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INTERNATIONAL OPINION ON THE SOUTH CHINA SEA ISSUE PART IV

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TITLE PUBLISHER COUNTRY PAGE I. How China Exploits a Loophole in

International Law in Pursuit of Hegemony in East Asia

The International Relations and

Security Network

Switzerland 3

II. Ancient Maps spark debate between China and Philippines over South China Sea islands

Ancient Origins Australia 9

III. South China Sea in 2015: Fears of war

The Jakarta Post Indonesia 14

IV. Philippines vs. China: Law and Disorder in the South China Sea

The Huffington Post United States

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V. Law and realpolitik in the South China Sea

The Nation Thailand 21

VI. Land reclamation a new dimension to South China Sea row

The Nation Thailand 23

VII. Creating mischief in Mischief Reef Rappler.com Philippines 25 VIII. Beijing sinks South China Sea code

of conduct China Spectator China 28

IX. Philippines Flays China’s Position On South China Sea – Part II

Eurasia Review United States

31

X. China needs to negotiate Bangkok Post Thailand 37 XI. South China Sea disputes: Three

perspectives The Straits Times Singapore 39

XII. Magnetic Rocks: Assessing China's Legal Strategy in the South China Sea; part 1

The National Interest

United States

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XIII. Magnetic Rocks: Assessing China's Legal Strategy in the South China Sea; part 2

The National Interest

United States

49

XIV. South China Sea on the rocks: the Philippines’ arbitration request

East Asia Forum Australia 57

XV. South China Sea disputes: The gloves are off

Al Jazeera Qatar 59

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How China Exploits a Loophole in International Law in Pursuit of Hegemony in East Asia 03 February 2015 How is China pursuing its territorial claims in the South and East China Seas while also avoiding overt confrontations with the US and other regional powers? According to James Kraska, Beijing‘s coercive actions fall short – quite intentionally – of what constitutes an ‗armed attack‘ in international law. By James Kraska for Foreign Policy Research Institute (FPRI) This E-Note was originally published by FPRI in January 2015. Who ―minds the gap‖ in the South China Sea? The gap, that is, created in international law concerning the use of coercion or aggressive force and the right of self-defense of victim states. China exploits this gap in the international law on the use of force to compel its neighbors to accept Chinese hegemony in East Asia. By using asymmetric maritime forces – principally fishing vessels and coast guard ships – China is slowly but surely absorbing the South China Sea and East China Sea into its domain. And it does so by exploiting a loophole in international law created by the International Court of Justice (ICJ) that makes it impossible for regional states to respond effectively. This legal dimension of the international politics of the maritime disputes in East Asia is not widely understood, but it is at the core of Chinese strategy in the region. China‘s Strategy In pursuing its grand design, China must overcome resistance from three groups of antagonists. First, China has to overwhelm Japan and South Korea in the East China Sea and Yellow Sea. The plan: divide and conquer. Make sure Japan and Korea dislike each other more than they dislike China. So long as Japan and South Korea nurse historical grievances, China reaps the gain. Second, Beijing must ―Finlandize‖ the states surrounding the South China Sea by bringing the semi-enclosed body of water into its orbit. The plan: use a suite of carrots and sticks to bring its much weaker ―frenemies‖ -- Vietnam, the Philippines, Malaysia, Indonesia, and Brunei -- into line. Likewise, the split in ASEAN plays to China‘s advantage. This strategy is by itself a powerful approach, and the first 150 years of U.S. domination and division sowed in South America provides an excellent roadmap for a gangly imperialist.

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Finally, Beijing has to position itself to prevent interference by the two major maritime powers from outside the region that could stop it. Only the United States and India are positioned to check China‘s ambition. The plan: bring pressure to bear within the region without risking great power naval war. In particular, avoid a clear-cut incident that might trigger the U.S. security agreements with Japan, Korea, or the Philippines.[1] In pursuit of these three plans, China applies pressure across the spectrum of low-level coercion, but is careful not to cross the threshold of what is considered an ―armed attack‖ in international law, and therefore trigger the right of individual and collective self-defense. For example, beginning in 1999, China declared a seasonal ―fishing ban‖ throughout the South China Sea, even though it has no legal competence to regulate fishing outside of its own 200 nautical mile exclusive economic zone (EEZ). The farthest reaches of the Chinese ban stretch more than 1000 miles from the southern tip of Hainan Island. The fishing ban purports to manage fish stocks in the EEZs of Vietnam, the Philippines, Malaysia, Indonesia, and Brunei. Imagine if the United States began to control fishing vessels and oil platforms in Mexico‘s EEZ. China also has been relentless in promoting an historic right to the islands and features, and virtually all of the ocean area, of the entire South China Sea. The world is uniformly dismayed at China‘s unflappable and indignant claim to ―historic waters‖ in the South China Sea. Maritime claims are based on the rules set forth in the United Nations Convention on the Law of the Sea (LOSC), which China joined in 1996. Beijing‘s expansive claims, however, are based on the 9- (now 10-) dashed line that was published by the Republic of China in 1947. Although a fundamental precept of the sources of international law is that the ―later in time prevails,‖ China unabashedly touts the dash-line claim as trumping its legal obligations in the Law of the Sea Convention.[2] China has also renewed historic claims in the East China Sea over the Senkaku Islands, and in the Yellow Sea. Maritime claims constitute China‘s greatest ―unforced error‖ in its nom de guerre as a ―peacefully rising‖ great power. China‘s Tactics Beijing deploys a staggering variety and number of civil law enforcement and civilian commercial vessels and aircraft to press its claims and intimidate other nations. Fishing trawlers and fishery enforcement vessels are the vanguard of this policy, resulting in routine clashes with maritime security patrols in neighboring EEZs.[3] Defense News referred to China‘s swarms of fishing vessels as ―proxy enforcers‖ that work in concert with the Chinese Coast Guard and People‘s Liberation Army Navy (PLAN) to ―circle a disputed area of contention or create a barrier to prevent access‖ by the naval forces of its competitors. China Marine Surveillance ships, for example, have completely closed the entrance to the vast lagoon of Scarborough Shoal, located 125 nm West of the Philippines and inside the Philippine EEZ. Sometimes, these incidents turn deadly. In December 2011, for example, a Chinese fisherman killed a South Korean Coast Guardsman that attempted to impound the Chinese boat for illegal fishing. Fishing vessel swarms are ―rent-a-mobs‖ at sea, yet they pose a sensitive dilemma for other countries in the region. If the fishing vessels are challenged by neighboring states‘

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maritime law enforcement, it appears that the fishermen are subjected to heavy-handed action. This political element also stokes righteous nationalism in China. On the other hand, if coastal states acquiesce in the actions of the fishing vessels, they cede jurisdiction and sovereign rights in their EEZs. China first began using fishing vessels as irregular forces in the 1990s against the islands of Matsu and Jinmen to put pressure on Taiwan during periods of political tension.[4] Today China uses these tactics against Japan in the East China Sea and in the South China Sea against the Philippines, Vietnam, and Malaysia. China also has used fishing vessel swarms against Korea in the Yellow Sea. In 2009, when China confronted the USNS Impeccable special mission ship as it conducted military surveys 75 nm from Hainan Island, it used a flotilla composed of a naval intelligence vessel, a fisheries patrol boat, an oceanographic ship and two small cargo ships or fishing trawlers. Some of the vessels appeared to be manned by Chinese Special Forces.[5] In order to forge stronger unity of effort within the government, Beijing combined five separate agencies into a single Coast Guard in March 2013. The ―Five Dragons‖ were the China Coast Guard of the Public Security Border Troops, the China Maritime Safety Administration of the Ministry of Transport, the China Marine Surveillance Agency of the State Oceanic Administration, the China Fisheries Law Enforcement Command of the Ministry of Agriculture, and the maritime force of the General Administration of Customs. Last year, China added oil rigs to its stable of paramilitary maritime forces when the China National Offshore Oil Corporation (CNOOC) rig HD 981 was positioned near the Paracel Islands in Vietnam‘s EEZ. The rig was guarded by a bevy of some 30 Chinese fishing vessels, paramilitary craft, and PLAN warships, until it withdrew months later. The oil rig incident was the lowest point in Sino-Vietnamese relations since 1979. Vietnamese forces were ejected from the Paracels by Chinese marines in a bloody 1974 invasion. As the region awaits a ruling on the Philippine‘s arbitration challenge to preserve its sovereign rights in its EEZ, China‘s maritime misadventures in the region leverage a gaping hole in international humanitarian law created by the some of the world‘s top jurists in the 1986 ICJ Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America). China ―Minds the Gap‖ in International Law In order for China‘s strategy to work, it has to slowly coerce its neighbors into accepting Beijing‘s hegemony, but avoid a military confrontation. China uses force through its coast guard, fishing vessels, and now oil rigs, to change the political and legal seascape in East Asia, but it studiously keeps PLAN ships over the horizon to sidestep the chance of war. The Charter of the United Nations governs the law on the use of force in international affairs. The goal of the United Nations is to suppress ―acts of aggression and other breaches of the peace.‖[6] While the 1928 Kellogg-Briand Pact famously outlawed the

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conduct of ―war,‖ and the agreement is now regarded as the height of interwar naiveté, the proscription in the U.N. Charter is even broader. Under article 2(4) of the Charter, ―armed attack‖ (or more accurately, armed aggression or aggression armee in the equally authentic French translation) is unlawful. Article 2(4) also states that the threat of the use of force is as much a violation as the use of force itself. What may states do if they suffer armed attack or armed aggression? Article 51 of the Charter recognizes the inherent right of individual and collective self-defense of all states to respond to an attack. So far so good – any illegal use of force qualifies as an armed attack, and an armed attack triggers the right of self-defense of the injured state, right? Wrong, at least according to the International Court of Justice. The decision in the 1985 ICJ Nicaragua Case opened a ―gap‖ between an armed attack by one state and the right of self-defense by the victim state. The case arose from the wars in Central America in the 1980s. The Sandinista regime seized power in Nicaragua in 1979, and embarked on a Marxist campaign to ―liberate‖ Honduras, El Salvador and Costa Rica. Nicaragua supported a splinter resistance movement in El Salvador with weapons, ammunition, money, training, intelligence, command and control, and provision of border sanctuaries. With this aid, guerrilla forces wrecked El Salvador‘s economy and turned minority disaffection into a full-blown insurgency. The civilian population in the region suffered, and atrocities were committed on both sides. To stabilize El Salvador, President Ronald Reagan signed National Security Decision Directive 17 on November 23, 1981. NSSD 17 authorized the CIA to build a force of Contra rebels to conduct covert action to overthrow the Sandinista regime in Nicaragua. Military assistance flowed to Honduras and El Salvador to help inoculate them against communist insurgents. The decision reflected one of the earliest programs of the Reagan Doctrine to oppose the spread of Soviet influence. In 1984 the Government of Nicaragua brought suit against the United States before the ICJ, arguing that U.S. clandestine activities against it, including arming the Contra rebels and mining the ports of Nicaragua, were a violation of Nicaragua‘s sovereignty. The United States countered that U.S. operations were a lawful exercise of the inherent right of individual and collective self-defense under article 51 of the U.N. Charter. President Duarte of El Salvador said to the media on July 27, 1984: What I have said, from the Salvadoran standpoint, is that we have a problem of aggression by a nation called Nicaragua inside El Salvador, that these gentlemen are sending in weapons, training, people, transporting bullets and what not, and bringing all of that to El Salvador. I said that at this very minute they are using fishing boats as a disguise and are introducing weapons into El Salvador in boats at night. In view of this situation, El Salvador must stop this somehow. The contras … are creating a sort of barrier that prevents the Nicaraguans from continuing to send them to

