This article by Oriana Skylar Mastro was originally published by the Lowy Institute.

Chinese exercises in the South China Sea last month, and the strong US response, show these disputed waters will not soon be calm. While the focus has largely been on military maneuvers, competition in legal positions has also been heating up. Last year, both the United States and Australia risked China’s wrath by officially stating that China’s claims in the South China Sea are unlawful. Other claimants were pleased by this change of policy, but none voiced it prominently.

The issue, however, is not that China flagrantly violates international law – it is that it does so while simultaneously creating a veneer of legal legitimacy for its position.

The conventional wisdom is that China claims sovereignty over “virtually all South China Sea islands and their adjacent waters.” Its claims are “sweeping” and more expansive than those of any other rival claimant. In 2009, Dai Bingguo, then a top Chinese official, first referred to the South China Sea as a “core interest”, a term often used for Taiwan, Xinjiang, and Tibet. While China has not been specific about the extent of its claims, it uses a “nine-dash line” which “swoops down past Vietnam and the Philippines, and towards Indonesia, encompassing virtually all of the South China Sea”, to delineate its claims.

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On the surface, it appears that Chinese leaders are relying on a historical argument to buttress their claims – China traces its interaction with the South China Sea back to the Western Han Dynasty. Thus, Beijing’s narrative about its claims begins as early as the 2nd century BCE, when Chinese people sailed in the South China Sea and discovered some of the region’s land features.

Scholars have meticulously cataloged the dubious nature of this history. And besides, the UN Convention for the Law of the Sea (UNCLOS) does not grant signatories the right make claims based on historical legacy, and the concept of “historic claims” lacks a clear basis in international law.

But this is not actually how China lays claim to 90% of the South China Sea. China’s abuse and misapplication of international law is a bit more complex. There are four levels that build on one another.

First, China claims it has the same rights as archipelagic states, those countries mainly made up of islands. One of the benefits of archipelagic status is that the waters between islands are considered internal waters, like rivers inside a country. Other countries have no right to transit these waters without permission. This archipelagic status is conferred through the UN, and only 22 nations claim it.

Spoiler alert: China is not one of them.

China is undeniably a continental country, but nevertheless, it drew straight baselines around the Paracel Islands and claimed the waters between the islands to be internal waters. Beijing has not done this explicitly for the Spratly islands area, but its reaction to the activities of other countries suggests that is its interpretation. My discussions with Chinese strategists reveal that China will likely explicitly draw baselines to claim internal waters between the Spratly Islands once it has the military capabilities in place to enforce it. (This is not an easy task, as the Spratlys’ sea zone is 12 times that of the Paracels, covering 160,000 to 180,000 square kilometers of water.)

China then claims a 12 nautical mile (nm) territorial sea from the Paracel baseline, not from the individual islands, and in the Spratlys from many features that under international law are not awarded this right, such as artificial islands. Moreover, China’s interpretation of the territorial sea is that the state has the exclusive right to make, apply and execute its own laws in that space without foreign interference. But according to UNCLOS, all ships, civilian or military, enjoy the right of innocent passage through other states’ territorial seas. Moreover, the contiguous zone is considered part of international waters, and states do not have the right to limit navigation or exercise any control for security purposes.

Lastly, China claims 200 nm from the end of the territorial sea as its exclusive economic zone (EEZ), where it claims to have the right to regulate military activity. The US insists that freedom of navigation of military vessels is a universally established and accepted practice enshrined in international law – in other words, states do not have the right to limit navigation or exercise any control for security purposes in EEZs. Australia shares this view, but not all countries accept this interpretation. Argentina, Brazil, India, Indonesia, Iran, Malaysia, the Maldives, Oman, and Vietnam agree with China that warships have no automatic right of innocent passage in their territorial seas. Twenty other developing countries (including Brazil, India, Malaysia, and Vietnam) insist that military activities such as close-in surveillance and reconnaissance by a country in another country’s EEZ infringe on coastal states’ security interests and therefore are not protected under freedom of navigation.

