Steering the Tide

The 2016 ruling by the Permanent Court of Arbitration (PCA) in favor of the Philippines marked a landmark moment in the geopolitical and legal disputes over the South China Sea (SCS). It declared China’s historical claims via the nine-dash line incompatible with UNCLOS and deemed a multitude of the People’s Republic of China’s (PRC) legal opinions invalid.

China’s outright refusal to participate in the proceedings, coupled with its rejection of the PCA’s jurisdiction and labeling of the ruling as “null and void,” underscores a distinctive approach towards international law. This reaction goes beyond non-compliance – it is emblematic of what can be described as “authoritarian international law”: a calculated use of legal mechanisms to assert dominance while rejecting external accountability. In this post, we delve deeper into these strategies, examining how they fit within the broader framework of authoritarian international law and what they reveal about China’s vision of global order.

Authoritarian International Law and International Law with “Chinese Characteristics”

Authoritarian international law, a concept first developed by Tom Ginsburg, refers to the way in which autocratic states use international law to consolidate power, advance their interests, and erode the global liberal norm order. The concept explains how autocrats manipulate and distortedly use traditional vehicles and instruments of international law to reshape and retool it in their favor.

China has become an expert in authoritarian international law: over the last few decades, the PRC’s approach to international law has gradually developed from a stance as a non-interventionist “Westphalian instrumentalist” to flexible, pragmatic, and opportunistic legal instrumentalism. Since former president Jiang Zemin announced in 1996 that China must become adept at using international law as “a weapon” to defend state interests, the PRC has impressively learned to veil autocratic action under the pretense of legality. In this regard, China has especially recognized the utility of the United Nations – an arena where it has effectively “nothing to lose”, courtesy of its P5 status.

The PRC’s “Four Nos” strategy in the SCS arbitration, comprising (1) no acceptance, (2) no participation, (3) no recognition, and (4) no implementation, can be interpreted as an expression of a distinct approach, which has frequently been labelled as international law with “Chinese characteristics.” Yet, China’s actions in the SCS also possess an innovative element and display the full range of its authoritarian legal playbook.

Strategy 1: Selective Engagement with and Reshaping of UNCLOS

China’s behavior in the SCS arbitration shows it did not entirely reject the UNCLOS framework or seek to create competing norms, but instead even based its arguments on specific UNCLOS provisions. This especially pertains to the island regime under Art. 121 UNCLOS and its importance for the creation of Exclusive Economic Zones (EEZs). China’s legal arguments, presented through position papers and studies by the Chinese Society of International Law, reflect a cherry-picking approach to UNCLOS – heavily citing favorable provisions while dismissing others. Aware of the potential benefits of UNCLOS if interpreted to suit its policy goals, China sees no need to advocate for an alternative competing legal framework.

China’s approach embodies “layering” – introducing new practices within existing frameworks to drive gradual change. For one, it seeks to influence the interpretation practice of UNCLOS provisions while employing realpolitik tactics like artificial island-building. Beyond that, by altering disputed maritime features to qualify as islands under Art. 121 UNCLOS, China aims to legitimize claims to EEZs, advancing its interests within the existing legal system.

China’s handling of UNCLOS can be seen as an example of “arbitrary distortion,” as defined by Polzin, where provisions are misapplied or distorted to negate their intended purpose. In the SCS, China sought not just to distort but to change the facts entirely. The success of China’s layered approach depends less on the outcome of international tribunals and more on persuading other states to adopt its legal views, potentially shaping international customary law. In response to the arbitration, China launched a strong propaganda campaign, gaining support from states like Cambodia, Laos, Thailand, Pakistan, and Russia, who aligned with its legal stance.

Strategy 2: The Juxtaposition of International Law and “Dark Law”

Norms that enable autocratic actions for arbitrary reasons can be categorized as authoritarian international law norms, as they uphold a “survival of the fittest” approach. Such norms, for example those justifying the use of force to restore China’s alleged historic claims, allow China to leverage its state power and military strength. In this context, China’s normative efforts in response to the PCA award warrant closer examination.