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El Salvador by land. What they have done instead is to send them by sea, and they are not getting them in through Monte Cristo, El Coco, and El Bepino.[7] The Court rejected the U.S. and El Salvadoran claims of self-defense against an armed attack by Nicaragua. In an interim decision on the Case, the ICJ ruled by a vote of 15 to 0 that the United States should ―immediately cease and refrain from any action restricting, blockading, or endangering access to Nicaraguan ports….‖ In its final ruling on the Merits, the ICJ held by a vote of 14 to 1 that Nicaragua‘s right to sovereignty may not be jeopardized by U.S. paramilitary activities. Training, arming, equipping, and supplying the Contras was a violation of international law, and not a lawful measure of collective self-defense taken by the United States and its regional allies in response to Nicaraguan aggression. The ICJ ruled lower-level coercion or intervention, such as ―the sending by or on behalf of a state of armed bands, groups, irregulars, or mercenaries‖ into another country constitutes an ―armed attack,‖ but the right of self-defense is triggered only if such intervention reaches the ―scale and effects‖ or is of sufficient ―gravity‖ tantamount to a regular invasion. There was no right to use self-defense against coercion or lower-level armed attack by irregulars or insurgents that does not rise to the threshold of gravity or scale and effects. While both Nicaragua and the United States had funded guerrillas and engaged in acts that destabilized the region, the ICJ distinction turned on the concept of ―effective control.‖ Nicaragua was found not to have ―effective control‖ over the insurgents trying to overthrow governments in El Salvador and Honduras, whereas the United States was deemed to exercise ―effective control‖ over the mining of Nicaraguan harbors and the Contras. The Court denied El Salvador the opportunity to intervene in the Case, assuring a David vs. Goliath narrative. The ICJ also accepted the Sandinista‘s version of the facts and ignored the armed aggression committed by Nicaragua against its neighbors.[8] Judge Schwebel, an American on the Court, issued the only dissent: ―In short the Court appears to offer – quite gratuitously – a prescription for overthrow of weaker governments by predatory governments while denying potential victims … their only hope for survival.‖ The Case represents one of the greatest pieces of international judicial malpractice in history and it should not be surprising that the decision now supports Chinese maritime encroachment (as well as Russian shenanigans in its neighbors from Georgia to Ukraine to the Baltics – but that is a story for another day). Whether the Nicaragua Case was driven by outcome-based decision making that required a U.S. loss, or a high-minded, but misguided effort at international social justice (as I have suggested here), the result is that a gap opened between armed aggression and the right of self-defense. By using lower-levels of coercion spread over numerous small acts, none of which are sufficient to trigger the right of self-defense, aggressors are rewarded. Being politically and legally cognizant of the Nicaragua Case, China is making strategic maritime gains at the expense of its neighbors without the risk of starting a war.

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Furthermore, China‘s strategic use of its fishing fleet as a component of ―legal warfare‖ goes beyond exploiting the gap between the use of force and self-defense in jus ad bellum; it affects jus in bello as well. Fishing vessels likely would be used as belligerent platforms during any regional war. Some suspect China is outfitting thousands of its fishing vessels with sonar in order to integrate them into the PLAN‘s anti-submarine warfare operations that would have to find and sink U.S. and allied submarines. Ever since the landmark 1900 case Paquette Habana, which arose from U.S. seizure of Cuban fishing boats in the Spanish-American war, coastal fishing vessels and fishermen are exempt from target or capture during armed conflict. By placing sonar on its fishing vessels as a force multiplier for anti-submarine operations, Beijing instantly risks these ships being regarded as lawful targets in the event of conflict. But the optics of the U.S. Navy sinking Chinese fishing vessels is made-to-order propaganda. In any event, Sam Tangredi, a prominent defense strategist wonders how many of the limited number of torpedoes is the U.S. Navy willing to expend, given the enormous number of fishing vessels. The reaction to all this might be – so what? Countries have long used asymmetric attacks that fly under the radar. What is different now is that irregular warfare is being used as a tool of the strong to change the regional security system, rather than the weak. Furthermore, the international legal aspects of the present situation inures to China‘s advantage. Consequently, the systemic risks are that much greater and can only be compared with the campaign by the USSR to destabilize countries during the Cold War. Who says international law doesn‘t matter? ***James Kraska is the Howard S. Levie Chair in International Law at the Naval War College, a guest investigator at the Marine Policy Center, Woods Hole Oceanographic Institution, and a senior fellow at the Foreign Policy Research Institute. He is the author of Maritime Power and Law of the Sea (Oxford 2011) and was selected for the 2010 Alfred Thayer Mahan Award for Literary Achievement by the Navy League of the United States.

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Ancient Maps spark debate between China and Philippines over South China Sea islands 25 January 2015 – 22:22

The Chinese government claims ninety percent of the South China Sea, including the

Spratly Islands, an archipelago of 750 islands and reefs nearer the Philippines.

However, a series of ancient maps have drawn this claim into question. The

government of the Philippines says Beijing is overreaching in claiming territory so far

south of the island of Hainan, which historical maps show to be southernmost China, far

north of the Spratly archipelago.

The Nine Dash Line in the Wikimedia Commons map below shows how much of the

South China Sea China claims for itself.

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A Filipino judge examined maps going back hundreds of years and said the

southernmost China limit historically was the island of Hainan, which is at the top of this

map (above) far to the northwest. The bottom of China‘s Nine Dash Line extends almost

to Malaysia, 1,200 miles (1,931 km) south.

One map in particular, from 1136 A.D., that was engraved in stone clearly shows

Hainan as the southern limit of China.

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Rubbing of an 1136 A.D. map engraved in stone showing Hainan (at the bottom of the map) as

the southern limit of China (South China Morning Post image of map submitted to the U.N.)

"All these ancient maps show that since the first Chinese maps appeared, the

southernmost territory of China has always been Hainan Island, with its ancient names

being Zhuya, then Qiongya, and thereafter Qiongzhou," said Philippines Senior Supreme

Court Judge Antonio Carpio last year when the dispute made news.

Carpio calls the Nine-Dash Line by which China claims 90 percent of the South China

Sea a ―giant historical fraud.‖

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The Philippines filed a 4,000-page territory dispute over China‘s claims of the South

China Sea with the United Nations. Last June, China refused to defend its claims to the

sea in a U.N court. The Chinese government said it does not recognize international

jurisdiction over its dispute with the Philippines.

PhilSTAR.com said China snubbed the U.N. on a December 15, 2014, deadline to

defend itself in the matter before the court. The online paper called the sea the West

Philippine Sea.

A China official seemed to indicate China would defend its area with force if necessary.

"The Chinese side will have to make necessary response to any intentional and

provocative action unilaterally initiated by relevant party," said China Foreign Ministry

Spokesperson Qin Gang on December 15, 2014.

Carpio said in June 2014 the Philippines intends to establish China has no historical

claim to the region even though ―historical facts‖ cannot be invoked under the U.N.

Convention on the Law of the Sea because China said it would make war to defend its

claim.

The Philippines started its case with the U.N. tribunal in March 2014 after aggressive

action by Chinese forces on fishermen.

―On March 9, Chinese coast guard vessels drove away two Philippine ships from

Ayungin Shoal, preventing them to re-supply a small group of Filipino soldiers guarding

the maritime feature. In January, the Chinese coast guard also fired water cannons at

Filipino fishermen on Panatag (Scarborough) Shoal, also called Bajo de

Masinloc,‖ philSTAR.com said in its December article.

Ancient maps of the East Indies, which the Philippines were part of, show the small

shoal, about the size of three rugby pitches west of the Philippines. The shoal has

potential fossil fuel reserves and valuable fisheries.

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A 1770 map by Britain's Royal Hydrographer shows the Panacot Shoal, now called Scarborough

Shoal. “Panacot” is a Filipino name in the Tagalog language. (National Library of Australia,

as published by Quartz.com.)

―China has held control of the shoal since 2012, leading to clashes between Filipino and

Chinese fisherman and an ongoing arbitration case at the International Tribunal on the

Law of the Sea. Elsewhere in the disputed area, China appears to be building an

airbase and a kindergarten, raising the risk of further tensions,‖ reports Quartz.

The documents and maps submitted by the Philippines to the international tribunal

quoted a 1986 judgment of the International Court of Justice, which said, ―Maps merely

constitute information which varies in accuracy from case to case; of themselves, and

by virtue solely of their existence, they cannot constitute a territorial title.‖

Vietnam also claims part of the South China Sea. Vietnamese call the sea the East Sea

because it is just off the eastern coast of that country.

Featured image: Old Map of the Philippines in year 1628 showing the Reed Bank (an area just

East of the Spratly islands) as part of the Philippines. (Image Source)

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South China Sea in 2015: Fears of war Veeramalla Anjaiah , Jakarta | January 22 2015 | 7:56 AM Is war over the festering South China Sea (SCS) maritime dispute between China and the Southeast Asian claimants of Vietnam, the Philippines, Malaysia and Brunei Darussalam inevitable in 2015? China‘s rising assertiveness, the firmness of claimants like the Philippines and Vietnam and the big powers‘ interest in the region, have led to fears that tensions might escalate into armed conflict between the contumacious China and one or two claimant countries in 2015, said a top US think-tank in a survey recently. The Washington-based Center for Preventive Action (CPA), a research wing of the Council on Foreign Relations, rated the SCS as one of top 10 potential conflicts in its Preventive Priorities Survey 2015. According to the survey, the other nine potential conflicts are Iraq, a large-scale terrorist attack on the US or an ally, North Korea, Israel‘s attacks on Iran, the Syrian civil war, Afghanistan, Ukraine, cyber-attacks and Israeli-Palestinian tensions. ―One high-priority contingency — an armed confrontation in the South China Sea — was upgraded in likelihood from low to moderate this year,‖ the CPA said. Throughout 2014, China, which has shown no signs of agreeing to a code of conduct (CoC), tried to continue its unilateral actions, known as ―salami slicing‖ in the SCS, and appease ASEAN countries through trade, investments and loans. But Chinese actions created more concerns than ever. Like a drop of poison, the SCS has disrupted good relations between China and ASEAN claimant countries, as well as Indonesia. Though it is officially not a claimant country, Indonesia feels threatened by China‘s controversial ―nine-dash line‖, especially after Beijing submitted a map to the UN in 2009, published on new Chinese passports in 2012, which encroaches into a part of Indonesia‘s Natuna maritime area in Riau province. The U-shaped nine-dash demarcation line is being used by Beijing to claim 80 percent of 3.5 million square kilometers of the SCS area. China‘s claim was fiercely contested by countries like Vietnam, the Philippines, Malaysia, Indonesia and Brunei.

