currently quiet question of Taiwan—implies potential challenges the regional status quo and, more clearly and fundamentally, to international legal rules and the political norms that underpin them.

In mid-2012, China sent civilian China Marine Surveillance (CMS) and fisheries enforcement ships to the South China Sea near Scarborough Shoal, and strung a net across the mouth of the shoal, blocking the access of Filipino fishing boats (and Manila’s government ships) and shifting effective control of the area A few months later, it dispatched a mixed flotilla of fishing boats, CMS ships and the PLA navy to the East China Sea around the Diaoyu/Senkaku islands, entering closely adjacent waters, launching drone overflights, creating a stand-off at sea with Japan, and thereby undermining Japan’s long-standing exclusive control of the area. These events occurred when the perennial flashpoint in China’s territorial sovereignty disputes—Taiwan—had become an unusually bright spot in the PRC’s external relations, characterized by seemingly sturdy tolerance for the status quo and far removed from the anxiety that had prompted Beijing to adopt a use-of-force-threatening Anti-Secession Law in 2005.

To be sure, Beijing’s status quo-subverting or assertive actions did not occur in a vacuum. Its measures toward the Diaoyu/Senkaku came in the aftermath of the Noda government’s move to “nationalize” land on the islands owned by Japanese citizens. In the South China Sea, China’s actions unfolded against the latest in a long series of tussles between Chinese fishing boats and the Philippines enforcement authorities, recent submissions by Vietnam, Malaysia, and the Philippines of continental shelf claims to an UNCLOS process that China rejected, and a Vietnamese law asserting maritime jurisdiction. So too, in an earlier period, the Anti-Secession Law and Beijing’s enlisting Washington to criticize a 2008 referendum in Taiwan on pursuing UN membership had come in reaction to the pro-state-like-status (if not truly pro-independence) agenda pressed by President Chen Shui-bian.

Some of China’s moves—particularly those targeting Scarborough Shoal and Diaoyu/Senkaku—have been characterized plausibly as retaliatory escalation. Yet, the Philippines’ efforts to enforce fisheries jurisdiction and other regulatory rights was, at most, a small change compared to China’s response that established—with state ships and a physical barrier—a qualitatively new level of Chinese control in the region. The PRC’s substantial and sustained disruption of Japan’s long-established dominion over contested East China Sea areas reacted to Noda Yoshihiko’s nationalization of privately owned property that was undertaken largely to prevent an outcome that would have been more provocative and problematic for Beijing (acquisition of the land by the ardently nationalist Tokyo Governor Ishihara Shintaro). However one assesses the merits of any party’s case in these incidents and even if one concludes that much of the blame falls to other parties, Beijing’s positions on territorial disputes in the East and South China Seas—and to a considerable extent Taiwan—are in several ways inconsistent with the status quo, including conventional norms of international law and the support they provide for regional stability.

First, and most simply, China’s assertion of sovereignty—and, indeed, “indisputable” and non-derogable sovereignty—over areas it has not controlled claims a right to change the status quo. If the islands in the South China Sea, the East China Sea and across the Strait are, as Beijing claims, “really” sovereign—indeed, “sacred”—Chinese territory, then they are places where the government of China (the PRC) has a right to exercise all powers of a sovereign state. Any presence or exercise of those powers by others can occur only at the sufferance of the PRC or in violation of China’s rights. If Beijing’s argument stopped there, it would challenge existing patterns of control, the positions of other claimant states and, in many cases, the conclusions that would be reached by applying ordinary international legal rules for determining sovereignty. China’s position then might imply an inchoate threat but little inclination to act in ways that might upset regional stability and security. That is the stance Beijing adopted in the 1970s when it forewent a request to put Hong Kong and Macao on the UN agenda for decolonization, and it is the approach Beijing sometimes has taken to territorial disputes in more recent times.

But Beijing’s policies also engage the world as it is. In that world, actual exercises of authority matter for the law and politics of sovereignty and can produce friction and instability. In the South and East China Seas, long-term control—and newly acquired control—of landforms and adjacent waters by other states inevitably imperils China’s (or other non-controlling states’) claims. Because the usual “thick” exercises of sovereignty such as inhabitation by a state’s citizens or effective administration by its government are impossible on the tiny islands, even small steps by any state to increase control can imperil other states’ claims. The stakes are high because international legal norms grant economically and strategically valuable rights over large areas of ocean and seabed to whichever state holds sovereignty over the landforms. In this context, China and its rivals are understandably wary of change—and tolerance for the absence of change—in actual control. More than other interested states, however, China is in a position to change the status quo and has recently moved to do so. This problematic dynamic extends to more populated and conventionally governable disputed territory, principally Taiwan—where protracted separate and autonomous rule by the ROC has been a long-term threat to China’s claims of sovereignty and at times (although not recently) has prompted crisis-creating or crisis-escalating threats from Beijing.

Second, and more fundamentally, PRC positions go beyond potential or in-principle rejection of de facto control over disputed areas to question the “rules of the game” (including legal ones) that assign rights. Beijing’s view of the significance of history is extraordinarily expansive and distinctive, departing sharply from mainstream understandings: the South and East China Sea islands, Taiwan (as well as Hong Kong) and—in the most marked deviation from international norms—the South China Sea itself (within China’s notorious U-shaped 9-dash line that extends to near the main coastlines of other claimant states) “always” have been Chinese sovereign areas, or at least have been so since dimly remembered “ancient times”; nothing in the tumultuous history since then can have changed this fact—not conquest and protracted control by foreign powers, not formally sovereignty-ceding treaties with Japan or European powers (which China regards as “unequal” and therefore invalid), and not the customary and treaty-based law of the sea (which, in China’s view, grandfathers in broad and vaguely defined “historic rights”); and, to the extent that China ever might have lost such territories, sovereignty was later restored and Japan, the United States, and others committed themselves to implement and respect that restoration through binding promises that came out of the Second World War.

