Lucas Louzada Silva; Arthur Roberto Capella Giannattasio
Rev. Carta Inter., Belo Horizonte, v. 20, n. 1, e1548, 2025
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International Law in Times of
Transition: Contestation of Legalities
and Reconceptualization in the South
China Sea Case
1
Direito internacional em tempos de
transição: Contestação de legalidades
e Reconceitualização no caso do
Mar do Sul da China
Derecho internacional en tiempos de
transición: Desafío de legalidades
y reconceptualización en el caso del
Mar Meridional de China
DOI: 10.21530/ci.v20n1.2025.1548
Lucas Louzada Silva
2
Arthur Roberto Capella Giannattasio
3
Abstract
Chinese claims over the South China Sea, a decisive issue in the
international scenario of the 21st century, are perceived by some
IR scholars as one of the country’s threats to international peace
1 O presente trabalho foi realizado com apoio da Fundação de Amparo à Pesquisa
do Estado de São Paulo (FAPESP), Brasil. Processo nº 2020/04136-8, e com
apoio da Coordenação de Aperfeiçoamento de Pessoal de Nível Superior – Brasil
(CAPES) – Código de Financiamento 001, Processo n. 88887.829919/2023-00.
2 Master Candidate in International Relations at the International Relations Institute
– University of São Paulo. Bachelor in International Relations – International
Relations Institute – University of São Paulo (IRI/USP). (lucaslouzadasv@usp.br).
ORCID: https://orcid.org/0000-0002-2352-0282.
Artigo submetido em 26/12/2024 e aprovado em 20/06/2025.
3 PhD in International Law. Full-time Professor at the IRI/USP. PhD in International
Law – University of São Paulo Law School (FD/USP). (arthur@usp.br).
ORCID: https://orcid.org/0000-0003-3273-4052.
ASSOCIAÇÃO BRASILEIRA DE
RELAÇÕES INTERNACIONAIS
Copyright:
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License, which permits
unrestricted use,
distribution, and
reproduction in any
medium, provided that
the original author and
source are credited.
• Este é um artigo
publicado em acesso aberto
e distribuído sob os termos
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originais sejam creditados.
ISSN 2526-9038
International Law in Times of Transition: Contestation of Legalities and Reconceptualization [...]
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and security. The analysis of official documents published by China’s Ministry of Foreign
Affairs to justify the country’s position on the SCS, however, revealed a sophisticated legal
strategy that challenges this view. By focusing on cartographic, historical, and linguistic
evidence to validate its claims, China seems to pursue an international law-based trust-
building strategy through an alternative concept of legality.
Keywords: South China Sea, South China Sea Islands, Legal Arguments, Trust-Building
Strategy, Contestation Of Legalities.
Resumo
As reivindicações chinesas sobre o Mar do Sul da China, decisivas para a conjuntura
internacional do século XXI, são vistas por alguns estudiosos de RI como uma das ameaças
do país à paz e segurança internacionais. A análise de documentos oficiais do Ministério
das Relações Exteriores para justificar a posição chinesa sobre o MSC, porém, revelou uma
estratégia jurídica sofisticada que contestaria esta visão. Ao se concentrar em evidências
cartográficas, históricas e linguísticas para validar suas reivindicações, a China parece
adotar uma estratégia de construção de confiança baseada no direito internacional por
meio de um conceito alternativo de legalidade.
Palavras-chave: Mar do Sul da China, Ilhas do Mar do Sul da China, Argumentos Legais,
Estratégia de Construção de Confiança, Contestação de Legalidades.
Resumen
Las reivindicaciones chinas sobre el Mar de China Meridional, decisivas en la realidad
internacional del siglo XXI, son vistas por algunos expertos en RI como una de las amenazas
del país a la paz y seguridad internacionales. Sin embargo, el análisis de documentos
oficiales del Ministerio de Asuntos Exteriores para justificar la posición china sobre el MCM
reveló una sofisticada estrategia jurídica que disputa esta visión Al centrarse en pruebas
cartográficas, históricas y lingüísticas para validar sus reivindicaciones, China parece
adoptar una estrategia de construcción de confianza basada en el derecho internacional
mediante un concepto alternativo de legalidad.
Palabras-clave: Mar De China Meridional, Islas del Mar de China Meridional, Argumentos
Jurídicos, Estrategia de Construcción de Confianza, Desafío de Legalidades.
Lucas Louzada Silva; Arthur Roberto Capella Giannattasio
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1. Introduction
Published anonymously in 1609, “The Free Sea” (Mare liberum) is the famous
monograph written by the Dutch author Hugo Grotius (1583-1645) — whose
authorship was claimed in 1614 (Vervliet 2009). This small political pamphlet
was part of a larger legal opinion prepared in 1604-1606 for the government of
the Dutch United Provinces — the “On the Law of Prize and Booty” (De iure
praedae), not published until 1868 (Vervliet 2009) — and argued, in brief, a
“rule of that part of the law of nations which they call primary”, for him, a rule
“self-evident and immutable, to wit: every nation is free to travel to every other
nation and to trade with it” (Grotius 2009, 25).