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But China made it clear that its territorial claims were based on abundant historical and legal evidence. Beijing says it has ―indisputable sovereignty‖ over the islands in the SCS and its adjacent waters and enjoys ―sovereign rights and jurisdiction‖ over relevant waters as well as the seabed and subsoil thereof. But China has failed to provide the evidence and the geographic coordinates of those dashes, despite repeated requests from Indonesia and other ASEAN countries. China did not even clarify basic matters, like whether it claimed sovereignty over all the sea‘s waters and resources or just its land features. ―It [China] prefers strategic ambiguity combined with threatening rhetoric and military coercion,‖ The Wall Street Journal said in an editorial recently. Agreeing to China‘s historical claims, which are based on fishing activities, naval expeditions and maritime trade in the past, would mean acknowledging the prevalent ships from the ancient Javanese and Sumatran kingdoms, according to a new book, The South China Sea: The Struggle for Power in Asia, on the dispute by BBC journalist Bill Hayton. The kingdoms‘ ships operated in the SCS along with Arab and Indian ships for more than 1,000 years. Based on history, Indonesia should also be able to claim a certain part of the SCS. The deployment of a giant oil rig in the waters near the Parcel Islands, well within Vietnam‘s exclusive economic zone (EEZ), by China earlier this year, was a dangerous and provocative move by Beijing. After a big hue and cry from the international community and media, and violent anti-Chinese riots in Vietnam, China unilaterally removed the rig much earlier than planned. Currently, the major bone of contention is that China increasingly talks about its historic rights while ASEAN claimants refer to the UN Convention on the Law of the Sea (UNCLOS). The most significant development last year was moving the battleground from the conference rooms in ASEAN countries and China to The Hague. As part of its ―lawfare strategy‖ the Philippines filed a case in February 2013 against China‘s claims at the Permanent Court of Arbitration (PCA) in The Hague. In a rare move on Dec. 7, Beijing released its position paper on the SCS dispute in which it claimed that the arbitration had no jurisdiction because the dispute was over territorial sovereignty. But Manila is seeking confirmation of its fishing and other rights within its EEZ in accordance with the 1982 UNCLOS. Vietnam also joined the fray by submitting its position to the PCA in connection with the arbitration initiated by Manila.

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Given the war clouds hanging over the SCS issue, perhaps the best option available for ASEAN claimant countries is to pursue arbitration, an act that can reduce tensions. Among the co-founders of ASEAN, Indonesia, Malaysia —which holds the current chair of the association — and Singapore, the regional coordinator for China, have a huge responsibility to unite ASEAN and maintain peace and stability in the region, working for the early conclusion of the CoC. Nobody is certain if there will be a war over the SCS dispute in 2015, but the legal battle will continue in The Hague. ______________ China increasingly talks about its historic rights while ASEAN claimants refer to the UN Convention on the Law of the Sea (UNCLOS).

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Philippines vs. China: Law and Disorder in the South China Sea By Richard Javad Heydarian: Academic, policy advisor, and author of "How Capitalism Failed the Arab World: The Economic Roots and Precarious Future of the Middle East Uprisings" Posted: 01/07/2015 Generalizations about Asian cultures are often misleading, if not despicably orientalist. But I would dare to say that the Philippines is a nation of lawyers, while China is a nation of strategists and business-minded leaders. And this partly explains how the two countries approach the South China Sea disputes. Owing to its glaring conventional military inferiority, the Philippines has embarked on an unprecedented journey: Launching a legal warfare, dubbed as "lawfare," against China. Manila hopes to leverage international law to rein in China's relentless push across disputed waters in the South China Sea. In a nation of lawyers, the local media has tirelessly sought the views and analysis of lawyers rather than military strategists and foreign affairs experts, who may have a better grasp of the realities on the ground. In the public sphere, there is minimal discussion of the intricacies of Chinese political system, the advent of popular nationalism and its impact on foreign policy, and complex decision-making processes that determine Beijing's territorial policy. Often, panel discussions among experts boil down to the various articles of the UNCLOS and the arbitration proceedings in The Hague. The upper-echelons of the Philippines' Department of Foreign Affairs (DFA) is also dominated by legal strategists. Leading geopolitical experts are often ignored. Astonishingly, the Philippines' Department of Defense (DOD) recently postponed the refurbishment of its facilities on the Thitu (Pag-Asa to Filipinos) island, which is among the most prized features in the South China Sea, in order to supposedly maintain Manila's "moral high ground" amid the arbitration proceedings against China. In many ways, lawfare is the name of the game in the Philippines. Discussions on pro-active diplomacy and military modernization often take the backseat. Meanwhile, China has combined diplomatic charm-offensive, anchored by multi-billion trade and investment deals across the Asia-Pacific theatre, with ruthless military strategy, featuring massive construction projects and para-military patrols across disputed waters. So far, China has astutely used economic incentives and diplomatic

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acrobatics to dispel any form of unity among Southeast Asia countries on the South China Sea disputes. It remains to be seen whether China and the Association of Southeast Asian Nations (ASEAN) can even agree on the guidelines of a Code of Conduct (CoC) across disputed waters anytime soon. The question therefore is: Does this mean that the Philippines did the right thing by resorting to compulsory arbitration against China? A Historic Battle The month of December has been particularly eventful. China, the U.S. and Vietnam have all expressed their position on the legal aspects of the maritime spats in the South China Sea. And China has officially boycotted the arbitration proceedings by refusing to submit a counter-memorial to the Arbitral Tribunal in The Hague before the December 15 deadline. China reiterated its outright opposition to any form of third party arbitration vis-a-vis sovereignty disputes in the South China Sea by releasing a position paper on Dec 7, which contains three major arguments. First, Beijing contends that the special arbitral tribunal at The Hague, where the Philippines filed a memorial earlier this year, has no jurisdiction over the issue, since the UNCLOS does not accord it the mandate to address what are essentially sovereignty-related issues. Although China is a signatory to treaty, it has exercised its right (under Article 298) to absolve itself of any compulsory arbitration (under Article 287 and Annex VII) over territorial delimitation issues, among other things. Second, China maintains that, based on supposed "historical rights," it exercises "inherent and indisputable" sovereignty over the disputed features, including those that fall well within the Philippines' 200 nautical miles Exclusive Economic Zone (EEZ).Third, Beijing asserts that the Philippines violated prior bilateral and multilateral agreements (that is, the 2002 Declaration on the Conduct of Parties in the South China Sea, known as the DoC) by initiating a compulsory arbitration procedure under UNCLOS. Interestingly, the position paper was released a week before the Monday deadline for China to submit its formal position, or defence, to the arbitral tribunal. The Philippines, in response, maintains that it is China that has violated the DoC by unilaterally altering the status quo through expansive construction activities, widening paramilitary patrols and coercive behavior within the South-east Asian country's EEZ, specifically in the Scarborough Shoal in 2012 and, more recently, in the Second Thomas Shoal. The Philippines also maintains that the arbitral tribunal has the mandate to interpret the parameters of China's right to opt out of compulsory arbitration procedures. For the Philippines, its legal case is perfectly consistent with the mandate of the arbitration body, since its memorial focuses on whether China's notorious "nine-dashed-line" claim is consistent with international law, and the determination of the nature of disputed

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features (under Article 121) --specifically, whether they can be appropriated or occupied and generate their own respective territorial waters. Joining the Fray While the US does not take a position on the sovereignty claims in the South China Sea, it has indirectly supported the Philippines by supporting the resolution of the disputes in accordance with international law as well as questioning the validity of China's claims.The US State Department's position paper, released on Dec. 5, has raised issues with the "nine-dashed-line" doctrine, arguing that China's expansive claims lack precision and consistency. After all, China has not unambiguously specified the exact coordinates of its territorial claims. It is not clear whether China claims much of the South China Sea, treating it as a virtual internal lake, or simply claims the land features in the area and their surrounding waters per se. The US, similar to most independent legal experts, also maintains that China's claim to historical rights over the South China Sea waters is not consistent with international law. China has neither exercised continuous and uncontested sovereignty over the area, nor does the South China Sea -- an artery of global trade, connecting the Pacific and Indian Oceans -- constitute a bay or any form of near-coastal water that can be appropriated based on historical rights-related claims. In short, China's claims far exceed -- if not entirely contradict -- modern international law, specifically UNCLOS. Although the US is not a signatory to treaty, it has observed the international convention in its naval operations. To the surprise of many observers, Vietnam joined the fray by submitting a position paper to the arbitral tribunal in The Hague last Friday, which contains three main points: It expressed its support for the Philippines' case; questioned the "nine-dashed-line" doctrine; and asked the arbitral tribunal to give due regard to Vietnam's rights and interests. Vietnam's maneuver will most likely have no significant impact on the pending legal case between the Philippines and China, but it carries significant political implications. In recent months, Vietnam has been engaged in a sustained diplomatic effort to normalize relations with China and prevent another crisis in the disputed areas, especially in the light of the oil rig crisis in the South China Sea this year, which sparked huge protests in Vietnam and placed the two countries on the verge of armed confrontation. Vietnam's bold threat to join the Philippines' legal efforts against China carries the risk of renewed tensions in the South China Sea and of undermining tenuous, but critical, diplomatic channels between Hanoi and Beijing. It seems, however, that Vietnam is hedging its bets by dangling the threat of joining a common legal front against China as a form of deterrence against further provocations in the future.With both the Philippines and the US explicitly questioning China's expansive claims in recent months, Vietnam perhaps felt compelled to reiterate its

20

position on the issue and underline its right to resort to existing international legal instruments to address potentially explosive territorial disputes. A Pyrrhic War? Nonetheless, despite the unanimity of opinion and statements by Filipino, Vietnamese and American officials on the legal dimensions of China's claims in the South China Sea, it is far from clear whether Beijing will re-consider its policy in adjacent waters. Ultimately, China could respond to growing international pressure by hardening its position. It can accelerate efforts at consolidating its claims on the ground, vehemently reject any unfavorable arbitration outcome as an affront to its national integrity, and impose sanctions on and/or diplomatically isolate the Philippines as a form of reprisal. After all, there are no existing compliance-enforcement mechanisms to compel China to act contrary to its position and interests. Beyond sovereignty claims, the very credibility of international law is also at stake. As Columbia University Professor Matthew C. Waxman succintly puts it, "For the UNCLOS system -- as a body of rules and binding dispute settlement mechanisms -- prominence and credibility are at stake. A decision that the arbitral panel has jurisdiction," could put the arbitration body at the risk of "being ignored, derided and marginalized by the biggest player in the region." In the end, there may be no clear winners. An original version of this piece was printed on the Straits Times.

