A China in the Bull Shop? Comparing the Rhetoric of a Rising China with the Reality of the International Law of the Sea

Abstract

Since the end of the Cultural Revolution in the 1970s and the conclusion of Mao Zedong’s reign, the People’s Republic of China (PRC or China) has made progress in its understanding of international law and its acceptance of the existing international legal order. Observers no longer read or hear mainstream Chinese legal experts use phrases such as the pejorative, Marxist-laden “bourgeois international law.” Instead, modern Chinese legal scholars recognize the importance of all nations, including China, “understand[ing] and abid[ing] by the rules of the international community.” Perhaps even more importantly, some Chinese officials have begun to make more progressive statements about international law. Additionally, the world sees China operating within some specific rule-sets of the international legal order.

This does not necessarily mean that China has accepted all of the rule-sets within the greater body of international law. A question that the world must consider is whether these positive statements and assurances by Chinese officials reflect a genuine acceptance of international law and the existing international legal order or whether such assurances are merely rhetoric.

In his insightful 2009 study, "China’s International Behavior," China-expert and current-White House official Dr. Evan S. Medeiros assessed that “[t]here are more instances of China gradually accepting international rules than objecting to and then trying to revise them (and succeeding).” Looking ahead, he further concluded that China is “focused far more on working within the current rules and institutions to accumulate power and influence than on opposing and revising them.” Ultimately, however, Medeiros recognized that China does not necessarily accept every rule-set of international law and, additionally, that its actual intent with respect to some rule-sets is unclear. Medeiros concisely framed the bottom-line question as follows: “does China accept the prevailing rules or does it seek to rewrite them?”

This Article considers the Medeiros question for a particular rule-set of international law — namely, the international law of the sea. Specifically, it examines China’s rhetoric on law of the sea matters in recent years, along with its official actions and the realities of the law of the sea, and assesses whether China accepts the prevailing rules or seeks to rewrite them. Part II of this Article identifies some fundamental realities of the law of the sea, which helps frame the remainder of the discussion. Part III considers whether China’s policy preferences are met by those realities, and identifies China’s options for ameliorating any disconnects between those preferences and realities. Part IV examines some specific uses of rhetoric by China on law of the sea matters and evaluates the validity of that rhetoric. Part V discusses some potential concerns about China’s use of this rhetoric and Part VI provides some specific recommendations on how China could reassure the world of its intentions on matters governed by the law of the sea. In the end, this Article will answer the Medeiros question and conclude whether or not China accepts this specific rule-set of international law.

Keywords: China, International Law, Law of the Sea, Legal Warfare, Legal Rhetoric