The background around Grotius’ pamphlet indicates some political and
economic foundations of the legal argument in his monograph towards a positive
value of a free sea (mare liberum) to the detriment of a closed sea (mare clausum)
(Casella 2014). If such a position — for which his monograph cannot be overlooked
— is at the basis of contemporary international legal regulation of the seas
(Casella 2012), one should not ignore that his argument was developed then to
build confidence in the legality of ‘the right which the Dutch have to carry on
Indian trade” (Grotius 2009, LXVI) — as the subtitle of the text itself emphasizes.
Grotius tried to reconceptualize some legal and political concepts in force at
that time, with the purpose to find international law-based solutions for concrete
issues faced by his country in international affairs by the time he wrote (Kaltenborn
1847; Preuß 1918). As a legal scholar conscious about his own academic role
in a specific transitional moment of international law, he conducted a struggle
through words to re-imagine, politicize, and transform international relations
and its legal framework (Bernstorff and Dann 2019, 5).
Four centuries after the first publication of Mare liberum, contemporary
Chinese government has recently presented and reaffirmed its claims over the
South China Sea (SCS) Islands (hereinafter Nanhai Zhudao) as belonging to the
traditional sphere of influence from China over adjacent sea waters (Odgaard
2022). While recent publications regard such a movement as a threat to current
international law and international relations (Odom 2012; Malik 2013), we
understand that, by moving away from the prejudice informed by such “China
threat theories” (Deng 2008), it is possible to further analyze and understand
the approach of the Chinese government towards Nanhai Zhudao in accordance
with different — and more academic — terms.
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Just as occurred by the time in which Grotius’ Mare liberum was written,
international law and international relations are again facing a transitional moment
in which the foundations of legality itself are being challenged, discussed and
under dispute in their own legal terms (Bernstorff and Dann 2019, 11). In this
situation in which legal concepts are being mobilized and reconceptualized, the
claim over Nanhai Zhudao seems to be part of a bigger post-Western agenda of
contesting the prominence of European foundations of international order — not
by means of military force, but by a different strategy: suggesting and creating
new meanings of legality beyond European civilizational patterns (Abdenur
2016; Stuenkel 2015; 2016).
It is thus within this broad context of engaging in a re-imagination of the
legal foundations of international order and in the re-definition of the limits of
legality that this paper proposes to examine official statements from the Chinese
government on the SCS. The idea is to broaden the debate concerning this
discussion and to highlight that, rather than defending or impairing the legal
validity of Chinese claims over Nanhai Zhudao, it is important to understand
that the strategy adopted by China is based on a different concept of legality.
We argue that, by focusing on cartographic, historical, and linguistic evidence,
China resorts to another civilizational legal paradigm to validate its claim. We
understand that China is following the idea of rule-based international order
outside the traditional international legal framework for regulating the seas
derived from the European foundations laid down after the publication of Mare
liberum. However, we also understand that such an approach is more complex
than a simple violation of international law or a mere excuse to resort to the
use of force to settle disputes — as done by European imperial powers in the
past. Indeed, this paper argues that China is mobilizing an ideational discourse
in its official position papers to deal with the issue within legal terms, in order
to reconceptualize the international law of the seas — and not to breach it.
By emphasizing this ideational foundation of Chinese arguments over Nanhai
Zhudao, we understand that it would be possible in future research to shed light
on parts of PRC’s agenda in the SCS.
This paper is thus divided into four parts. In the first section (2.), the PRC’s
papers will be presented with an explanation of the analytic key to interpret
and classify the main arguments and grounding of Chinese position. The second
session (3.) presents the three documents analyzed (3.1) and systematizes the
ideational discourses of Chinese strategy on its claims to Nanhai Zhudao (3.2)
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in three different narratives diffused in the beginning of the 20th century: history
(3.2.1), literature and naming (3.2.2), and cartography (3.2.3). The third section
(4.) argues that the ideational foundations of Chinese claims to Nanhai Zhudao,
on the one hand, can explain perceptions of threat by neighboring countries and
key players (such as the United States), but, on the other hand, can also clarify
the civilizational foundations of the terms in accordance with PRC’s present
intentions and commitments in the region. With this, the section concludes
by arguing that Chinese intentions in the SCS should be further analyzed and
continuously monitored for a more precise and academic overview, instead of
being regarded in accordance with a bias based on “China threat theories”.
2. Materials and Methods
The Ministry of Foreign Affairs of the PRC have issued eight documents from
2014 to 2022 concerning Chinese interests in and claims to Nanhai Zhudao.4
There are two main documents, identified as position papers, in which Chinese
legal arguments and historical claims become evident: they are the Position Paper
of the Government of the People’s Republic of China on the Matter of Jurisdiction
in the South China Sea Arbitration Initiated by the Republic of the Philippines,
from 7 December 2014, and China Adheres to the Position of Settling Through
Negotiation the Relevant Disputes Between China and the Philippines in the South
China Sea, from 13 July 2016.
