By Finian Cullity

All good states, through their leaders, periodically profess their love and respect for international law. Being the metaphorical glue holding the “international community” together, it’s hard for them to do otherwise.

Of course, international law is typically ignored by a state when its interests may be negatively affected. But when the converse is true, it’s a safe bet that we’ll hear a lot about it from those whose interests it favours.

Such has been the traditional, longstanding and unashamedly cynical view of how states treat the rules that, with varying degrees of effectiveness, regulate their conduct. It applies with even more force to those states that occupy positions of power within a given international order.

Interestingly, however, recent events suggest that a subtly different attitude to international law prevails in China. No doubt international law is at times viewed relatively straightforwardly as either a constraint upon strategic freedom of action, or as another potential bullet point in a press release designed to garner legitimacy for China’s position, whatever it may be.

But what is becoming more apparent is the shrewd way in which Chinese foreign policy has begun to use international law as a weapon to achieve designated goals. No longer an afterthought or a mere rhetorical device, international law now helps to define what is possible and achievable for Chinese strategy, most notably in the South and East China Seas.

The modus operandi is to focus upon an international legal grey area, take some form of strategic action and then justify this by reference to a legal argument which is not entirely untenable in view of the unclear state of the law. The desired result is that other states will be faced with a fait accompli, a state of affairs with which they may be unhappy, but about which they can do precious little.

A Brief History of International Law in China

Before delving into this pattern of behaviour in detail, it’s worth considering the historical background of China’s relationship with international law for two key reasons. The first is that history, strategy and law are best thought of together.^[1] An appreciation of one is crucial to an appreciation of the others, but oftentimes the very act of drawing a division between them is the problem. They are all interrelated.

The second is that an understanding of the broad outline of history is becoming indispensable to a sophisticated appreciation of the current state of East Asian relations. Disputes that ostensibly revolve around the control of a “bunch of rocks”, as the Obama administration’s senior director of Asian Affairs on the National Security Council once memorably (if worryingly) put it, make little sense without a knowledge of the history of the region.^[2] Further, an understanding of the “cold new legalism” infusing East Asian relations is increasingly important.^[3]

So what are the important historical antecedents in China’s relationship with international law?

For hundreds of years prior to the mid-nineteenth century, China stood at the apex of the (in)famous tributary system.^[4] Its moral and cultural superiority was acknowledged by its neighbours through tribute, and the enactment of other customs designed to demonstrate subordination.

All of this changed with the arrival of Westerners and the establishment of the ‘unequal treaties’. The Tongzhi Restoration took off around this time.

A substantial part of the reforms was bureaucratic in nature – unsurprisingly for a country that laid claim to the world’s largest and longest-lived bureaucracy. In particular, the Zongli Yamen – the precursor of a modern Foreign Ministry – was created in 1861 by Prince Gong, the regent serving on behalf of the child Tongzhi Emperor. The Zongli Yamen served to coordinate foreign dealings that were previously the responsibility of different bureaucratic units, but it was limited in important respects. It was, for example, specifically acknowledged by the Qing court as merely temporary – the foreigners, it was thought, would not be around forever – and its status was purposefully lowered so as to be commensurate with the foreign “barbarians” with which it dealt.

For present purposes, the most important task overseen by the Zongli Yamen was the translation of Anglo-American works of international law. First and foremost was Wheaton’s Elements of International Law, an American textbook first produced in the 1830s. Whereas previously the prevailing view was that the works of foreigners had little or nothing to offer a civilization as self-evidently accomplished as China’s, the reformists – such as Prince Gong himself, saw the need for China to ably navigate an entirely new type of international relations.

Soon, the translation of these works proved themselves to be of more than mere academic value. In the 1860s, Prussia and Denmark were at war. When Prussia captured a Danish ship close to China’s waters, China responded by invoking international legal concepts it had just recently learnt, namely, the notion that it was sovereign over its “territorial sea”, or as it called it, its “inner ocean”. The Prussians were informed that should the ship not be released then China could refuse a reception to one of their officials.

The Prussians backed down and ultimately, China received compensation in the order of $1500 and secured the release of the captured ship. Three hundred copies of the translated version of Wheaton’s book were published by the Zongli Yamen and distributed throughout the country.^[5]

While the line from the 1860s to the present day does not run straight, this skeletal historical overview illuminates something important: China, from very early on, has viewed international law in an extremely instrumental way. International law constitutes the rules that governed the European powers for centuries – rules very different from those that prevailed in the East Asian order in which China played a pivotal part. Though China learned these rules out of necessity, the point is that they had to learn them. This is obviously something the European powers never really had to do, as international law basically represented the accumulated sum of their interactions over time.

From the time China took up its seat on the UN Security Council, a far larger exercise in training competent international lawyers has been underway. As China’s integration with the wider world gathered pace, this exercise became all the more important.

This educational process may now be bearing fruit if China’s recent activities in the East and South China Seas and are anything to go by.