In other words, while international law may support the position of the US and Australia on legal behavior within the EEZs, countries need to work harder to solidify this norm more broadly.

Through these three positions alone on internal waters, territorial seas and EEZs, China lays claim to approximately 80% of the South China Sea. Then China uses the nine-dash line to cover the remaining territory and provide redundancy by claiming “historic waters” – i.e., that China has historically controlled this maritime environment – again, a view that has no basis in international law.

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The US has taken steps to challenge the false legal basis of China’s claims. This is the main purpose behind freedom-of-navigation operations, or FONOPS – to demonstrate through action that the US does not accept China’s position that areas are not international waters but internal or territorial waters. In other instances, the US is signaling that it does not accept an area to be in China’s EEZ, although China would not have the right to regulate military activity there anyway.

But undermining China’s false legal claims will take more than military operations and harsh statements. In 2016, the Hague Tribunal ruled that China’s claims of historic rights in the South China Sea lacked legal foundation, China’s actions in the region infringed on the rights of the Philippines, and features in the Spratlys are not entitled to EEZs or territorial zones. Yet Washington’s ongoing refusal itself to ratify UNCLOS undermines the general effectiveness of pushing back against Beijing with legal tools of statecraft. Additionally, Washington squandered an opportunity to support the Philippines in enforcing the international legal tribunal’s 2016 ruling in its favor, further reducing the attractiveness for other claimants to challenge Beijing on legal grounds.

The US should not make the same mistake twice. It should support other claimants that may want to pursue legal action against China (Vietnam is currently considering this course of action). Then, when the tribunal rules once more against China, the US should lead the charge to enforce the ruling.

China is using all the tools of statecraft at its disposal to gain control over this vital strategic waterway. The US and its allies should do the same.

On February 10, 2021, the China Program at Shorenstein APARC hosted Professor Oriana Skylar Mastro, Center Fellow at the Freeman Spogli Institute for International Studies​ for the virtual program "Military Competition with China: Harder to Win Than During the Cold War?" Professor Jean Oi, William Haas Professor of Chinese Politics and director of the APARC China Program, moderated the event.

As US-China competition intensifies, experts debate the degree to which the current strategic environment resembles that of the Cold War. Those that argue against the analogy often highlight how China is deeply integrated into the US-led world order. They also point out that, while tense, US-China relations have not turned overtly adversarial. But there is another, less optimistic reason the comparison is unhelpful: deterring and defeating Chinese aggression is harder now than it was against the Soviet Union. In her talk, Dr. Mastro analyzed how technology, geography, relative resources and the alliance system complicate U.S. efforts to enhance the credibility of its deterrence posture and, in a crisis, form any sort of coalition. Mastro and Oi's thought-provoking discussion ranged from the topic of why even US allies are hesitant to take a strong stance against China to whether or not Taiwan could be a catalyst for military conflict. Watch now: 

Since November 2020, the world has watched the presidential transition in the United States with unease. After a violent mob of Trump supporters stormed the U.S. Capitol on Jan. 6 in an effort to overturn Joe Biden’s election, headlines around the world questioned, for the first time, whether a democratic transfer of power would occur as expected. These reports also included the well-documented risks of violence that might occur at President Biden’s inauguration. 

Read the rest at Lawfare Blog

This piece was originally published by the Lowy Institute's The Interpreter. 

To break the border stand-off between India and China in the Himalayas, some Indian analysts have advocated going on the offensive against China in the Indian Ocean. But that would be vague, illogical and imprudent, with little chance of success and significant risk of blowback. Instead, India and its partners should prioritize a more effective denial strategy in the Indian Ocean, to deter and counter any potential future coercion there.

Strategies of denial seek to reinforce defensive bulwarks so that potential aggressors are dissuaded from launching an attack – or, failing that, thwarted from succeeding. They are generally considered more effective and reliable than strategies of punishment, which rely instead on the threat of retaliation after the aggressor launches its attack. Punishment was the cornerstone of nuclear deterrence during the Cold War and since, but that strategy is considerably less reliable in the conventional and sub-conventional conflicts which India now faces.