4 The documents were found through a Chinese Ministry of Foreign Affairs’ portal, called The South China
Sea Issue, in the section “Position Paper”. The portal is available at: <https://www.fmprc.gov.cn/nanhai/
eng/snhwtlcwj_1/>. The documents analyzed were: (i) Position Paper of the Government of the People's
Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic
of the Philippines; (ii) Position Paper of the Government of the People's Republic of China on the Matter of
Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines; (iii) Statement
of the Ministry of Foreign Affairs of the People's Republic of China on the Award on Jurisdiction and
Admissibility of the South China Sea Arbitration by the Arbitral Tribunal Established at the Request of the
Republic of the Philippines; (iv) Statement of the Ministry of Foreign Affairs of the People's Republic of China
on Settling Disputes Between China and the Philippines in the South China Sea Through Bilateral Negotiation;
(v) Statement of the Ministry of Foreign Affairs of the People's Republic of China on the Award of 12 July
2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the Republic
of the Philippines; (vi) Statement of the Government of the People's Republic of China on China's Territorial
Sovereignty and Maritime Rights and Interests in the South China Sea; (vii) China Adheres to the Position of
Settling Through Negotiation the Relevant Disputes Between China and the Philippines in the South China
Sea; and (viii) China Stays Committed to Peace, Stability and Order in The South China Sea.
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The analysis focuses on these two main documents, as they better illustrate
the intentions and arguments of the Chinese government about Nanhai Zhudao,
alongside with the Communiqué on 23 March 2022 in response of a US study
(Limits in the Seas No. 150), in which the SCS Arbitration Award is described as
a case of “judicial excellence”, statement that contradicts China’s position that
the document is “null and void”. The three documents are going to be briefly
covered in the next section before we discuss the ideational foundations of
Chinese claims to Nanhai Zhudao.
The main legal arguments presented in the official documents published by
the Chinese government were depicted in accordance with the following table:
Table 1. Structure of the Analytic Key
Argument Type Subargument Grounding Theme IL Source Document Norm EiF – CN EiF – INTL
One of the arguments will be presented in detail to illustrate the method
adopted and to indicate how the official discourse of the Chinese government
is embedded in ideational elements. By identifying them, a different strategy
undertaken by the Chinese government is revealed: one that does not necessarily
focus on the dispute itself, but on the legal recognition of its historical position
over Nanhai Zhudao.
By making the distinction between “Procedural” and “Substantive” type
arguments, the analytic key enforces the idea that the position of the Chinese
government oscillates between two different axis: one, based mainly on the
juridical process itself, attempts to show that the arbitration lacks jurisdiction
and that its Award is “null and void”; the other, however, is more directly tied
to claim from the Chinese government itself, in a way that consolidates and
intends to present a legal justification of the historical position of the country
over the SCS. Considering the purposes of this paper, the argument indicated in
this example will be one of “Substantive” type.
Argument. Despite being mainly addressed to question and criticize the Filipino
initiation of the arbitration, the 2014 Position Paper also contains arguments related
to the claims of the Chinese government over Nanhai Zhudao, such as: “China
has indisputable sovereignty over the South China Sea Islands (the Dongsha
Islands, the Xisha Islands, the Zhongsha Islands and the Nansha Islands) and
the adjacent waters” (China 2014, 1).
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Type. The argument, in which it is stated the “indisputable” character of
China’s sovereignty over the SCS Islands, is defined as a “Substantive” one in
terms of International Law, since it draws from the essence of the issue, that is,
sovereignty over a group of islands.
Subargument. A subargument is a complementary way to understand the
position presented by the Chinese government in its official statement. In this
sense, the 2014 Position Paper did not present subarguments; however, the 2016
Position Paper, for instance, indicates that “Nanhai Zhudao are China’s inherited
territory” (China, 2016), an argument which will be further discussed.
Grounding. The foundations of the argument were grounded on subjects
such as (i) millennial activity in the region and post-war consolidation of claims
(historical); (ii) official maps (cartographic); and (iii) state acts and declarations
(legal). The exhibition of the argument will focus on the latter type, since it
fulfills all the columns of the table, and more particularly on the grounding that
follows, due to its relation to Chinese interests and intentions on the SCS:
Both the Declaration of the Government of the People’s Republic of China
on the Territorial Sea of 1958 and the Law of the People’s Republic of
China on the Territorial Sea and the Contiguous Zone of 1992 expressly
provide that the territory of the People’s Republic of China includes, among
others, the Dongsha Islands, the Xisha Islands, the Zhongsha Islands and
the Nansha Islands. (China 2014, 1)
Theme. The grounding, which resorts to RPC’s documents that have stated
Chinese sovereignty over Nanhai Zhudao, is, as already mentioned, a legal one.
International Law Source. Based on the International Court of Justice (ICJ)’s
Statute definitions of sources of International Law (Art. 38) the grounding would
not apply, since it does not fit into the definitions from the Court. However, there
is a debate on whether state practice could be seen as one legitimate source of
international law for custom-formation (Kammerhofer 2004).
Document. The documents mobilized by the argument were the Declaration
of the Government of the People’s Republic of China on the Territorial Sea of
1958 and the Law of the People’s Republic of China on the Territorial Sea and the
Contiguous Zone of 1992. These two documents, alongside with the Exclusive
Economic Zone and Continental Shelf Act of 26 June 1998, are the cornerstone
of Chinese legal positions on the sovereignty of the SCS Islands, being of utmost
importance to the understanding of the country’s intentions.