The East China Sea and the Battle of the ADIZs

China recently declared an Air-Defense Identification Zone (ADIZ) over the Senkaku/Diaoyu Islands in the East China Sea. An ADIZ is essentially a zone in which “civil aircraft must identify themselves and may be subject to air traffic control if they intend to  fly from  non-sovereign airspace into sovereign airspace”.^[6] It enables states to ascertain the identity of potentially incoming aircraft to ensure their compliance with the lawful entry requirements of that state.^[7]

While the US has had ADIZs since the end of World War II, this is China’s first.^[8] But it is of more than historical interest: it reveals much about the state of play in Asia today.

China’s ADIZ overlaps with those of South Korea and Japan, and those states reacted strongly. While Japan’s response was largely confined to rhetoric, South Korea expanded its ADIZ so that the area of overlap with China’s was further enlarged.^[9] The US responded by sending two unarmed B-52 bombers through China’s ADIZ on a “routine” flight. Defence Secretary Chuck Hagel also made clear the US’s displeasure at China’s move, as did Vice President Joe Biden on a trip through Northeast Asia only a few weeks after the declaration.

But what the US didn’t do is also important. At no time did the Obama administration reject the notion that China had the right to declare an ADIZ as it just had – a point former Bush-era UN Ambassador John Bolton noted with barely concealed contempt.^[10] The administration did not “expressly reject” the ADIZ; it merely denounced its tendency to inhibit cooperation and trust in Asia. While it’s important not to overstate the importance of international law here, it’s clear that this response was partly fuelled by the fact that China’s move is, at least, not obviously unlawful.^[11]

Under Article 1 of the International Convention on Civil Aviation (Chicago Convention), every state has complete and exclusive sovereignty of the airspace over its territory, which includes its land mass and the three-mile territorial waters adjacent to its coastline mandated by the UN Convention on the Law of the Sea (UNCLOS).

An ADIZ therefore makes sense when applied to civil aircraft as a kind of buffer zone. But what about military aircraft? The law on this point, as international law and ADIZ expert Peter Dutton has concluded, is sparse. As freedom of navigation for military vessels is generally accepted within a state’s 200 nautical mile EEZ under UNCLOS, an argument can be made that a similar principle applies to aircraft.^[12]

The problem: China is one of those states that do not wholeheartedly accept the freedom of navigation principle as it applies under UNCLOS. It therefore has even more latitude in crafting arguments to support its ADIZ. And the US and its partners know it.

The South China Sea and Arbitration

The dynamics in the South China Sea are slightly different. Here, China’s declared “nine-dash line” marking out its territorial claims to almost the entirety of the sea and the land formations it encompasses has provoked tensions with Vietnam and the Philippines in particular.

The start of this year saw the Philippines issue a Notice and Statement of Claim initiating dispute proceedings under UNCLOS. Any hope that these proceedings might help to clarify the validity of the central claims at issue is slim. For one thing, the arbitral panel which has been set up to adjudicate the dispute has no jurisdiction, as the Philippines admits in its initiating documentation, to determine either the sovereignty of the Spratly Islands and other land formations, or to draw maritime boundaries between the parties.^[13] While it can address other (arguably peripheral) issues, it can’t solve the dispute single-handedly.

A big problem is that the legal issues raised by the dispute are extremely complex, as some of the most respected international maritime law scholars have themselves said.^[14] While the arguments behind China’s claims receive occasional short shrift,^[15] some eminent international law scholars support them.^[16] This undoubtedly bolsters China’s position.

Further, the dispute’s legal complexity means that it will be extremely difficult for states to agree on a way in which to resolve it, as they cannot be assured that they will be getting a good, or even an agreeable, deal. In other words, no focal point for the negotiations exists.^[17]

This is what motivates China’s refusal to participate in the arbitral panel’s proceedings – proceedings that were initiated by the Philippines with, arguably, one eye on exerting leverage over China to temper its assertive conduct in the South China Sea.

As complexity impedes resolution, it favours the status quo. And the status quo is all going China’s way. Indeed, China has already declared its willingness to establish more ADIZs in the South China Sea in a move that would likely further accelerate tensions and arms build-ups in the region.

Final Remarks

It is therefore becoming increasingly apparent that China’s attitude to international law, at least in the strategic realm, is somewhat different to other states’. This is not surprising when one considers some history: international law embodies rules that were substantially the design of European powers first, and America second. China has been a subject and student of these rules, but never their creator (even if it has ratified some treaties the designs of which it had little to do with). Its level of attachment is therefore understandably lower.

But China’s approach is surprising and noteworthy if we consider it to be just like any other large and powerful state: occasionally willing to support or disobey rules depending on its interests. While this may be substantially true, China is also willing and able to exploit legal grey areas to their fullest strategic potential.

Of course, whether this is the product of conscious design or happenstance remains to be seen, but a worrying pattern is nevertheless discernible.

Finian Cullity is studying Japanese, International Relations and Law at the University of Queensland. He recently completed an extended research project on the interaction between international relations and international law in the South China Sea, and attended the Australian National University’s Asia-Pacific Week conference for young scholars.