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Chinese structures are pictured in the disputed Spratlys in the South China Sea on April 21, 2017.

Erik de Castro/Reuters

Stéphanie Martel teaches political science at Queen’s University. David Welch teaches global governance at the Balsillie School of International Affairs.

On Monday, in what cynics may be forgiven for seeing as an attempt to distract attention from its mishandling of the COVID-19 pandemic, the Trump administration declared that “Beijing’s claims to offshore resources across most of the South China Sea are completely unlawful, as is its campaign of bullying to control them.”

“The world will not allow Beijing to treat the South China Sea as its maritime empire,” said Secretary of State Mike Pompeo.

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Right on! Except that this completely misunderstands what China is trying to do.

If you read any story about the South China Sea these days, you will come across stock assertions that “China claims almost all of the South China Sea” and that it has “kept up its aggression” in the region, “taking advantage of the distraction of the coronavirus pandemic to advance its presence.” China’s critics point, for example, to recent deployments of a Chinese survey ship to Vietnamese and Malaysian waters, prompting the United States, among others, to call on China to “stop its bullying behaviour.”

To be fair, Chinese officials routinely insist that China “has indisputable sovereignty over the islands in the South China Sea and the adjacent waters” – or some version of this. The first part, at least, is straightforward enough, and while it is bold, there is nothing inherently nefarious about it. Many countries claim sovereignty over islands also claimed by others, including Canada (Hans Island, also claimed by Denmark, and Machias Seal Island, also claimed by the United States).

The second part is less straightforward because, under the UN Convention on the Law of the Sea (UNCLOS), the “adjacent waters” that one can claim depend upon whether something is, legally speaking, an “island” or a “rock.” Both are “naturally formed” areas of land that are “above water at high tide,” but an island can sustain human habitation and an economic life of its own in its natural condition, whereas a rock cannot. UNCLOS specifies that islands and rocks are entitled to 12 nautical miles of territorial seas, but only an “island” is entitled to a 200-nautical-mile exclusive economic zone.

Here is where things get complicated. While China ratified UNCLOS in 1996, it has also said that it has “historic rights” in the South China Sea, including rights to “archipelagic waters,” founded in “general international law.” UNCLOS swept aside and supplanted all prior maritime law. It does include specific provisions for historic and archipelagic waters, but is clear that these provide no basis for a sweeping claim to open water, and China knows this. So what is going on?

A key piece of the puzzle is the infamous “nine-dash line,” which had its origin in maps the Republic of China used to delineate its South China Sea claims back in 1947 but was later also embraced by the People’s Republic. Long before UNCLOS, Chinese textbooks presented the nine-dash line in a way that made it look as though the entire body of water was China’s, and generations of Chinese have internalized this belief.

Taiwan – still officially the Republic of China – later clarified that it considered that the nine-dash only encompassed territorial claims, not maritime ones, but Beijing did not and has been silent when pressed. It was simply too risky for a regime whose legitimacy depended on defending China’s sovereign rights to clarify that those rights were less than what everyone in China believed them to be. Importantly, however, Beijing did not – and does not today – ”claim almost all of the South China Sea.” Silence is not a claim.

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In 2016, an arbitration-tribunal ruling in the case of Philippines v. China caught Beijing with its legal briefs down. The tribunal pronounced the nine-dash “without lawful effect” and declared that none of the disputed features in the case was an “island” entitled to an exclusive economic zone, dramatically curtailing the “adjacent waters” that China could legally claim. Contrary to many reports, however, it did not “invalidate China’s claims” in the South China Sea; it merely invalidated any claim inconsistent with UNCLOS.

The ruling put Beijing in a major bind. If it formally accepted it, it would be admitting to the Chinese people that China did not, in fact, have the sovereign rights in the South China Sea that they thought it had. But if it disregarded the ruling, it would declare itself an outlaw in the eyes of the world, which Beijing could ill afford.

Chinese leaders settled on a finesse. They would publicly decry the ruling as null and void on the ground that the tribunal lacked jurisdiction but quietly comply with as much as they could while trying to change the channel from sovereignty and maritime jurisdiction to international co-operation.

So far, the domestic prong of Beijing’s gambit has worked. The Chinese people appear convinced that their leaders have stood up for what they believe to be China’s rights. But the international prong has failed. Other countries believe that China is currently violating UNCLOS and remain acutely defensive of their own sovereign rights.

Beijing can tolerate the delicate status quo in the South China Sea more or less indefinitely. But Chinese leaders are terrified that Vietnam, Malaysia or the Philippines will do something visible that forces China either to eat crow at home or embrace outlaw status. So they sail ships near Vietnamese and Malaysian oil blocks, “not carrying out any activities against the law,” in a desperate attempt to signal others not to rock the proverbial boat. To the rest of the world this may look like aggression, but China is, in fact, playing defence, not offence.

Mr. Pompeo’s declaration presumes the opposite and pushes Beijing to choose publicly between its domestic and international audiences.

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This is extremely dangerous, because it risks provoking precisely the behaviour it seeks to deter. Beijing would prefer to keep the lid on tensions in the region but cannot be seen domestically to be kowtowing to Washington.

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