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Norm. The provisions cited in the Paper derive, respectively, from the first
paragraph of the 1958 Declaration and Article 2 of the Law of 1992, even without
an open mention from Chinese argumentation.
Entry into Force – China (EiF – CN). Date in which the norm has started to
produce effects domestically. For the documents mentioned above, the dates are
9 September 1958 and 25 February 1992.
Entry into Force – International (EiF – INTL). Date in which the norm has
started to produce effects at the international level. Since both documents here
indicated were promulgated by the Government of the PRC, it is not possible to
say when they entered into force at the international level.
3. Claims over Nanhai Zhudao in Official Documents from the
Chinese Government
3.1 The Three Statements of China’s Ministry of Foreign Affairs
From the eight documents issued by China’s Ministry of Foreign Affairs,
three of them are relevant to this paper: the 2014 and the 2016 Position Paper,
and the 2022 Communiqué. The first two summarize the position of the Chinese
government on the SCS disputes — mainly the judgement by the Permanent
Court of Arbitration (PCA) and the legal foundation of its position on historical,
cartographic, and juridical reasons —, while the latter contextualizes current
legal disagreements between the United States and the PRC over the region.
The 2014 Position Paper is a central legal piece to understand the perspective
from the Chinese government regarding the dispute with the Philippines and
it depicts Beijing’s position concerning the main legal points that surround
the Arbitration initiated in 2013 by Manila. The arguments therein are mostly
structured on procedural points based on the 1982 United Nations Convention
on the Law of the Sea (UNCLOS), arguing that the dispute could not be initiated
because the Court had no jurisdiction over the matter, insofar as it dealt with
territorial boundaries on the region. Although a procedural argument, it resorts
to history to challenge the competence of the PCA.
Unlike the previous document, the 2016 Position Paper does not intend to
argument that the PCA had no jurisdiction over the matter. Published shortly
after the Court’s Award, it presents historic arguments which would pave the
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legal foundations of the Chinese claims over Nanhai Zhudao. Despite stating that
the Award is “null and void”, this official document attempts to certify China’s
sovereignty over the region through historical, legal, diplomatic, cartographic,
and linguistic evidence of the country’s continued activity in the SCS. The
arguments therein are the main source of the ideational dimension of these
claims and illustrate Beijing’s intentions over Nanhai Zhudao.
Finally, the 2022 Communiqué was a response from the Chinese government
to the study published on 12 January 2022 by the US Department of State (Limits
in the Seas No. 150), whereby US authorities consider the 2016 Award as a
case of “judicial excellence”. According to the 2016 Position Paper, the Chinese
government considers the Award “null and void” and, for this reason, besides
criticizing US political — and military — agenda towards the region, the 2022
Communiqué restates the foundations presented by the Chinese government to
affirm its sovereignty over Nanhai Zhudao.
3.2 Chinese Ideational Discourse in the Official Documents
The 2016 Position Paper presents one of the most emblematic arguments
at the basis of the claim from the Chinese government over the SCS and its
islands: “Nanhai Zhudao are China’s inherited territory” – which is classified, in
accordance to the analytic key above indicated, as an argument of “Substantive”
type, since it does not deal with the procedural matter of the dispute, but with
the dispute over the islands’ sovereignty. This historical approach was first
introduced in China’s Law on the Exclusive Economic Zone and the Continental
Shelf — promulgated on 26 June 1998, in which it is stated that “the provisions
of this Law shall not affect the historic rights enjoyed by the People’s Republic
of China” (Art. 14) (Zou 2001).
The core of this argument can be understood as indicating that the country
had acquired rights over SCS and its islands a long time ago, at a past (although
imprecise or unclear) moment, due to several activities engaged over the area
millennia ago. To put it differently, the argument presented by the Chinese
government aims to sustain that the country has acquired (what international law
calls nowadays as) sovereignty over this region even before the legal foundations
of current international law of the seas was established by European legal
scholars in the 17th-18th centuries or the UNCLOS in the 20th century. For this
reason, the document tries to confirm this position by depicting different kinds
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of historical foundations to sustain the legality of the claim from the Chinese
government over this territory.
3.2.1 History
The historical argument of effective occupation is presented as follows:
China is the first to have discovered, named, and explored and exploited
Nanhai Zhudao and relevant waters, and the first to have continuously,
peacefully and effectively exercised sovereignty and jurisdiction over them,
thus establishing sovereignty over Nanhai Zhudao and the relevant rights
and interests in the South China Sea (China 2016, 2)
The subsidiary argument consists of four records of international recognition
of Chinese occupation of the islands by other countries: the United Kingdom,
France, Japan, and the United States.
The first record is a publication from the China Sea Directory in 1868 issued
by the Lord Commissioners of the Admiralty of the UK. In this document, it
was observed that Hainan fishermen were found upon Zhenghe Qunjiao of
Nansha Qundao (Spratly Islands) and that fishermen upon Itu-Aba were “more
comfortably established than the others” (China 2016, 3). The second record is
a publication from the French magazine Le Monde Colonial Illustré, dating from
September 1933, in which it states that “Only Chinese people lived on the nine
islands of Nansha Qundao and that there were no people from other countries”.
It is also argued that the document also described some of the artifacts found
over some of the islands, such as worship stands, thatched cottages and wells
(China 2016, 3).