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The False Promise of Punishment

Since May 2020, Indian and Chinese troops have been locked in a tense – and, at times, violent – stand-off in the Himalayas, after Chinese incursions into the Indian-controlled territory of Ladakh. This scenario looks likely to last for months, if not years, to come. Some Indian analyses have called for bold action hundreds of kilometers away, in the Indian Ocean. They argue that horizontal escalation would broaden the Himalayas confrontation to an arena where India enjoys clear strategic advantages, allowing it to counter Chinese coercion more effectively.

The idea of taking the fight to the oceans has superficial appeal. India sits astride some of the world’s most vital sea lines of communication in the northern Indian Ocean – on which China, like all of East Asia, depends critically for trade and energy flows. India’s Navy dominates the Indian Ocean and could, the argument goes, apply excruciating pressure on the Chinese economy. This leverage could be applied in times of crisis, such as the ongoing border stand-off, or even in peacetime as a deterrent against Chinese coercion. Surely this would be less bloody than a war between the two largest armies in the world.

But the concept is unclear. It is often framed as a vague statement of Indian power, without elucidating exactly how force should be used. Should India impose a blockade of all oil tankers bound for East Asia? Board and inspect some Chinese trading vessels? Intimidate a Chinese survey ship in the Bay of Bengal, or sink a Chinese navy ship conducting anti-piracy patrols? Some of these moves would be seen as acts of war – and most would be dramatically escalatory, especially for an Indian government that has been at pains to downplay the current crisis.

More fundamentally, such moves would have no “theory of success”. How would such pressure create the desired political effect in countering Chinese coercion? A blockade would be tantamount to an act of war – but a painfully slow war that would likely require months of stringent application and be unlikely to decisively strangle the Chinese economy. Short of a long blockade, in any realistic contingency, incremental Indian pressure in the Indian Ocean is unlikely to compel a Chinese regime that has staked its legitimacy on national rejuvenation and regional hegemony.

On the other hand, history suggests that even minor Indian naval offensives against China would invite an escalating retaliation. China would not only unleash its rapidly expanding surface and sub-surface fleet against India’s navy, but it could also impose pain elsewhere. China’s options against the Indian homeland – from long-range missile strikes to cyberattacks to more land grabs on the border – would be militarily feasible and politically devastating to New Delhi. Going on the offensive in the Indian Ocean, therefore, is likely to backfire, probably very badly.

Building “Strategic Leverage” in the Indian Ocean

While the Indian Ocean may not offer a magic bullet to resolve the border crisis, it is intrinsically important for India-China competition. China’s military expansion into the Indian Ocean poses multiple risks for India and its partners such as Australia and the United States. These like-minded partners should build their strategic leverage – political relationships and military capability – to manage these risks.

India enjoys unique advantages in the Indian Ocean, due to its geography and informal networks across the region. But rather than using its advantages to start a war it would lose, a denial strategy would be mindful of India’s limitations and focus on erecting political and military obstacles to Chinese coercion in the region.

India could focus on more actively binding itself to smaller regional states – as it already does by sharing maritime domain awareness and space-based surveillance data. Building strategic interdependence would cultivate smaller states’ desire for continued cooperation with India, and institutional resistance to Chinese attempts to coerce or bribe their political leadership.

India could also enhance its sea denial capabilities. Improving its anti-submarine warfare capabilities and expanding its stock of long-range precision missiles, for example, would help to deter the prospect of Chinese direct military intervention. This could be done at a fraction of the cost of building a small number of large capital ships. The Indian Navy is doctrinally committed to pursuing sea control, which like-minded partners such as Australia should welcome. But rapidly expanding its capabilities for sea denial would serve as a stopgap and hedge against China’s ballooning naval power, which will soon be able to contest India’s dominance in the ocean.

A denial strategy in the Indian Ocean will not resolve the current border crisis in Ladakh. But it would offer a realistic roadmap for building political influence and military power in the region. It would provide the strategic leverage necessary to deter or counter future acts of coercion in the Indian Ocean.