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Law and realpolitik in the South China Sea The Straits Times Asia News Network December 24, 2014 1:00 am China's rejection of the international process represented by the Permanent Court of Arbitration at The Hague is both a missed opportunity and a disappointing corollary to its intransigence on the South China Sea dispute. Beijing‘s visceral opposition to third-party arbitration is based on the suspicion that the process is a means of exerting political pressure on it over territory it thinks is inherently Chinese. Thus, its recent position paper dismisses the special arbitral tribunal - where the Philippines filed a memorial this year - as having no jurisdiction over the issue. Instead, it asserts the "historical rights" that give Beijing indisputable sovereignty over disputed features. Clearly, this perspective leaves little room for a negotiated settlement of the festering maritime dispute in accordance with the impartial, transparent and tested mechanisms of international law. China is merely offering another version of the argument that the South China Sea is its because it says so. The fact that Vietnam has submitted its position to the tribunal initiated by the Philippines is a message that sovereignty claims do not stand simply because they are made. Instead, the rule of law is crucial to the resolution of those claims, precisely because international arbitral agencies have no vested interest in the outcome, whichever way a verdict goes. After all, a victory for Manila‘s and Hanoi‘s claims is not certain; yet, they have presented their cases at The Hague. This exemplifies the spirit that countries large and small should exhibit in their dealings with one another. The opposite is likely to be the case now. At the heart of the issue is China‘s "nine-dash" territorial claim, which covers virtually the entire South China Sea.

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A repudiation of the nine dashes by the tribunal would provoke Beijing to dig in, and, indeed, to increase the stridency with which it defends its position. A new element of disquiet would be introduced into a situation that has stabilised somewhat lately. Matters would hinge on the military imbalance of power between China and the other claimants. This is not a tenable situation. The Chinese are aware that, just as their military superiority gives them leverage in the South China Sea, it has drawn in other countries as well which are not without strategic influence. The United States is not a party to the dispute, but its considerable military weight and diplomatic influence would not be absent in setting the direction of unfolding events in the region. The South China Sea is set to become a new cockpit of great-power rivalry, and one in which China‘s intentions towards East Asia generally will be judged. The stakes need not have been this high had it chosen the arbitral path.

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Land reclamation a new dimension to South China Sea row Frank Ching China Post Asia News Network December 6, 2014 1:00 am A couple of weeks ago, IHS Jane's, a leading British publishing company specialising in military topics, reported that China was reclaiming land at Fiery Cross Reef in the South China Sea and transforming permanently submerged features that do not qualify as an island under the United Nations Convention on the Law of the Sea into an artificial island big enough to accommodate an airfield and a harbour, the largest Chinese naval facility in the Spratly Islands. With the benefit of modern technology, China is able to transform nature. In theory, at least, the artificial island then can be cited to advance its legal claims not only to a 12-mile territorial sea but also to a 200-nautical-mile exclusive economic zone as well. "The new island is more than 3,000 metres long and between 200 and 300 metres wide; large enough to construct a runway and apron," Jane's reported. "The dredgers are also creating a harbour to the east of the reef that would appear to be large enough to receive tankers and major surface combatants." It went on to say: "The land reclamation at Fiery Cross is the fourth such project undertaken by China in the Spratly Islands in the last 12-18 months and by far the largest in scope. China has built new islands at Johnson South Reef, Cuateron Reef, and Gaven Reefs, but none are large enough to house an airstrip in their current form." Immediately after the disclosure, an American military spokesman, Lt-Colonel Jeffrey Pool, issued a statement saying, "We urge China to stop its land reclamation programme, and engage in diplomatic initiatives to encourage all sides to restrain themselves in these sorts of activities." But a Chinese military officer, Maj-General Luo Yuan, responded by saying that the United States is biased against China since the Philippines, Malaysia and Vietnam are all engaged in similar activities in areas that they control, yet Washington has not called on them to cease and desist.

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Even though China gained control of all of the Paracels by 1974, it did not start its move southward into the Spratlys until over a decade later despite claiming all of them and today holds only 7 reefs, all originally under water. Besides Brunei, the other claimants - Taiwan, the Philippines, Vietnam and Malaysia - have islands or have transformed reefs into islands capable of accommodating airstrips. In an unexpected development, a Chinese officer disclosed at a security forum in Beijing, the Xiangshan Forum, that such reclamation work has been going on in six of the seven reefs under Chinese control in the Spratlys. Those newly created islands, plus the ones in the Paracels group, such as the Woody Island airstrip, should give the Chinese navy and air force a far greater reach and make China's job of patrolling the South China Sea much easier than if it had to do so from Hainan Island. The next step in China's plan may well be the declaration of an air defence identification zone over the South China Sea, just as it declared one last year over the East China Sea, which overlapped pre-existing zones of Japan and South Korea, both American allies. The United States has not recognised the Chinese zone over the East China Sea. One over the South China Sea may be problematical as well. On the brighter side, China may now feel more confident of its ability to project power within the South China Sea with its existing assets and may hence not feel the need to maintain the assertive foreign policy toward its maritime neighbours that it has pursued in recent years. Certainly, China should realise that its neighbours do not threaten Chinese security. Rather, as President Xi Jinping acknowledged while in Australia, China is the "big guy" of whom others are wary. That being the case, China should allow its neighbours sufficient breathing space. After all, as the Chinese people know, it is important to have your neighbours as your friends. And, to make it clear that "big guy" China does not believe that might makes right, it will be very helpful if Beijing is willing to submit itself to international legal arbitration to see how international law views this relatively new phenomenon of mass production of artificial islands and what status they should have under the law of the sea.

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Creating mischief in Mischief Reef Zacharias de la Cruz* Published 9:00 PM, Oct 04, 2014 The problem with Chinese mischief in Mischief Reef is that it is based on a claim that lacks solid historical evidence. It is comparable to a naked land-grab, which is punishable as a criminal offense in today‘s civilized world. Mischief is an offense that is generally associated with a child. If China were a human being, it is not, by any stretch of the imagination, a child. It is a behemoth in terms of its land area, population, size of its economy, and military strength. Yet, like a child, China is creating mischief in Mischief Reef (Panganiban Reef) which, in this article, is a metaphor for the islands, atolls, and other features in the South China Sea over which China claims indisputable sovereignty to the exclusion of other littoral states, and regardless of what international law says. China‘s U-shaped map China‘s mischief in Mischief Reef is symbolized by a U-shaped map, consisting of 9-dashed lines, drawn by the Chinese leadership back in 2009. China juxtaposed the U-shaped map against long-accepted maps of the South China Sea. Everything that fell inside the U-shape belongs to China, said the Chinese leadership. It was as simple as that. Their justification? Uncorroborated historical claims that certain Chinese admirals laid claim to islands, rocks, and features in the South China Sea for the Middle Kingdom centuries ago. In doing so, China acted no differently from a mischievous child who answers ―because I said so,‖ when asked why he owns every toy inside Toy Kingdom. The problem with Chinese mischief The problem with Chinese mischief in Mischief Reef is that it is based on a claim that lacks solid historical evidence. It is comparable to a naked land-grab, which is punishable as a criminal offense in today‘s civilized world.

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It runs against the letter and spirit of international law governing the seas and the oceans, particularly the United Nations Convention on the Law of the Sea (UNCLOS), to which China, ironically, is also a signatory. It deprives other littoral states in the South China Sea of their maritime entitlements under the UNCLOS. The danger with Mischief Reef The danger with Chinese mischief in Mischief Reef is that it threatens to disrupt freedom of navigation and uninterrupted flow of commerce even as many of the international Sea Lines of Communications (SLOC) pass through areas covered by China‘s mischievous U-shaped map. By mischievously transforming all the waters, including what are called the high-seas, inside the 9-dashed lines into one big Chinese pond, China is daring sea-going vessels of other countries to enter the area at the risk of being hosed down, at worse, by the Chinese Coast Guard. Chinese mischief has created tension in the South China Sea where none existed before. Trouble between it and any one of the other claimant states could erupt anytime because of deliberate act or through miscalculation. The real reason behind China‘s mischief in Mischief Reef Shorn of all the beautiful arguments presented by Chinese scholars working for so-called independent International Studies Institutes scattered all over the mainland, China‘s fantastic claim in Mischief Reef is driven by no other than the need to feed and keep contented close to 1.3 billion people representing 19% of the world‘s total population, which is a pre-condition to the communist rulers‘ continued stay in power. China‘s economic growth is already showing signs of slackening. The Chinese leadership must prepare for the time when domestic resources dry up and the country ceases to be the cheapest workshop of the world. The areas inside the 9-dashed lines are rich in fisheries resources and believed to hold billions of barrels of oil and natural gas. China must ensure ―ownership‖ and possession of them by all means before other countries do. Never mind international law when it says, the high seas form part of the global commons that no state could appropriate because they belong to all mankind. And never mind that Chinese historical claim is as good as a contract written in water. The Chinese people believe in the claim, anyway. As mentioned by David Brown in an article he wrote for Yale Global, ―China‘s man in the street is furious that countries on the periphery of ‗China‘s South China Sea‘ are stealing China‘s resources when they fish on the high seas or drill for offshore oil and gas.‖

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To the Chinese rulers, Chinese public opinion is all that matters because it is what will keep them in power, and the Chinese people are assured of food and energy security when the Chinese economic miracle has become just a fond memory. – Rappler.com *The writer is a diplomat who requested anonymity.

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Beijing sinks South China Sea code of conduct

• Benjamin Herscovitch

• 21 July 2014, 4:30 PM

Beyond being a shrewd military strategist, the ancient Chinese philosopher Sun Tzu

was also a great advocate of legal equality.

In The Art of War, Sun Tzu‘s sixth century BCE classic, he argued: ‗When it comes to

establishing rules and regulations, everyone, high and low, should be treated alike.‘

Regrettably, China‘s foreign policy mandarins seem to regard this egalitarian lesson as

irrelevant in the realm of international relations.

In Beijing‘s estimation, China is neither on an equal footing with other nations nor first

among equals; it is rather a sui generis Middle Kingdom among mere minnows.

This imperious outlook is most pointedly on display in the South China Sea, where

Beijing still refuses to accept mutually applicable rules of conduct and prefers instead to

bully its way to control of disputed territory.

In 2002, the Association of Southeast Asian Nations (ASEAN) and China issued a

Declaration on the Conduct of Parties in the South China Sea (DoC).

This lofty document calls for the resolution of territorial disputes without the ‗threat or

use of force‘ and an end to provocative land grabs, while also envisioning the eventual

adoption of a Code of Conduct (CoC) to ‗promote peace and stability in the region.‘

Ongoing unilateral moves to consolidate and expand control over contested territory

make a mockery of the DoC. Prominent recent cases include China‘s seizure of

Scarborough Shoal in 2012, China‘s plans to construct an artificial islet in the Spratly

Islands, and continued Vietnamese and Filipino reinforcement of their outposts on

disputed atolls.