Finally, the 2016 Paper mentions a Japanese novel, Boufuu No Shima (Stormy
Island), published in 1940, and The Asiatic Pilot, Vol IV, published by the
US Hydrographic Office in 1925, as documents recording Chinese fishermen
living and working on Nansha Qundao — the main group of islands in the SCS
(China 2016, 3).
By mentioning these records, the 2016 Paper tries to present historical and
literary evidence of an international recognition of a long-time series of China’s
activities and sovereignty over Nanhai Zhudao. It is also an important recollection
of memory, which is in accordance with a certain idea of “imagined community”,
since it portrays these fishermen as belonging and pertaining to a Chinese idea
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of the region — a value probably not disseminated at the time of the records
(Anderson 1983; Hayton 2019).
3.2.2 Literature and Naming
The 2016 Paper also resorts to literature and linguistics. Indeed, by showing
that China has named the islands in different periods of history, and that there
are registered books on the naming systems, it tries to consolidate with additional
evidence the foundations of the claim from the Chinese government over the
region. There is, indeed, a quasi-naming-battle regarding islands in the SCS: the
Spratly Islands, for example, are named Kalayaan Island Group by the Philippines
and Nansha Qundao by the PRC.
The argument about the development of a naming system from Chinese
fishermen is presented as follows:
The Chinese fishermen have developed a relatively fixed naming system for
the various components of Nanhai Zhudao in the long process of exploration
and exploitation of the South China Sea. (...) Geng Lu Bu (Manual of Sea
Routes), a kind of navigation guidebook for Chinese fishermen’s journeys
between the coastal regions of China’s mainland and Nanhai Zhudao,
came into being and circulation in the Ming and Qing Dynasties, and has
been handed down in various editions and versions of handwritten copies
and is still in use even today. It shows that the Chinese people lived and
carried out production activities on, and how they named Nanhai Zhudao.
Geng Lu Bu records names for at least 70 islands, reefs, shoals and cays
of Nansha Qundao (China 2016, 2).
In this sense, the document mentions historical literature chronicles from
different periods of Chinese history that record the “activities of Chinese people
in the South China Sea”. The examples date back to the Eastern Han Dynasty (25-
220), passing through the Song (960-1279) and the Ming (1368-1644) Dynasties,
and end up into the Qing Dynasty (1644-1911). Furthermore, both 2014 and 2016
Papers mention that “The activities of the Chinese people in the South China Sea
date back to over 2,000 years ago” (China 2014, 1; China 2016, 1). The document
has also mentioned the adoption, by western navigators, through navigation
guidebooks and charts published in the 19th and 20th century, of names given
by Chinese people to Nanhai Zhudao (China 2014, 2).
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3.2.3 Cartography
Maps are also regarded as an important part of the construction of the idea
of nation and belonging of the SCS Islands to the PRC (Hayton 2019). Resorting
to history, internationally recognized maps and administrative records, the 2016
Paper intends to reveal that China has exercised sovereignty over Nanhai Zhudao
for a long period of time. In this sense, it makes a recollection of several official
maps, dating back to 1755, in which Nanhai Zhudao is marked as Chinese territory
(China 2016, 3), and also mentions internationally recognized maps, such as
the Standard World Atlas from the Japanese Government in 1951 (China 2016,
4) and the Global Sea-Level Observing System Implementation Plan 1985-1990
from the 14th Assembly of the Intergovernmental Oceanographic Commission of
the United Nations Educational, Scientific and Cultural Organization (Unesco)
(China 2016, 5).
The discussion about a map-based argument to sustain the claim from the
Chinese government over the SCS requires to briefly recall the debate about the
nine-dash line — also known as the U-shaped line. Dating back to the first half
of the 20th century5, the nine-dash line argument — sometimes misinterpreted
as an attempt of the PRC to incorporate the most part of the South China Sea,
including its water column — is a significant example of this symbolic construction
of space belonging to a community. There are important records of Chinese
scholars attempting to legally justify the existence of the nine-dash line based
on the notion of historic rights (Jinming and Dexia 2003; Zou and Liu 2015). In
this sense, by raising cartography as the basis of China’s claim over the region,
the 2016 Paper establishes a dialogue with the idea of the nine-dash-line:
China’s Committee for the Examination for the Land and Sea Maps, which
was composed of representatives of the Ministry of Foreign Affairs, Ministry
of the Interior, Ministry of the Navy and other institutions, reviewed and
approved the names of individual islands, reefs, banks and shoals of
Nanhai Zhudao, compiled and published Zhong Guo Nan Hai Ge Dao Yu
Tu (Map of the South China Sea Islands of China) in 1935 (China 2016, 4).
5 As a recent renovation of Chinese position vis-à-vis SCS, the Ministry of Natural Resources published, on
August 28, 2023, the “new standard” national map with a ten dash-line that repeats the nine-dash claim and
includes claims to the east of the island of Taiwan and to India’s north (Nguyen 2024). For more information,
see also Ma, Zhenhuan. 2023. “2023 edition of national map released”. China Daily. <https://www.chinadaily.
com.cn/a/202308/28/WS64ec91c2a31035260b81ea5b.html>.
