The Horns of China’s Dilemma
Thus, China’s strategic interests often work at cross-purposes. On the one hand, Beijing would prefer to resolve the South China Sea dispute as quickly and peacefully as possible. The dispute has stymied greater regional integration, and in recent years, China has acquired a reputation for bellicose behavior that has chilled its regional relationships. On the other hand, though, China also does not want to lose control of such a strategically important area. Its hands are further tied by a nationalistic and often pugilistic public that looks suspiciously at any perceived concessions or weaknesses on China’s part. In short, China could try to resolve the dispute through either compromise or aggression, but neither is an appealing option.
So instead of trying to resolve the conflict, Beijing has hedged and adopted a strategy of delay. Caught between competing strategic interests, China has sought to maintain enough control to preserve its claims without exerting
too much control in a way that might unnerve other disputants. So while China will defend its claims against other states’ aggression, it has generally preferred to avoid destabilizing the status quo. Of course, a delaying strategy also plays to China’s greatest strength: its expanding power and long-run growth trajectory. Why should China try to resolve the conflict now when its negotiating position improves every fiscal quarter?
China’s Legal Strategy in the South China Sea Dispute
For the best example of the delaying strategy at work, look no further than China’s legal strategy. This strategy is a carefully crafted mix of substantive legal claims and negotiating tactics, all aimed at preserving the status quo while maintaining maximum flexibility in the future.
China has embraced ambiguity as a key pillar of its legal strategy. Even today—after several decades of controversy—the scope of China’s claims remains unclear. In fact, China has only muddied the waters in recent years with its formal introduction of the infamous “nine-dash line.” In 2009, Malaysia and Vietnam filed a Joint Submission to a U.N. body setting forth the limits of their outer continental shelf claims. China responded the next day with a
note verbale protesting the two countries’ claims. The Chinese
note stated, somewhat cryptically, that “China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map).” The attached map showed a nine-dash line reaching from China’s coast and encompassing nearly the entire South China Sea. Since then, countries and commentators alike have wondered what—if anything—the nine-dash line indicates. It seems clear enough that China claims title to all the islands that fall within the expansive boundaries of the nine-dash line. Less clear, however, is whether it also lays claim to all the
waters encircled by the line.
To do so would be a blatant violation of China’s international obligations. Under customary international law, states are bound by the principle of “
la terre domine la mer” (the land dominates the sea), or the idea that sovereignty over waters flows from sovereignty to nearby land, and not the reverse. In line with this principle, the U.N. Convention on the Law of the Sea (UNCLOS) permits nations to control domestic waters extending only a certain distance from their sovereign territory. Even under the most charitable reading of UNCLOS, Beijing could not lawfully claim control over much of the water enclosed by the nine-dash line.
Especially in the United States, many commentators have assumed that China interprets the nine-dash line expansively. But Beijing has never officially clarified which interpretation it means to adopt. Its refusal to do so is striking, especially because nearly all commentators on the South China Sea dispute—including several Chinese scholars—have urged China to clarify its ambiguous legal claims.
Instead, the Chinese government has deliberately adopted a legal policy of studied ambiguity about the scope of its claims. This “strategic ambiguity” is just one facet of China’s larger strategy of delay. The nine-dash line creates the legal space for more expansive interpretations of China’s claims in the future, but it does not necessarily call for them now. As a result, China maintains flexibility in the long run while avoiding the short-term costs of advancing unrealistic claims. Of course, even a policy of strategic ambiguity has costs—China has been roundly criticized for its reliance on the nine-dash line, most recently by the United States. But China’s willingness to bear these costs testifies powerfully to its reluctance to embark upon either a policy of compromise or one of aggression.
China’s delaying strategy has also affected the way in which China negotiates its legal claims. First and foremost, China has done its best to avoid resolving the conflict. While it has formally committed itself to a process of peaceful resolution, in practice Beijing has tirelessly advocated for a policy of “joint development” whereby claimants should postpone resolution of the sovereignty disputes until conditions are “ripe.” Until then, all the parties should work together to develop the resources of the South China Sea jointly. Although the approach has gained little traction, it would allow China to evade its dilemma if enacted: Beijing could promote regional peace while still exploiting the Sea’s resources and maintaining its sovereignty claims.
As another negotiating tactic, Beijing has insisted upon resolving the South China Sea disputes on a bilateral basis. According to the conventional wisdom, China prefers one-on-one bargaining over multilateral negotiations because it can more easily bring its strength to bear on a single negotiating partner. But bilateral negotiations also entail a second and perhaps more important benefit: they allow Beijing to control the pace of negotiations. In contrast, multilateral negotiations make it easier for other claimants to strike deals among themselves that force China to act. Even when China has been unable to prevent other parties from convening, it has stymied progress by co-opting individual states and taking advantage of internal divisions.
The Increasing Irrelevance of China’s Legal Strategy
For many years, China’s reactive posture served it well. From the mid-1990s to the early 2000s, China and the other claimants prioritized international law and diplomacy in both word and deed. By the mid-2000s, however, the other disputants – especially Vietnam and the Philippines – realized that they were at the losing end of China’s delaying strategy. If they played on China’s terms, they would continue to forfeit leverage. So they changed the rules of the game.
The parties have continued to mouth the same rhetoric, but they have begun altering their underlying conduct. Instead of emphasizing the substantive law, the smaller claimants – especially the Philippines and Vietnam – have perfected a new but incredibly risky strategy: throwing China onto the horns of its own dilemma. Manila and Hanoi both know that they cannot hope to force China to surrender all of its claims, but they calculate that they may be able to wring significant concessions out of China so long as Beijing continues to waver between aggression and compromise. In the last decade, the Philippines and Vietnam have therefore attempted to pressure China by changing the on-the-ground reality and internationalizing the conflict. By adopting a more pro-active posture, the two countries hope that China will be forced to make a decision between responding aggressively—thereby imperiling its long-term growth strategy—and conceding some limited ground in the dispute. The Philippines and Vietnam are banking on China choosing the latter.
While China was initially caught off guard by Manila and Hanoi’s new strategy, it quickly recovered and honed a new, two-pronged strategy. As Peter Dutton has pointed out, the first prong emphasizes non-militarized coercion. As one aspect of this strategy, China has flooded the South China Sea with a slew of “white hulls,” or ships owned by China’s civilian maritime agencies. These vessels are then used to push back against the other claimants by, for example, detaining foreign fishermen or cutting the cables of oil exploration vessels. Most recently,
—protected, of course, by an armada of white hulls. As part of this strategy, China has also used its economic heft to “discourage” international investors from plunging into the troubled waters of the region.
As part of the second prong, Beijing has continued to expand and bolster its naval capabilities. These capabilities are then used almost exclusively for deterrence purposes; China does not want to engage in direct conflict, but rather seeks to put a cap on the non-militarized coercion of the first prong and to prevent it from spiraling out of control. As a result, when Philippine ships encounter Chinese civilian maritime vessels, they always know that the People’s Liberation Army Navy (PLAN) lurks just out of sight.
