Realising the Great Change: Beijing’s South China Sea lawfare strategy
Realising the Great Change: Beijing’s South China Sea lawfare strategy
WRITTEN BY RYAN LUCAS
13 May 2021
In June 2018, President Xi Jinping spoke at the CCP Central Work Conference on Foreign Affairs, where he stated that the world is currently experiencing a “once-in-a-century great change” (百年未有之大变局). Following this speech, the concept quickly became a prominent dictum in contemporary PRC foreign policy propaganda. This “great change” is understood to refer to the shift from the current US-dominated international system to a more multipolar system that better accommodates China and other developing nations. It is in part driven by a period of instability, launched with the 2008 financial crisis and now exacerbated by the pandemic, which in Xi’s words has “brought the world into a phase of fluidity and transformation”. Although this trend has not yet displaced the US from its hegemonic status, it provides an important strategic opportunity to China and creates favourable conditions for China’s national rejuvenation.
PRC policymakers and scholars view the construction of a stronger domestic and international legal apparatus as critical to taking advantage of these geopolitical trends. Last November, the CCP officially established “Xi Jinping Thought on the Rule of Law”, which is meant to guide and promote law-based governance in China. While a significant component of the guidelines for “Xi Jinping Thought” is inward-facing, it has important implications for China’s foreign affairs. In a recent essay, Politburo member Wang Chen wrote that amidst the “great changes”, China must improve upon the “many shortcomings and weaknesses” of its international legal apparatus and strengthen mechanisms to “effectively respond to challenges and prevent risks”. In the People’s Daily last month, the Dean of Renmin University’s School of Law argued that China must enhance its ability through international law to formulate rules, set the policy agenda, and shape public opinion.
Lawfare in the South China Sea
China’s concerns about international legal governance are perhaps best exemplified by the South China Sea, where other countries widely view Beijing’s actions as revisionist and in contravention of existing international norms. Most importantly, the international tribunal convened for the Philippines vs. China case in 2016 largely rejected China’s legal claims in the South China Sea. The United States and other key actors routinely qualify their opposition to PRC actions as a commitment to a “free, open rules-based order, rooted in international law”. In the war of narratives over China’s behaviour in the region, Beijing may take meaningful steps to improve its legal justifications for its expansive claims and assertive actions. In March, a host of China’s leading academics and thinkers on the region contributed to a special collection of articles analyzing the United States’ South China Sea Policy under the “great changes” framework. The articles were published in Frontiers, a People’s Daily-affiliated academic journal that “focuses on providing academic support for policy decisions”.
Too often, foreign policy analysts have focused principally on the hard power component of China’s ambitions in the South China Sea. This security-centric approach, while important, risks downplaying a critical piece of China’s South China Sea strategy in the post-pandemic era.
A consistent theme in the seven articles in the series is an explicit emphasis on improving China’s maritime soft power, with a focus on building China’s maritime legal capacity and “discourse power”. This is driven by an expectation that the Biden Administration will continue, if not increase, the Trump Administration’s level of diplomatic support to regional states, most explicitly with its July 2020 rejection of China’s maritime claims. One article by Fu Kuncheng, a Professor of Law at Hainan University, argues that China must take steps to further develop its legal position in the South China Sea and “improve [China’s] deficient laws” in expectation of intensified “legal warfare” from the Biden Administration. According to Fu, China must “moderately explain the mistakes of other countries while loudly proclaiming what our historical rights…and legal nature of the Nine-Dash Line in the South China Sea are”. Zhu Feng, Director of Nanjing University’s South China Sea Collaboration Center, also highlights the “possibility of another ‘legal war’” surrounding the South China Sea disputes and argues that China must “encourage Chinese social forces to play a greater role in the struggle” over South China Sea discourse. Jin Yongming, of the Ocean University of China, writes that China should “take effective measures as soon as possible to integrate [relevant departments] forces and concentrate on in-depth research on the nature of the Nine-Dash Line, announce it at the right time, and prepare for various responses”. The authors also point to the ongoing consultations on the South China Sea Code of Conduct as a critical node for China pursuing its legal and diplomatic objectives in the region.
Mitigating risks and preparing for the legal struggle
It appears that the PRC government is already taking steps to codify a stronger legal apparatus for the South China Sea. The 14th Five-Year Plan passed at the National People’s Congress in March states that China should “strengthen situational research, mitigate risks and [prepare for] legal struggle, strengthen maritime legal construction, and resolutely safeguard national maritime interests”. The Plan also states that the PRC should “orderly advance the legislation of the Maritime Basic Law”. No draft of the Maritime Basic Law has been released but based on available reporting and domestic commentary the Law will likely standardise PRC official maritime policy from the existing piecemeal laws and regulations. Most controversially, the Maritime Basic Law could include delimitations of China’s claimed jurisdiction in the South China Sea, such as a declaration of territorial baselines in the Spratly Islands. The Five-Year Plan also comes on the heels of the passage of China’s Coast Guard Law, which signals a tougher legal backing to China’s enforcement of its maritime claims in the South China Sea.
Many of these policy prescriptions are not new. The previous Five-Year Plan, released in 2016, stated that the PRC should “formulate” a Maritime Basic Law, leading some commentators to believe that the introduction of the Law was on the immediate horizon. In addition, some of the Frontiers authors proposed legal solutions that they have long argued for. But now, we are seeing a major initiative from the highest echelons of the CCP to promote legalistic solutions to China’s international problems and seize the opportunity presented by the “great changes”. China’s leaders clearly see a path forward in using legal norms to frame China’s ambitions to influence global governance and counter the actions of the United States. This will likely bring renewed attention to defining and shaping China’s claims in the South China Sea.
Of course, preparing for an upcoming legal battle is not the only component of the PRC’s South China Sea strategy. In Frontiers, Wu Shicun, the Director of the National Institute for South China Sea Studies, argues that the South China Sea is in the middle of a Sino-American “struggle for dominance” that is “strategic, structural, and irreconcilable”. According to Wu, tensions will not be reduced in the short term and so China must promote the continued “two-pronged development of maritime hard power and soft power” to secure the upper hand. Too often, foreign policy analysts have focused principally on the hard power component of China’s ambitions in the South China Sea. This security-centric approach, while important, risks downplaying a critical piece of China’s South China Sea strategy in the post-pandemic era. As top-level politicians and subject matter experts in China increasingly highlight the need for a legalistic approach to foreign affairs, regional policymakers should be prepared to strengthen their soft power strategies.
DISCLAIMER: All views expressed are those of the writer and do not necessarily represent that of the 9DASHLINE.com platform.
Author biography
Ryan Lucas is a Research Assistant with the Defence Strategy and Planning Program at the Stimson Center, where his research focuses on the use of the armed forces in Chinese foreign policy. He holds a B.A. from Johns Hopkins University in International and East Asian Studies, a Graduate Certificate in Chinese-American Studies from the Hopkins-Nanjing Center, and an M.A. from Johns Hopkins University School of Advanced International Studies. Image credit: Wikipedia.