Yet the most serious setback to the implementation of the DoC‘s ambitious agenda are

the stalled negotiations for a CoC, which last month again failed to produce progress.

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China‘s unyielding commitment to gaining control over contested territory and its disdain

for subjecting itself to rules that put it on an equal footing with much smaller states

mean that hopes of successfully negotiating a binding CoC are illusionary.

Chinese officials consistently emphasise that asserting China‘s claims to disputed

waters is a national ‗core interest,‘ and that Beijing will not countenance ‗compromise‘ or

‗concessions‘ in pursuing its territorial ambitions.

With compromise and concessions the very essence of successful negotiations, it

should be clear that Chinese participation in discussions for a CoC is mere pretence.

Policy planners in Beijing are also acutely aware that China has much to gain and little

to lose from indefinitely deferring the conclusion of the CoC negotiations.

Within the constraints of a binding CoC, China would likely have the equal standing of

any other state. By contrast, in a pre-CoC system of power politics, China‘s gargantuan

size means that it enjoys a decisive asymmetrical advantage over its diminutive

Southeast Asian neighbours.

ASEAN‘s total GDP was less than 35 per cent of China‘s in 2013, while the combined

military spending of ASEAN member states was less than the equivalent of 25 per cent

of China‘s defence budget last year.

Beijing already has a troubling track record of taking advantage of this military and

economic superiority.

China has used its better-equipped and larger maritime security forces to sabotage

vessels, blockade military outposts, and intimidate foreign civilians. Meanwhile, Beijing‘s

control over key levers of the Chinese economy has allowed it to press its territorial

claims by sending state-owned oil rigs into disputed waters and deploying damaging

trade barriers.

In short, China has lived up to the threat implied by then Foreign Minister Yang Jiechi‘s

2010 observation: ‗China is a big country and other countries are small countries, and

that is just a fact.‘

More worryingly still, China‘s southern maritime neighbours are set to become even

smaller in relative terms and thereby even less capable of resisting Chinese arm

twisting.

By 2050, HSBC predictions indicate that ASEAN‘s total GDP as a percentage of China‘s

GDP will have likely dropped to approximately 25 per cent, while long-term military

spending trajectories suggest that ASEAN member states will probably spend less than

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the equivalent of 20 per cent of China‘s defence budget on their militaries by mid-

century.

As with the lions and hares of Aesop‘s fables, ASEAN member states can ‗make public

speeches and argue that they should all have equal shares,‘ and yet China can simply

respond: ‗Your speeches, O Hares, lack claws and teeth such as we have.‘

Beijing might pay lip service to negotiating mutually applicable rules of conduct. Yet

China knows that submitting to the strictures of a CoC would sabotage its so far

successful strategy of expanding its de facto sovereignty through intimidation and

coercion.

Of course, failed negotiations for a CoC might not be completely unproductive. They at

least allow ASEAN member states to draw international attention to Beijing‘s unbending

approach to territorial disputes.

Nevertheless, China‘s intransigence means that Southeast Asian nations will need to do

much more than engage in well-intentioned negotiations if they seek a fair and stable

solution to one of the world‘s most volatile and divisive geostrategic conflicts.

Dr Benjamin Herscovitch is a Beijing-based Research Fellow at The Centre for

Independent Studies.

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Philippines Flays China’s Position On South China Sea – Part

II

July 18, 2014

By Rajaram Panda

Like Vietnam, the Philippines also have maritime disputes with China over territorial

claims on the South China Sea. The basis of China‘s territorial claims has been covered

in the first part of this two-part article and need not be repeated here. This much will

suffice to mention however is that the basis of China‘s claims lacks legal legitimacy and

therefore unacceptable to other claimants.

The Philippines‘ territorial claims

The official position of the Philippines is that there was no effective sovereignty over the

islands in South China Sea until the 1930s when France and then Japan acquired the

islands. After Japan‘s defeat, Japan renounced its sovereignty over the islands in the

San Francisco Treaty of 1951 and this relinquishment of the right to the islands was not

accompanied with any other special beneficiary. Thus, unlike China and Vietnam whose

claims have historical basis dating back to thousands of years, Philippines‘ position is

relatively recent, if seen based on historical evidence.

According to Philippines‘ assertion, in 1956, a Filipino citizen, Tomas Cloma, unilaterally

declared a state on 53 features in the South China Sea, calling it ―Freedomland‖. When

the Republic of China moved to occupy the main island, Cloma sold his claim to the

Philippine government, which annexed (de jure) the islands in 1978, calling them

Kalayaan.1 On 11 June 1978, President Ferdinand Marcos of the Philippines issued

Presidential decree No. 1596, declaring the Spratly Islands as a part of Filipino

territory.2

Both the Philippines and China lay claim to the Scarborough Shoal (known as

Huangyan Island in China) – a little more than 100 miles (160km) from the Philippines

and 500 miles from China. There has been a recent upsurge in tension that has sparked

concern that the area is becoming a flashpoint with global consequences.

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Tensions started over unilateral actions by China beginning with its occupation of

Amphitrite Group of the Paracel Islands in 1970 and this has escalated over subsequent

years.3 In 1971, Philippines announced claim to islands adjacent to its territory in the

Spratlys, which they named Kalayaan.4 The Philippines President Marcos announced

the claims after Taiwanese troops attacked and shot at a Philippine fishing boat on Itu

Aba.5 In February 1992, China passed a law declaring the entire South China Sea as

its territory, triggering protests from around the region.6 Then in 1997, the Philippines

began to challenge Chinese sovereignty over the Scarborough Shoal.7 Following this,

on the initiative of the ASEAN, in 2002 ASEAN and China agreed to a code of conduct

in the Declaration on the Conduct of Parties in the South China Sea.8 But on February

25, 2011, China violated this agreement when its frigate Dongguan fired three shots at

Philippine fishing boats in the vicinity of Jackson atoll. The shots were fired after the

frigate instructed the fishing boats to leave, and one of those boats experienced trouble

removing its anchor.9 Things worsened when in April 2012, the Philippine warship

Gregorio del Pilar was involved in a standoff with two Chinese surveillance vessels in

the Scarborough Shoal, an area claimed by both nations.10

The Philippine navy tried to arrest Chinese fishermen who were allegedly taking

government-protected marine species from the area, but the surveillance boats

prevented them. On 16 April 2012, the Chinese Foreign Ministry urged a Philippine

archaeological ship to immediately leave the waters of the Scarborough Shoal, which

China claimed as an ―integral part of its territory‖, but unacceptable to the Philippines.

Situation started to deteriorate at a rapid rate when on 7 May 2012 the Chinese Vice

Foreign Minister Fu Ying called a meeting with Alex Chua, Charge D‘affaires of the

Philippine Embassy in China, to make a serious representation over the current incident

at the Scarborough Shoal.11 China further retaliated by raising trade barriers on

imported pineapples and bananas from the Philippines.12 On 16 May 2012, a fishing

ban in the Scarborough Shoal by the governments of China and the Philippines became

effective.13

By July 2012, China had erected a barrier to the entrance of the shoal.14 Then on 5

September 2012, Filipino President Aquino promulgated Administrative Order No. 29,

naming maritime areas on the western side of the Philippine archipelago as the West

Philippine Sea.15 China retaliated by launching a program on 23 September to increase

the number of UAVs monitoring the Scarborough Shoal, Paracel Islands, Spratly

Islands.16 After almost no major incident in 2013, the following year did not augur well

for any nation in the region when China unilaterally imposed a ―fishing permit‖ rule in the

South China Sea on 10 January 2014,17 much to the chagrin of the United States, the

Philippines, and Vietnam. China further upped the ante when on 11 March 2014, the

Chinese Coast Guards expelled two Philippines ships from Ayungin Shoal in the Spratly

Islands.18

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In view of Chinese assertion and limitations on the part of the Philippines to counter

Chinese might, the Philippines government decided to seek legal means to resolve the

issue. In pursuance of this, the Philippines government took on 30 January 2013 its

territorial disputes with China to international arbitration after Chinese government ships

took control of a disputed shoal off the north-western Philippines and on March 30,

2014, submitted its legal arguments and evidence on the case.19

What are the agreements that are violated by claimants, creating this messy situation?

China and the 10-member Association of South East Asian Nations (ASEAN), including

the Philippines, signed an agreement in 2002 to refrain from occupying uninhabited

reefs and shoals in the sea, and from building new structures that would complicate

disputes. The Declaration on the Conduct of parties in the South China Sea (DOC) says

the parties reaffirm their commitment to the purposes and principles of the Charter of

the United Nations, the 1982 UN Convention on the Law of the Sea, the Treaty of Amity

and Cooperation in Southeast Asia, the Five Principles of Peaceful Coexistence, and

other universally recognized principles of international law which shall serve as the

basic norms governing state-to-state relations. The parties planned to set up a formal

code of conduct (COC) to resolve the dispute and prevent any potential conflict. But the

process of negotiations has been proceedings very slowly.

When the Philippines took up the issue for arbitration at the United Nations, China

blasted Manila for its legal recourse to settle maritime disputes in the South China Sea

and accused the Philippines of deviating from the agreed upon guidelines of discipline,

as well as provoking tensions in the disputed waters. In strongly worded remarks,

Chinese Foreign Ministry spokesperson Hua Chunying scolded the Philippines for its

―indifference‖ to China‘s position and charged Manila with discrediting Beijing before the

international community.20

In return, the Philippines on 25 February 2014 strongly protested China‘s water cannon

attack on Filipino fishermen in a disputed shoal, citing how such acts ―escalate tensions‖

and ―threaten the peace‖ in the region. 21 Though Lt. Col. Ramon Zagala, spokesman

of the Armed Forces of the Philippines, told reporters that the Chinese action was

―alarming,‖ he however said that the Chinese action did not warrant an immediate

military response. The Philippine government, however, released on 14 May 2014

military surveillance photos of Chinese land reclamation on a reef claimed by Manila in

the South China Sea which showed Beijing violated a regional agreement to escalate

territorial disputes. The aerial photographs obtained from ―Philippine intelligence

sources‖ said in the caption the ―extensive reclamation‖ by China on the Johnson South

Reef, called Mabini by Manila and Chigua by Beijing, was ―destabilizing.22

The Philippines also sought the understanding of other members of the ASEAN who

have similar claims over the area. On 27 February 2014, it called on Malaysia, Vietnam

34

and other claimants to join its legal challenge to China‘s massive territorial claim in the

South China Sea. The Philippines said Malaysia, Vietnam and two other governments

could either take part in the Philippine case or file their own complaints against China.

The idea was smaller countries can only have a chance to peacefully defend their

territories against the Asian superpower in a legal arena rather than take up issue

militarily. The purpose was to show the world that all of China‘s actions and claims were

invalid and wrong.