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The Brief Account of the Geography of the South China Sea from 1947
follows the 1935 Map, in which it resumes the Kuomintang’s efforts to establish
a historical and solid ground on which the government will claim sovereignty
and denounce foreign occupation:
On the basis of a new round of geographical survey of Nanhai Zhudao,
the Chinese government commissioned in 1947 the compilation of Nan
Hai Zhu Dao Di Li Zhi Lüe (A Brief Account of the Geography of the South
China Sea Islands), reviewed and approved Nan Hai Zhu Dao Xin Jiu Ming
Cheng Dui Zhao Biao (Comparison Table on the Old and New Names of the
South China Sea Islands), and drew Nan Hai Zhu Dao Wei Zhi Tu (Location
Map of the South China Sea Islands) on which the dotted line is marked.
In February 1948, the Chinese government officially published Zhong Hua
Min Guo Xing Zheng Qu Yu Tu (Map of the Administrative Districts of the
Republic of China) including Nan Hai Zhu Dao Wei Zhi Tu (Location Map
of the South China Sea Islands) (China 2016, 4).
4. Identity and Menace
Considered the basis of contemporary international legal regulation of the seas
(Casella 2012), Mare liberum was written and published in a particular moment
of the Netherlands’ history: the struggle for political independence from Spain
(Casella 2014, 334-5) — at that time, unified with Portugal under the Iberian
Union (1580-1640) (Muñoz-Arraco 1998). In this sense, the movement towards
political emancipation included armed conflicts against Spain and the seizure
of former Portuguese colonial territories overseas (Megiani 2016), as means to
dismantle the Spanish Empire (Rocamora 1993) and to access material resources
necessary to consolidate its independence (Casella 2014). A twelve-year truce
among the parties was celebrated in 1609 — which might explain the publication
of the monograph (Vervliet 2009), but a final agreement for independence was
reached only in 1648 by the Münster Treaty (Neuhaus 1991), alongside the broad
European framework of political disputes at that time (Litschauer and Jambor
1974).
The background around Grotius’ pamphlet unravels some political and
economic foundations of the legal argument he constructed in his monograph
towards a positive value of a free sea (mare liberum) to the detriment of a
closed sea (mare clausum) (Casella 2014). Rather than simply seeking to justify
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by law Dutch’s movement towards a better political and economic placement
in 17th century European disputes (Casella 2014), the legal defense of waging
war against “those who violate that most undoubted law of nature, the right to
carry on Indian trade” (Grotius 2009, 155) had also a civilizational foundation.
After all, his work sought to build confidence in the legality of “the right which
the Dutch have to carry on Indian trade” (Grotius 2009, LXVI) — as the subtitle
of the text itself emphasizes.
Indeed, Grotius sustained that such a situation entitled this nation to “fight
boldly, not only for your own liberty, but for that of the human race” (Grotius
2009, 151). However, the justification of the simultaneous use of force and of
international law (Onuma 2016) to enable navigation through the maritime trade
routes with the Indian subcontinent (Embree and Wilhelm 1990) and Southeast
Asia (Villiers 1993) had complementary goals: (i) to divide these territories
among European imperial powers (France, Netherlands, Portugal, Spain and
the United Kingdom) (Alexandrowicz 2017), (ii) to dismantle the long standing
Chinese, Hindu and Islamic influences over these territories (Alexandrowicz
2017; Onuma 2016), and (iii) to give to these European powers a permanent and
stable access to maritime routes (Alexandrowicz 2017) — whereby, as Grotius
himself did recognize, “the Arabs and the Chinese have traded continuously
with the Indians through several centuries” (Grotius 2009, 141).
Mare liberum meant thus more than a legal justification to ensure among
European powers, even by the use of force, the freedom of seas for “the common
benefit of mankind” (Grotius 2009, 155). It was also a justification, based on
European civilizational tradition, to open the seas for the legal, political, economic
and military influence of European powers over territories and over long known
trading routes. These included the ones under the sphere of influence of China
(Gernet 1985), which was put under the umbrella of European international
legal order (Alexandrowicz 2017).
The arguments drawn from China’s official papers on the SCS disputes are
mainly defined as ideational and subjective: they portray claims over Nanhai
Zhudao based on a pre-existing Chinese’s concept of sovereignty — that is,
spheres of influence — over the islands due to historical, literary, and cartographic
evidence (Odgaard 2022) — a region, by the way, regarded as such in Western
literature at least since the end of 13th century, after the first publication of
Marco Polo’s famous book Il Milione (Polo 2003).
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Be as it may, it is important to emphasize that these arguments are not
inadequate or illegitimate to international law. Rather, it is the contrary: the
analysis above shows that it is indeed an organized effort of compiling textual
evidence, record of international recognition of Chinese history in the SCS, and
maps. In this sense, the PRC presents to the international community a signal
of its commitment to international norms and institutions. If Beijing’s refusal
to accept the 2016 Arbitral Award seems to be regarded as a bad signal, yet it is
important to acknowledge the government’s efforts to address and debate the
issue in legal terms — as it is shown in the Chinese Society of International Law
(2018) extensive critical study on the Award. Furthermore, the ideational value
of its addressing does not necessarily indicate it lacks legal basis and legitimacy,
or that it intends to violate the international legal regime for the seas.