In 2021, China enacted the Maritime Police Law (MPL) and Maritime Traffic Safety Law (MTSL) as direct responses to the 2016 arbitral award. Both national security laws use vague and indeterminate terms, such as “maritime areas under Chinese jurisdiction” (Art. 3 MPL), “waters under jurisdiction,” and “jurisdictional seas.” These terms, which do not appear in UNCLOS, reflect China’s intent to regulate all areas within the disputed “9-dash line,” which lacks clear international legal status.

Many provisions of the MPL and MTSL grant broad discretionary powers to Chinese law enforcement agencies. Notably, Art. 22 of the MPL authorizes the Chinese Coast Guard to take “all necessary measures, including the use of weapons” in cases of “illegal infringement on sovereignty” by foreign entities. This creates an interstate norm regulating a “survival of the fittest,” allowing the use of force based on arbitrary reasons at the discretion of Chinese authorities, as it remains unclear when China deems such an infringement to have occurred.

Per definition, this would constitute an authoritarian international law norm. However, as previously outlined, both the MPL and MTSL are national laws. As a solution, Stephen Cody introduces the concept of “dark law” to capture the essence of such norms. It is paramount for international lawyers to widen their perspective and consider such phenomena as complementary concepts to authoritarian international law.

Strategy 3: “Mutual Cooperation” Instead of Third-Party Adjudication

Autocrats tend to prefer bilateral negotiations over third-party adjudication, as the latter carries significant risks for their leadership if court rulings go against them. Bilateral negotiations allow powerful states like China to exploit power asymmetries, making them particularly appealing. This approach enables authoritarian regimes to maintain control and reduce unpredictability in resolving disputes.

Resistance to international courts is not new but has become increasingly prominent. Ordinary resistance, which involves disagreement with specific rulings or the direction of the law (“pushback”), is part of the legal system’s natural evolution. However, China’s response to the SCS arbitration represents extraordinary resistance – targeting not just the contents of the ruling but the institutional framework itself. This form of resistance seeks fundamental changes to the rules governing international adjudication, undermining the authority of international courts.

In the SCS case, China’s resistance extends beyond contesting the content of the arbitral tribunal’s decision. The PRC aims to reshape how disputes under the law of the sea are resolved by diminishing the jurisdictional power of international courts and prioritizing bilateral negotiations. Evidence of this can be found in Chinese officials’ dismissive remarks about the tribunal, referring to it as a “law-abusing tribunal” and its ruling as a “piece of trash paper.”

More decisively, China, alongside Russia, in 2016 issued a “Declaration on the Promotion of International Law” under the auspices of the Shanghai Cooperation Organization (SCO). The Declaration emphasizes consent and good faith, suggesting that third-party adjudication requires explicit, revocable consent at all times – a position that “applies equally to all types and stages of dispute settlement.” The respective Declaration provisions can be seen as almost a direct reaction or response to the SCS arbitration, which was still ongoing at the time and where China’s continued consent was lacking.

That the agreement was struck through the SCO is no mere coincidence, as the SCO has often served for China to test its approach and fittingly has been deemed one of the rising “conflict management actors” in “illiberal peace building.” Many SCO treaties could have been reached bilaterally, but the institutional framework bolsters President Xi Jinping’s “win-win” foreign policy narrative, which deceptively promises mutual cooperation and benefits for all. 

Conclusion

China’s response to the SCS arbitration reveals a calculated and nuanced approach to international law – one that intertwines selective engagement, strategic distortion, and outright defiance to advance political ambitions. Through the presented strategies, China has demonstrated its mastery of authoritarian international law.

Yet, this is not merely a story of China bending the rules to its will; it is also a cautionary tale. The SCS serves as a vivid example of how international law can be both a tool and a battleground – a space where competing visions of global order collide. For scholars and practitioners, the task is not only to understand these dynamics but to confront the broader implications of authoritarian legal strategies, which challenge the principles of accountability and equity at the heart of the liberal international system. In this ongoing contest, the real question is not just about the strength of the rules but the resilience of the values they embody.