Reactions from around the world were in favour of the Philippines and against China. In

a resolution issued in Brussels in March 2014, the Centrist Democrat International

(CDI) said it ―condemns the forcible takeover and occupation of the Scarborough Islets

and the Ayungin Islands in the South China Sea‖ by China that the CDI said were

―possessed and occupied by the Philippines as part of its continental shelf and within its

exclusive economic zone.‖23 The CDI is an umbrella organization of political parties

and groups working with democratic governments around the world.

The New York Times reported on 16 June 2014 that Chinese actions have worried

senior United States officials.24 Defense Secretary Chuck Hagel scolded China for

―land reclamation activities at multiple locations‖ in the South China Sea at a

contentious security conference in Singapore in late May 2014.25 The islands will allow

China to install better surveillance technology and resupply stations for government

vessels. It appears the Chinese military is eying a perch in the Spratlys as part of a

long-term strategy of power projection across the Western Pacific.

US Secretary of State John Kerry in April 2013 conveyed Washington‘s support to the

Philippine Government‘s decision to bring its territorial disputes with China in the South

China Sea before a UN arbitration tribunal, describing Manila‘s move as ―a step in the

right direction.‖ Kerry expressed the full support of the US for the Philippines in aiming

to seek for a peaceful resolution to the disputes over the resource-rich West Philippine

Sea (South China Sea), which is being claimed by four other countries—Taiwan,

Vietnam, Malaysia and Brunei Darussalam.26

Despite of the US support, it does not seem likely that China will be willing to set up a

COC for the South China Sea issue as it does not want to concede on its stated

position; nor is it likely to accept the ruling of the arbitration tribunal. China is not likely to

work for a rapid completion of a legally binding code of conduct in the South China Sea

until all its expansion activities in the resource-rich waters is completed. Indeed, China‘s

―expansion agenda‖ in the South China Sea is stalling efforts to finalize a code and

therefore lacks sincerity. Under the circumstance, unless China revisits its policies and

realises that all its actions lack legal validity, a solution on the contentious South China

Sea issue would remain eluded. It is hoped better counsel prevails in Beijing so that

peace and stability in the Asian region are not disturbed because of its unilateral action.

35

Dr. Rajaram Panda, former Senior Fellow at the Institute for Defence Studies and

Analyses, New Delhi, and a leading expert from India on Japan and East Asia, is

currently The Japan Foundation Fellow at Reitaku University, Chiba, JAPAN. E-mail:

rajaram.panda@gmail.com

Notes:

1. ―The Philippine Territory‖, http://philippineterritory.blogspot.jp/p/spratly-islands.html

2. Ibid.

3. Jeff W. Benson, ―The South China Sea: A History of Armed Conflict‖, 5 February

2013, http://news.usni.org/2012/06/20/south-china-sea-history-armed-conflict

4. Ibid.

5. ―The China-Philippines disputes in East Sea‖, Special Report, 7 July 2014,

http://english.vietnamnet.vn/fms/special-reports/106862/the-china-philippines-dispute-in-

the-east-sea.html

6. Ibid.

7. Ibid.

8. ―Declaration on the Conduct of Parties in South China Sea‖,

http://www.asean.org/asean/external-relations/china/item/declaration-on-the-conduct-of-

parties-in-the-south-china-sea

9. ―The China-Philippines disputes in East Sea‖, n. 5

10. Ibid.

11. See, http://www.symbianize.com/archive/index.php/t-841278.html

12. Ibid.

13. Ibid.

14. Ibid.

15. Ibid.

16. Ibid.

17. ―Chinese Power Move in South China Sea: This is big‖, 7 January 2014,

http://theoptimisticconservative.wordpress.com/2014/01/07/chinese-power-move-in-

south-china-sea-this-is-big/

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18. http://johnib.wordpress.com/2014/03/11/china-harasses-philippine-resupply-ships-

at-ayungin-shoal-prevents-food-and-water-from-reaching-filipinos/

19. Rajaram Panda, ―Philippines Seeks Legal Solution to Disputes Over South China

Sea with China‖, C3S Paper No. 2063, 17 February 2014,

http://www.c3sindia.org/eastasia/3882

20. Tarra Quismundo, ―China hits Manila as UN arbitration proceedings on Spratlys

dispute start‖, 17 July 2013, http://globalnation.inquirer.net/80899/china-hits-manila-as-

un-arbitration-proceedings-on-spratlys-dispute-start

21. Simone Orendain, ―Philippines Protests Chinese water cannon attack‖, 25 February

2014, http://www.voanews.com/content/philippines-protests-chinese-water-cannon-

attack/1858531.html

22. ―Disputed South China Sea reef: Philippines objects to reclamation work‖, 15 May

2014, http://www.cbc.ca/m/touch/world/story/1.2643691

23. Michael Lim Ubac, ―Int‘l group backs PH in se dispute with China‖, 22 March 2014,

http://globalnation.inquirer.net/100780/intl-group-backs-ph-in-sea-dispute-with-china

24. Edward Wong and Jonathan Ansfield, ―To bolster its claims, China Plants Islands in

Disputed Waters‖, New Yorks Times, 16 June 2014,

http://www.nytimes.com/2014/06/17/world/asia/spratly-archipelago-china-trying-to-

bolster-its-claims-plants-islands-in-disputed-waters.html?_r=0

25. Ibid.

26. ―US backs Philippines bid for UN arbitration‖, 3 April 2013,

http://www.sunstar.com.ph/manila/local-news/2013/04/03/us-backs-philippines-bid-un-

arbitration-275752

Rajaram Panda

Dr. Rajaram Panda, a leading expert from India on East Asia with focus on Japan and

the Koreas, was formerly Senior Fellow at the Institute for Defence Studies and

Analyses, and is currently Visiting Faculty at the Centre for Japanese, Korean and

Northeast Asian Studies, School of Language, Literature & Culture Studies, Jawaharlal

Nehru University, New Delhi.

E-mail: rajaram_panda@yahoo.co.in

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China needs to negotiate Bangkok Post June 30, 2014 The disagreements between China and several members of Asean continue to fester. For most of the past month, Beijing has deliberately stoked disputes, particularly with Vietnam. Its chief instrument in pushing the envelope is an oil rig. A drilling platform seems a strange instrument of high-stakes diplomacy on the high seas. But China is using this unique weapon to further its own goals and confront those who dispute it. The latest chapter in the South China Sea quarrel started in May. China moved a billion-dollar deepwater drilling rig into water claimed by Hanoi, about 240km off the Vietnamese coast. The rig dropped anchor and apprently started searching for oil. Vietnam complained China was breaking international law by drilling well inside its 200-nautical mile exclusive economic zone (EEZ), and actually on Vietnam‘s continental shelf. China, as usual, had its own unique maps ready, showing the CNOOC Group rig was working well within Chinese water. For Beijing, this is standard fare. China claims it owns – clear and above board – about 90% of the territory of the South China Sea, and everything under the sea bed. Vietnam, the Philippines, Malaysia, Indonesia, Brunei (and Taiwan) all dispute this. China‘s standard method of dealing with the disagreements is to simply dismiss them, refuse to discuss them, and, it necessary, use force to back them up. In the past 10 days, China had moved four more oil rigs into this unecessary and ultimately dangerous situation. CNOOC, a true oil behemoth, announced that starting immediately, it is opening four new exploration sites in the western and easter sectors of the South China Sea. Translation: At the orders of the Chinese government the state oil firm intends to further the regime‘s territorial claims by a combination of the economic search for oil and the military presence of Chinese navy and coast guard ships to guarantee the security of the rigs. The obvious targets of this 21st century form of gunboat diplomacy are Vietnam and the Philippines. They are by far the most active governments in confronting China‘s aggressive territorial claims, and therefore the countries that will see the oil rigs searching — some say ―pretending to search‖ — for oil under the seabed. The danger is obvious. Early this month, anti-Chinese demonstrations got out of hand in a major industrial zone near Ho Chi Minh City. Anti-Chinese protests turned into full-scale riots, with factories burnt, and several Chinese workers killed. Beijing made a big

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show of withdrawing workers from the Vietnamese economic zone, clearly appealing to its own jingoists. Vietnam last week tried to put the dampers on increasing anti-China feeling when it barred a Catholic Church ―exhibition‖ on the South China Sea. The church said it had documents and other proof that the Paracel Islands, captured and occupied by Chinese military forces in 1974, definitely are Vietnamese territory. In the Philippines, which has freedom of speech, there is no shortage of backing for the government‘s attempt to confront China over parts of the Spratly Island group. In the recent past, there have been numerous cases of violence over this dispute. The Chinese navy has attacked and assaulted Vietnamese naval vessels recently, although so far no actual battle has broken out. A new US base in the Philippines directly faces the Spratlys, adding even more tension and potential for deadly showdowns between the Chinese and other military forces. China needs to turn its hard-nosed oil rig diplomacy into real negotiations. By engaging in talks with Asean and its members, it could establish a more satisfactory way of settling the disputes.

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South China Sea disputes: Three perspectives Rival territorial claims in the South China Sea have been in the headlines recently. This has been particularly so in the wake of China‘s move to place a large oil rig in disputed waters off Vietnam's coast in May and the subsequent heated exchanges involving the United States, China and Japan at the Shangrilah dialogue in Singapore. Experts from three countries embroiled in the disputes - China, the Philippines and Vietnam - give their views. PUBLISHED ON JUN 18, 2014 6:20 AM RICHARD JAVAD HEYDARIAN VIEW FROM THE PHILIPPINES South China Sea: Unified Asean must rise to the challenge Slowly but surely, Asia is inching closer towards a moment of truth. Recent developments underscore the growing fragility of the existing security architecture in the region. This was reflected at the recent Shangri-La Dialogue in Singapore, where there were spirited exchanges between high-level representatives from the United States and Japan, on one hand, and China on the other. This fragility should come as no surprise, given the absence of a legally-binding Code of Conduct (CoC) to govern the behaviour of disputing parties in the Western Pacific. It is high time the Association of Southeast Asian Nations (Asean) seriously contemplated - and helped negotiate - a robust maritime regime aimed at calming territorial tensions and preventing a destructive conflict in the South China Sea. The current situation affects the energy security and trade interests of all the major countries in the Asia-Pacific region. The ongoing maritime spats are not simply of concern to the claimant states. China‘s recent decision to place a large deepwater drilling platform deep inside Vietnam‘s Exclusive Economic Zone (EEZ) is significant. It undermined almost a decade of painstaking bilateral negotiations aimed at peacefully resolving territorial disputes between the two nations. Alarmingly, Hanoi and Beijing quickly became locked in a potentially disastrous standoff in the high-seas. Large-scale anti-China protests in Vietnam also snowballed into massive destruction of factories operated by, among other nationalities, Chinese and Taiwanese investors. This was followed by an exodus of thousands of Chinese citizens