More importantly, though, is the analysis of the Chinese discourse in its
ideational agenda: China mobilizes the idea of the “Chinese people” and of its
longstanding activities in Nanhai Zhudao, not only to legitimize its claims, but
mainly to consolidate narratives of the islands’ belonging to the country and its
invaluable importance to Chinese history.
The notion of a Chinese maritime geobody in the SCS enlightens the process
in which space is being portrayed and built to serve a national discourse. The
interchangeable notion of identity and geobody politics in Ataka (2016) clarifies
the idea that the SCS disputes do not reside only on geopolitical terms: strategic
and energetical interests aside, there is an important subjective dimension in
the way China addresses its policy in the region.
It could be argued, then, that the SCS has a significant role in consolidating
Chinese national discourse, not only due to its relevance in 21st century
international politics but to the sense of belonging of these territories — most of
them inhabited — to an idea of the Chinese people and its history. The identity
in construction vis-à-vis the SCS, however, does not need an antagonist to stand
still (Lebow 2008), since it resorts to evidence and recollection of facts of its
own history.
Nevertheless, Chinese attempts to engage in this construction of a maritime
geobody in the SCS do not date from millennia as its activities in the region.
The modern origins of the Chinese claims to the SCS can be traced back to
the beginning of the 20th century (Hayton 2019), revealing that the narrative
constructed also had a programmatic and instrumental orientation, not merely
a natural tendency towards the de jure control of Nanhai Zhudao. In the context
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of rising nationalism amidst foreign powers’ invasions and interferences in the
Middle Kingdom, the nature of the claims can be traced:
China’s maritime geobody, a collective psychological attachment to offshore
islands, emerged through several stages during the early twentieth century.
In early 1909 there was almost no interest in the fate of these faraway
features among either officials or the general population. Forty years later,
officials and agitators alike could declare them to be an intrinsic part of
the national corpus. Part of this process was a consequence of imperial
China’s transition into a new world of theoretically equal nation-states, but
part of it was the result of decisions taken by particular elites to use the
new nationalism to legitimize their political positions (Hayton 2019, 164)
So-called “China threat theories” — more xenophobic narratives than proper
scientific theories — can be perceived as a simplistic and inaccurate account of
China’s position over the issue. While preoccupied in emphasizing perceptions
of threat by neighboring countries and by Western powers — such as the United
States, they do not pay proper attention to the terms of the legality invoked and
mobilized by China in its claims over Nanhai Zhudao.
China’s rapid development has been widely studied in IR and Political Science
fields, and especially among U.S. scholars, it has been regarded with suspicion
and reluctance. Central to this debate are the books written by professors John
J. Mearsheimer (2001) and Samuel Huntington (1996). Huntington, a former
professor at Harvard University, looks at distinct civilizations through the optic
of a “cultural realism” and the possibilities of their confrontation. In his view,
Chinese Confucianism is the single main threat to Western civilization — that
is, the liberal democracy as epitomized in Western Europe and the U.S. From a
different perspective, focused on power politics, Mearsheimer, a lecturer at the
University of Chicago, dedicates one chapter of his account of offensive realism
to analyze China’s rise and the country’s inevitability to follow the same path
as other great powers, that is, to seek regional hegemony (Mearsheimer 2001,
361). Huntington and Mearsheimer have settled the basis for a large production
in IR academia on China’s rise and its threat to the Pax Americana.
Yong Deng (2008) identifies three Chinese versions of the genesis of the
“China threat theories”, situated in different time periods and locations, but
recognizes an official version commonly accepted by Chinese analysts that traces
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the beginning of the China threat theories to the end of 1992.6 The explanation
would be “a confluence of factors” (Deng 2008, 104) whereby Deng Xiaoping’s
“Southern Tour” led to the economic rise of a unified China — which began
to be feared, and to the halt of a prognostic of a “China collapse”. As another
landmark for the factors, Deng (2008) cites the passing, in February of that
year, of the Law of the People’s Republic of China on the Territorial Sea and the
Contiguous Zone of 1992, cornerstone in Chinese legal address of its claims to
Nanhai Zhudao (Deng 2008, 105).
Khalid Al-Rodhan (2007) classifies the claims from U.S journalists, strategic
thinkers, and scholars as “speculative at best” (Al-Rhodan 2007, 63), drawing
attention to the possibility of the “China threat” being a self-fulfilling prophecy,
as its thesis influences policy makers in Washington to make decisions that could
lead to increasing tensions.
Andrej Krickovic and Chang Zhang (2020, 221) offer a different analysis of the
Chinese rise through the lenses of status-seeking theory and a comparison with
Russia, standing against the idea that the country’s ascent will lead inevitably
to conflict. The authors argue that Russia’s aggressiveness can be explained
by the idea of a declining power, losing prestige and position in international
politics. China, on the other side, would have much to lose in a confrontational
stance against the United States, and, therefore, would be more cautious and
diplomatic to solve tensions.
Regarding Chinese activities in the SCS, there is a literature — mainly
authored by Western scholars — analyzing China’s intentions and strategies in
the region and using terms as “assertive” (Fravel 2011; Holmes and Yoshihara
2009) to refer to the country’s actions in the SCS disputes and by picturing it
as a cornerstone of U.S.-China’s rivalry in the 21st century (Buzsinksy 2012).