Beijing’s view of the rights that accompany territorial sovereignty is strikingly expansive and at odds with mainstream understandings of international rules. In the South and East China Seas, China’s claims are often murky and imprecise, but they sweep broadly to assert vast areas of dominion: drawing capacious straight baselines for maritime zones around widely scattered small landforms; apparently adopting equidistant demarcation lines between tiny PRC-claimed islands and adjacent states’ main land areas; seemingly assuming full-fledged, up to 200-mile Exclusive Economic Zones (EEZs) around islands that may be no more than rocks; and arguing for a questionable “natural prolongation”-based delimitation of the continental shelf that would give China the lion’s share of the seabed—and the oil and gas beneath it—between China and Japan.

The rights Beijing envisions are more expansive conceptually as well as spatially than predominant understandings of international norms allow. Within its purported EEZs, it asserts more than the conventional powers of economic, environmental, and other regulation. It regards the traditional and recognized rights of offshore military surveillance by the United States and others as a form of “maritime scientific research” that the law of the sea allows it to regulate. Beijing sometimes points to ill-defined “security rights” as a basis for resisting surveillance and other forms of foreign military presence off its coast. Those asserted rights rest on unclear and questionable international legal foundations: UNCLOS rejected Beijing’s preferred view that EEZ rights include security rights; and any claim to non-UNCLOS-based security rights entails a radically broad view of what constitutes a foreign naval power’s threat to China’s security or sovereign autonomy and a rejection of long-entrenched norms of states’ rights to send military ships relatively near other states’ coasts.

Here too, the pattern resembles Beijing’s position on Taiwan, as well as Hong Kong—the entity that most nearly reflects Beijing’s template for Taiwan: whatever rights of autonomy and provisions for special governance such special regions might enjoy (as under the Hong Kong Basic Law), they are products of discretionary choices by the Chinese sovereign about how to exercise its sovereignty over its territory and people; the United States, other states and the international community lack standing to limit China’s choices or to interfere (including through arms sales to Taiwan) in such “internal affairs” of China; international legal and political norms prohibiting the use of force across international borders or supporting self-determination of peoples (which can include a right to a separate state) have little or no application to these areas within Chinese territory occupied by Chinese people. In the hoary PRC view, sovereignty over Taiwan is a “core interest” to be protected by force if necessary. Tellingly, one of the moments most fraught with tension over the South China Sea occurred when State Councilor Dai Bingguo may have referred to the region as a “core interest”—and thus akin to Taiwan, Tibet, Xinjiang, and so on.

Paradoxically, China portrays its positions—which are revisionist in principle and, potentially and occasionally, in practice—as reflecting and protecting the status quo. As Beijing officially sees it, after all, the territories are already under Chinese sovereignty. Japan’s nationalization of land in the Diaoyu/Senkaku, any “secessionist” move on Taiwan to declare independence or assert full state-like status, Southeast Asian states’ purported regulation of fishing or oil exploration rights, and US arms sales to Taiwan are among the many moves that could challenge China’s undiminished and unbreakable (if often unexercised) sovereignty and that, in many cases, violate international legal obligations and commitments of other states to respect China’s sovereignty. Those actors, not the PRC are, in this view, the ones threatening to upset the status quo.

States in the region have found China’s benign self-portrait unconvincing, and increasingly so. This has created openings for the United States to cast itself credibly as the defender of the status quo and, in turn, regional stability and security. It has seized this opportunity to build closer cooperation with newly willing partners and to insist that such moves are status quo-preserving. The United States has: avoided taking sides on the volatile and status quo-imperiling question of sovereignty over the islands in the South and East China Sea and Taiwan as well; supported existing de facto patterns of administration (particularly of Japan in the Diaoyu/Senkaku and the ROC government in Taiwan) and opposed unilateral moves (especially by China) to alter existing arrangements through force or coercion; called upon all parties to respect international law—as understood by the United States and much of the wider international community—including principles that demand open access and free passage through the South China Sea and other international maritime zones, and that oblige states to resolve their disputes through peaceful means. Tellingly and wisely, it has presented its security “pivot” or “rebalancing” toward Asia as reflecting continuity in US policy. On this account, the United States is not “back” in Asia because it never “left.” It has merely reaffirmed long-standing commitments to allies (Japan, Korea and the Philippines) and long-standing friends, and has engaged with newer partners who also support existing rules, stability, and the status quo.

Another paradox in China’s stance on sovereignty has created space for this US strategy and, for the time being, also has supported regional stability. Precisely because Beijing says that the South and East China Sea regions and Taiwan (and other places) are already under unshakeable Chinese sovereignty, there is in principle little need for the PRC to seek immediate change in the legally and normatively insignificant control over these areas by other governments. With the principle of undisturbed Chinese sovereignty firmly in place, accommodation and patience are possible in practice, potentially for a long time. That has been China’s posture toward Taiwan since the late 2000s. Still, the crises that previously beset cross-Strait relations, the possibility that they might return as the agenda turns to issues of political relations and sovereignty, and the repeated ebb and flow of tensions in the South and East China Seas since the 1970s (and even within the last few years) are all reminders of the significance of the unyielding principles behind fluctuations in China’s prudential and instrumental practices. Therein lies an enduring and complex challenge for Washington’s strategy of supporting stability and the status quo: it must take advantage of opportunities to promote non-disruptive behavior from Beijing while it also avoids over-reading moments of cooperation and low tensions (as well as periods of friction and crisis) as indications of reliable and durable changes in China’s principles or the revisionist agendas they imply.