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to neighbouring countries. Even investments by Singapore were affected. As a result, decades of successful economic integration in the region could be in jeopardy. Contrary to the principles of the 2002 Declaration on the Conduct of Parties in the South China Sea, China has also admitted that it has been engaged in construction activities on the Johnson South Reef, which falls within the Philippine‘s EEZ. Facing an increasingly unfavourable dynamic in the South China Sea, both the Philippines and Vietnam have stepped up bilateral security cooperation with other Pacific powers, namely the US and Japan. They have also been considering third-party arbitration to resolve maritime disputes with China. For decades, China has pursued its territorial claims through a carefully calibrated strategy, shunning coercive measures as much as possible. Combining astute diplomacy and economic incentives, China offered the prospect of ―joint development‖•to forestall an uncontrolled escalation of territorial disputes. In recent years, however, Beijing has, among other things, expanded its para-military patrols across disputed areas. This has involved seizing control of the Scarborough Shoal, harassing the Philippine marine detachment in the Second Thomas Shoal, and unilaterally pursuing energy exploration and construction activities in the South China Sea. The rapid rise of China‘s military power has rattled some neighbouring countries, which have nervously watched the growing militarisation of the ongoing maritime disputes. Meanwhile, China-Asean negotiations over a legally-binding maritime regime have largely stalled, with both parties yet to finalise the guidelines of a proposed CoC. In a maritime experts workshop in Singapore, organised by the Center for Asian Strategic Studies - India (CASS-India) on May 28, leading maritime specialists from across the Asia-Pacific region agreed on the need to ensure the swift conclusion of a CoC under the auspices of the Asean. The status quo is unsustainable. Claimant states such as the Philippines and Vietnam are increasingly overwhelmed by China‘s rising territorial assertiveness and expanding naval capabilities. There is also a need to establish a pluralistic, institutionalised balance of power in the region. In such an arrangement, all the Pacific powers, from Japan, Australia, and China, to the US, and India, would actively contribute to and negotiate a more stable and resilient regional order. This would then pave the way for a peaceful, diplomatic resolution of the ongoing territorial disputes. Under the Shinzo Abe administration, Japan is carving out a greater regional role. Tokyo has expanded its defence aid to neighbouring countries such as the Philippines, relaxed self-imposed restrictions on arms exports, increased military spending, and introduced the concept of collective self-defence. The latter could potentially allow Japan‘s Maritime Self-Defence Forces to play a more pro-active role in ensuring the security of major shipping lines.

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Meanwhile, Australia has deepened its naval interoperability with the US, with a greater focus on preserving freedom of navigation in international waters. Others powers such as India and South Korea, which have a direct stake in the stability of the South China Sea, are also expected to play a more decisive role in the coming years. Above all, however, Asean should be at the centre of the process, helping to drive regional integration. But in order to do this, South-east Asian leaders should formulate a unified position on and proactively pursue a rule-based resolution to the South China Sea disputes. Richard Javad Heydarian is a lecturer in political science at Ateneo De Manila University (ADMU), and a policy advisor at the Philippine House of Representatives.

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Magnetic Rocks: Assessing China's Legal Strategy in the South China Sea; part 1 Beijing‘s goal: to sustain regional peace and stability while also advancing its expansive claims. Can it succeed? Sean Mirski May 19, 2014 Editors Note: This is the first in a two-part series assessing the legal strategies of the South China Sea claimants in their broader strategic context. Below, Sean Mirski examines how China's strategy has been driven by its conflicting desire to both maintain regional stability and consolidate control over the South China Sea. For Part II of this series click here. Centuries ago, Chinese fishermen referred to the isles of the South China Sea as ―magnetic rocks‖—a morbid allusion to the uncanny force that drew ships to unlucky fates on the shoals. Today, however, the South China Sea attracts a different kind of trouble. For the last six decades, the Sea has been the center of a geopolitical maelstrom fueled by great power politics, toxic nationalism, and bountiful petroleum reserves. Six different parties – Brunei, China, Malaysia, the Philippines, Taiwan, and Vietnam – feud with each other over both the South China Sea‘s insular territories and their surrounding waters. Of the six contenders, China has become the key player. It is the largest and most powerful disputant, and it has also advanced the most sweeping claims. Yet Beijing‘s behavior does not always mirror its growing power and ambitions. Instead, China‘s strategy is more complex, and is shaped primarily by Beijing‘s desire to sustain regional peace and stability while also advancing its expansive claims. This dilemma has led China to emphasize delaying resolution of the conflict, as best exemplified in its legal strategy for the dispute. But this strategy has become increasingly marginalized in recent years as China has become a victim of its own success. Other claimants have realized the perils of playing by China‘s rules, so they have instead countered China‘s delaying strategy with a more pro-active posture intended to push Beijing to stop dithering and to face its dilemma head-on. China has struggled to respond, and its reaction has raised tensions across the region while failing to change its opponents‘ calculus. As the dispute escalates, China may feel mounting

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pressure to abandon its delaying strategy and to seek a swifter resolution to the conflict—as the events unfolding now are beginning to show. China‘s Conflicting Strategic Interests Rising Peacefully To understand Beijing‘s predicament, consider its conflicting strategic interests. On the one hand, China seeks to perpetuate its decades-long growth streak. The statistics are familiar: the nation‘s economy has been booming at an average annual rate of almost ten percent over the last thirty-five years, and its economy has doubled in size five times during this period. Even if its growth slows to some extent, China‘s economy could—and indeed, almost certainly will—eclipse that of the United States in the coming future. But, geopolitically speaking, China‘s growth is relatively unusual. Rather than engaging in Charles Tilly‘s dialectical ―state making‖ and ―war making,‖ Beijing instead embedded itself in the liberal international economic order. In retrospect, this decision proved prescient: China has been prospering ever since it hitched its economy to American-led globalization. International economic interdependence doesn‘t happen in a vacuum, though. To work its commercial magic, economic interdependence needs a relatively peaceful external environment. Conflicts can tear apart the economic relationships at the heart of an open trading system and cleave China away from valuable trading partners, even if Beijing itself avoids getting involved. Worst of all, any regional imbroglios could usher in even more American political and military power into the region – a threat to China‘s longer term ambitions of regional preeminence (if not dominance). To keep growing, then, China needs a stable and peaceful Asia. Consequently, China‘s leaders have repeatedly cast their policies in terms of a ―peaceful rise‖ or ―peaceful development.‖ This strategy involves more than mere rhetoric: over the last three decades, Beijing has settled numerous border disputes; engaged in skillful regional diplomacy; become actively involved in regional and international governmental organizations; and signed mutually beneficial trade agreements across the world. Indeed, it should come as no surprise that China has also behaved remarkably well in the military sphere: it last fought a war in 1979, and has only been involved in one minor skirmish in the South China Sea since then (Johnson South Reef in 1988). In short, China has tried to be a model regional citizen, all in service of its economic ambitions. Controlling the South China Sea But while Beijing‘s long-term ambitions counsel restraint, its more immediate objectives – including sovereignty over the South China Sea – pull the other way. In Beijing‘s ideal world, China would now be the undisputed master of the South China Sea.

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Beijing seeks to control the South China Sea in order to manage national security threats and advance its economic objectives. The Sea represents a strategic vulnerability for China, both as a historical invasion route and as a modern threat to its energy security and export-oriented economy. Controlling the South China Sea would also offer many tangible benefits. The Sea teems with bountiful fishing stocks, a mainstay of many regional economies. Beneath the ocean floor, even more valuable assets wait. Although experts differ about the size of the potential bonanza, they all agree that there is enough petroleum and natural gas to make any bordering state covetous. These strategic imperatives are reinforced by China‘s domestic politics. China‘s maritime disputes have become inextricably intertwined with Chinese nationalism. As a result, the South China Sea implicates not only China‘s sovereignty, but also its identity as a nation. And to complicate matters even further, any retreat from China‘s claims would likely spur unfavorable analogies to China‘s weakness at the hands of predatory imperial powers during the ―Century of Humiliation.‖ So even if China‘s leaders were inclined to surrender Chinese claims in the South China Sea, they would be deterred from doing so by the inevitable domestic backlash. Instead of compromising, Beijing feels increasingly pressured by a nationalist public to act assertively in its relations with the other claimants. The Horns of China‘s Dilemma Thus, China‘s strategic interests often work at cross-purposes. On the one hand, Beijing would prefer to resolve the South China Sea dispute as quickly and peacefully as possible. The dispute has stymied greater regional integration, and in recent years, China has acquired a reputation for bellicose behavior that has chilled its regional relationships. On the other hand, though, China also does not want to lose control of such a strategically important area. Its hands are further tied by a nationalistic and often pugilistic public that looks suspiciously at any perceived concessions or weaknesses on China‘s part. In short, China could try to resolve the dispute through either compromise or aggression, but neither is an appealing option. So instead of trying to resolve the conflict, Beijing has hedged and adopted a strategy of delay. Caught between competing strategic interests, China has sought to maintain enough control to preserve its claims without exerting too much control in a way that might unnerve other disputants. So while China will defend its claims against other states‘ aggression, it has generally preferred to avoid destabilizing the status quo. Of course, a delaying strategy also plays to China‘s greatest strength: its expanding power and long-run growth trajectory. Why should China try to resolve the conflict now when its negotiating position improves every fiscal quarter? China‘s Legal Strategy in the South China Sea Dispute For the best example of the delaying strategy at work, look no further than China‘s legal strategy. This strategy is a carefully crafted mix of substantive legal claims and

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negotiating tactics, all aimed at preserving the status quo while maintaining maximum flexibility in the future. China has embraced ambiguity as a key pillar of its legal strategy. Even today—after several decades of controversy—the scope of China‘s claims remains unclear. In fact, China has only muddied the waters in recent years with its formal introduction of the infamous ―nine-dash line.‖ In 2009, Malaysia and Vietnam filed a Joint Submission to a U.N. body setting forth the limits of their outer continental shelf claims. China responded the next day with a note verbale protesting the two countries‘ claims. The Chinese note stated, somewhat cryptically, that ―China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map).‖ The attached map showed a nine-dash line reaching from China‘s coast and encompassing nearly the entire South China Sea. Since then, countries and commentators alike have wondered what—if anything—the nine-dash line indicates. It seems clear enough that China claims title to all the islands that fall within the expansive boundaries of the nine-dash line. Less clear, however, is whether it also lays claim to all the waters encircled by the line. To do so would be a blatant violation of China‘s international obligations. Under customary international law, states are bound by the principle of ―la terre domine la mer‖ (the land dominates the sea), or the idea that sovereignty over waters flows from sovereignty to nearby land, and not the reverse. In line with this principle, the U.N. Convention on the Law of the Sea (UNCLOS) permits nations to control domestic waters extending only a certain distance from their sovereign territory. Even under the most charitable reading of UNCLOS, Beijing could not lawfully claim control over much of the water enclosed by the nine-dash line. Especially in the United States, many commentators have assumed that China interprets the nine-dash line expansively. But Beijing has never officially clarified which interpretation it means to adopt. Its refusal to do so is striking, especially because nearly all commentators on the South China Sea dispute—including several Chinese scholars—have urged China to clarify its ambiguous legal claims. Instead, the Chinese government has deliberately adopted a legal policy of studied ambiguity about the scope of its claims. This ―strategic ambiguity‖ is just one facet of China‘s larger strategy of delay. The nine-dash line creates the legal space for more expansive interpretations of China‘s claims in the future, but it does not necessarily call for them now. As a result, China maintains flexibility in the long run while avoiding the short-term costs of advancing unrealistic claims. Of course, even a policy of strategic ambiguity has costs—China has been roundly criticized for its reliance on the nine-dash line, most recently by the United States. But China‘s willingness to bear these costs testifies powerfully to its reluctance to embark upon either a policy of compromise or one of aggression.