However, Chinese actions concerning its claims over the SCS do not seem to
meet these “China threat theories”. Rather, it seems that the authors who defend
this idea do not try to take the legal arguments of the country seriously and
6 The first one is attributed to an August 1990 article by a professor at Japan’s National Defense Academy and
was addressed in a Beijing Review article (Deng 2008, 104) from 1997. Another is traced back to Xu Xin,
former president of the China Institute for International Strategic Studies and former deputy chief of the
People’s Liberation Army (PLA). Xu was at a symposium hosted by Heritage Foundation, in Washington, DC
on August 25, 1992 when a U.S. Assistant Secretary of Defense alleged China was responsible for sparking
an arms race in the Asia-Pacific region, with the notion of “threat” being amplified in the following month
by the former U.S. ambassador to China, James Lilley, in Hong Kong, where he criticized China’s military
expansion (Deng 2008, 104).
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simply use past European behavior towards the law of the seas (territories and
maritime trade routes) to understand the position of the Chinese government
over SCS. It is thus important to understand PRC’s actions and interests without
such pre-established biases in order to evaluate the terms of the legality invoked
and mobilized by the country in its official documents.
In other words, “China threat theories” bias the analyses, as they try to
project European legal, political, economic and military past experiences over
the strategy for now undertaken by the Chinese government over the SCS. By
doing that, they hinder the possibility of understanding a much deeper and more
important movement: the ideational contestation of the European foundations of
international law of the seas — without violating international law. To a certain
extent, and even though with differences, the Chinese government seems to
follow a similar strategy undertaken by Grotius in his Mare liberum.
In this sense, while European civilizational discourse seemed to have resorted
to legal discourse to justify the use of force to support the seizure by former
European imperial powers of territories and maritime trading routes under
Chinese, Indian and Islamic influences, Chinese government seems — at least
for now — to be moving away from such an approach. Indeed, after learning
the traditional international legal discourse inherited from European expansion,
the country appears to be developing legal arguments in other terms (historic
rights) and stating its position through international legal discourse, in order to
affirm new legal foundations for international law.
The analysis above suggests that, by invoking non-European identities to
guide its legal claims over Nanhai Zhudao, the Chinese government is proposing,
not the violation of international law, but its reconceptualization on another
civilization paradigm, without departing from the idea of a rule-based international
order. If there is a threat, it seems not to be directed against a specific neighbor or
country, neither via the use of force, nor via the violation of other international
legal standards; rather, it appears to be an ideational contestation of European
legality and its foundations of international law.
5. Conclusion
The present article intended to depict China’s arguments and official claims
to Nanhai Zhudao considering the international law debate on the control of the
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seas, which dates to the 17th century. Hugo Grotius’ Mare liberum has established
the foundations of a legal reasoning towards the maritime spaces that endure
and resound until today. The legal validation of the Dutch expansion, however,
laid consequences on the political and territorial disputes that today arose in
the SCS.
In his analysis of the consequences of European expansion in the SCS and
its relationship with boundaries, Hayton (2014) states that: “The transition from
fluid frontier to fixed frontline laid the foundations for the current conflict in
the South China Sea” (63). This is in line with what Odgaard (2022) argued in
respect to this clash of concepts: different understandings of sovereignty fighting
to prevail. The article attempted to shed light on the historical differences between
China’s perspective on international law and its key concepts and to argue that
its abiding to international norms today does not mean that the country does not
mobilize idiosyncratic elements that compose its understanding of international
law and politics.
Wang Tieya (1997) tries to historically assess Chinese relationship with
international law, and how the country understands some of its cornerstone
principles, rooted in its experience with the “unequal treaties” of the 19th century.
While explaining Chinese understanding and interpretation of terms as rec sic
stantibus, pacta sunt servanda, or even in its account on China’s “Five Principles
of Peaceful Coexistence”, the legal scholar clarifies the country’s intentions and
ways with which it will demand and position itself in the world. Tieya’s account
can also shed light to PRC’s resorting to ideational arguments through a recollection
of historical, literary, and cartographical evidence: by doing that, the country
attempts to consolidate the idea of Nanhai Zhudao belonging to the Chinese
people, reaching to subjective mobilization of its own people and their identity.
There is, of course, a pragmatic dimension tangible to those arguments and
records: the Chinese government argues that the disputes initiated by the Philippines
are unlawful and that PCA has no competence — therefore the Award is “null
and void”. The attempt to exclude the PCA’s competence through the notion of
historic rights is also an effort to oppose Filipino claims over Nanhai Zhudao.
China’s activities in and legal claims to Nanhai Zhudao are a topic of great
discussion and prolific production. We have tried to contribute to this discussion
by providing an overview of the most recent official communications from the
Chinese government about the matter and its bigger implications on identity
formation, alternative understanding of international norms, and possibilities of
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peaceful ways to address the disputes. The debate here engendered does not intend
to exhaust the analysis of China’s policies towards the SCS, on the contrary: it
expects to encourage further thinking about the nature and implications of Beijing’s
claims and how attached they are to ideational, yet legally plausible, values.
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