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China‘s delaying strategy has also affected the way in which China negotiates its legal claims. First and foremost, China has done its best to avoid resolving the conflict. While it has formally committed itself to a process of peaceful resolution, in practice Beijing has tirelessly advocated for a policy of ―joint development‖ whereby claimants should postpone resolution of the sovereignty disputes until conditions are ―ripe.‖ Until then, all the parties should work together to develop the resources of the South China Sea jointly. Although the approach has gained little traction, it would allow China to evade its dilemma if enacted: Beijing could promote regional peace while still exploiting the Sea‘s resources and maintaining its sovereignty claims. As another negotiating tactic, Beijing has insisted upon resolving the South China Sea disputes on a bilateral basis. According to the conventional wisdom, China prefers one-on-one bargaining over multilateral negotiations because it can more easily bring its strength to bear on a single negotiating partner. But bilateral negotiations also entail a second and perhaps more important benefit: they allow Beijing to control the pace of negotiations. In contrast, multilateral negotiations make it easier for other claimants to strike deals among themselves that force China to act. Even when China has been unable to prevent other parties from convening, it has stymied progress by co-opting individual states and taking advantage of internal divisions. The Increasing Irrelevance of China‘s Legal Strategy For many years, China‘s reactive posture served it well. From the mid-1990s to the early 2000s, China and the other claimants prioritized international law and diplomacy in both word and deed. By the mid-2000s, however, the other disputants – especially Vietnam and the Philippines – realized that they were at the losing end of China‘s delaying strategy. If they played on China‘s terms, they would continue to forfeit leverage. So they changed the rules of the game. The parties have continued to mouth the same rhetoric, but they have begun altering their underlying conduct. Instead of emphasizing the substantive law, the smaller claimants – especially the Philippines and Vietnam – have perfected a new but incredibly risky strategy: throwing China onto the horns of its own dilemma. Manila and Hanoi both know that they cannot hope to force China to surrender all of its claims, but they calculate that they may be able to wring significant concessions out of China so long as Beijing continues to waver between aggression and compromise. In the last decade, the Philippines and Vietnam have therefore attempted to pressure China by changing the on-the-ground reality and internationalizing the conflict. By adopting a more pro-active posture, the two countries hope that China will be forced to make a decision between responding aggressively—thereby imperiling its long-term growth strategy—and conceding some limited ground in the dispute. The Philippines and Vietnam are banking on China choosing the latter. While China was initially caught off guard by Manila and Hanoi‘s new strategy, it quickly recovered and honed a new, two-pronged strategy. As Peter Dutton has pointed out, the first prong emphasizes non-militarized coercion. As one aspect of this strategy,

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China has flooded the South China Sea with a slew of ―white hulls,‖ or ships owned by China‘s civilian maritime agencies. These vessels are then used to push back against the other claimants by, for example, detaining foreign fishermen or cutting the cables of oil exploration vessels. Most recently, Beijing has parked an oil rig off the coast of Vietnam—protected, of course, by an armada of white hulls. As part of this strategy, China has also used its economic heft to ―discourage‖ international investors from plunging into the troubled waters of the region. As part of the second prong, Beijing has continued to expand and bolster its naval capabilities. These capabilities are then used almost exclusively for deterrence purposes; China does not want to engage in direct conflict, but rather seeks to put a cap on the non-militarized coercion of the first prong and to prevent it from spiraling out of control. As a result, when Philippine ships encounter Chinese civilian maritime vessels, they always know that the People‘s Liberation Army Navy (PLAN) lurks just out of sight. Together, the two prongs allow China to forcefully respond to the provocations of other claimants while also containing the possibility of escalation. Once again, the objective is to reconcile China‘s competing strategic interests: Beijing defends its claims through its sometimes aggressive civilian enforcement, but it prevents the dispute from endangering its long-term growth by ensuring that weapons remain holstered throughout. In implementing this new strategy, China sometimes meets other disputants‘ actions with merely an equal and opposite reaction; more recently, however, China has begun to not only reciprocate but also to escalate, placing additional pressure on the other claimants to back down. For example, after a Philippine naval vessel detained Chinese fishermen near Scarborough Shoal in April 2012, China sent in several of its own civilian maritime vessels. The standoff continued for two months until the United States brokered a withdrawal by both sides. While the Philippines dutifully left, China reneged on the deal and stayed put. A month later, the PLAN blocked the entrance of the shoal, and its vessels have been patrolling nearby ever since. The culmination of the Scarborough Shoal standoff was a historically uncharacteristic escalation on China‘s part: in effect, Beijing seized control of Scarborough Shoal in response to the Philippines‘s initial harassment of some Chinese fishermen. But in other respects, China‘s reaction is not particularly surprising. In responding to the provocations of other claimants, Beijing must walk a tightrope between using too little coercion (thereby emboldening other parties) and using too much (thereby appearing as a regional bully). On the whole, it has not been able to maintain this balancing act, perhaps because a perfectly calibrated response is impossible. As a result, regional public opinion has swung sharply against China. In any case, the most revealing part of the Scarborough story may have happened months after China consolidated control over the shoal. On January 22, 2013, the Philippines initiated an arbitration process over China‘s claims under the auspices of UNCLOS. At some level, the case seems marginal. China has refused to participate, so

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the case could easily be thrown out for lack of jurisdiction. But even if the tribunal reaches the merits, and even if it rules in Manila‘s favor, then Beijing can just ignore the decision and wait until the wave of international criticism passes. Any result will be effectively unenforceable. Yet despite the case‘s practical insignificance, China has been frantically—and unsuccessfully—trying to stop it from proceeding. In January 2014, Beijing reached new levels of desperation, and allegedly offered to withdraw its ships from Scarborough Shoal if the Philippines would delay filing its memorial in the case. While that proposal should be viewed with suspicion—after all, Beijing has reneged on deals relating to the shoal before—it is nevertheless an extraordinary offer if true: China was willing to give up control of territory over which it claims sovereignty just to avoid a bit of bad publicity. So while China won the battle for Scarborough Shoal, it may have lost the war, all because Manila was able to find something that Beijing valued even more than the territory: its reputation for complying with international law. To China, its reputation is intimately connected to its long-term growth strategy, and the country cannot afford to advertise its total non-compliance with international law. The latest turn in the Scarborough Shoal standoff illustrates the limitations of China‘s new strategy. China‘s blunt tactics have had some successes, and in the future, Manila will likely think twice before initiating a showdown over a disputed island. But China‘s strategy has not been able to permanently alter the overall calculus of other claimants. Every time China effectively deters one type of provocation, it only incentivizes parties to escalate through another. As a result, China is being consistently impaled on both horns of its dilemma: its long-term growth strategy is increasingly jeopardized even as it confronts mounting threats to its territorial claims. Worst of all, China‘s situation is unlikely to improve. The dynamic produced by the interaction of its strategy with those of the other claimants is inherently unstable; countering one provocation merely leads to a greater one somewhere else. At some point, Beijing may find that it must bite the bullet and choose between two extremely unpalatable options: escalating the dispute into an open naval conflict and watching the region unravel, or conceding strategically valuable territory—as Beijing may have offered to do four months ago—and facing potential domestic unrest at home. China will do all it can to defer this choice, but sooner or later, it may have to decide. Sean Mirski is a second-year student at Harvard Law School, where he is Supreme Court Chair of the Harvard Law Review. He is also the co-editor of Crux of Asia: China, India and the Emerging Global Order.

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Magnetic Rocks: Assessing China's Legal Strategy in the South China Sea; part 2 Sean Mirski May 20, 2014 Editors Note: This is the second in a two-part series assessing the legal strategies of the South China Sea claimants in their broader strategic context. Here, the author analyzes the strategy of the Philippines. For part one, please click here. The Philippines must often feel as if it is engaged on the wrong side of a David-and-Goliath dispute in the South China Sea. In almost every respect, Manila finds itself at a disadvantage: it lacks the capability to protect its claims against sustained intrusions; its claims rest on shaky legal grounds; its friends and allies are unwilling to go to war to defend those claims; and its opponents are committed, cunning, and powerful. Yet despite the odds, Manila has fared remarkably well, in large part because it has been able to capitalize on its strengths and conceal its weaknesses. After realizing that a dispute on China‘s terms was no dispute at all, the Philippines turned the tables on Beijing with a pro-active strategy designed to exact concessions from its larger neighbor by forcing China to choose between specific maritime claims and its long-term interest in regional stability. This strategy has evolved over time as China has responded in kind. At first, Manila relied heavily on efforts to change the situation on the ground and to internationalize the conflict. However, China was able to counteract the Philippines at each step with its greater maritime presence and international political capital. As a result, the Philippines has recently turned to a third element of its pro-active strategy: international law. Despite the weakness of its own claims, the Philippines has been able to mastermind a comprehensive campaign against Beijing grounded in international law. This assault has centered around an arbitration case filed against China in January 2013, which has successfully—at least so far—backed the larger nation into a corner. But while this arbitration will be a critical waypoint for Manila along the road to consolidating control over its claims, it also raises unsettling questions about the unstable dynamic that has gripped the region. Losing Hand

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In many respects, the Philippines has been dealt a losing hand in the South China Sea dispute. Like China, the Philippines must contend with a serious strategic dilemma. On the one hand, it wants to consolidate control over its South China Sea claims. This ambition is buoyed by the fervent nationalism of its citizens, who loudly object either to any concessions on the Philippines‘s part or to encroachment on the part of other contestants. On the other hand, though, Manila must also nourish its network of relationships in the region, including its ties with its fellow ASEAN members, with China, and with the United States. It‘s no easy task for the Philippines to maintain amicable relations with its chief South China Sea rivals, many of whom possess far stronger legal claims than it does. It‘s even harder when nurturing any one relationship can often appear to come at the expense of the others, given the zero-sum competition between many of the Philippines‘s neighbors. The dilemma is particularly thorny with respect to the Sino-Philippine relationship. China is the Philippine's chief competitor for control of the South China Sea. But China is also one of Manila‘s primary trade partners, even if the Philippines depends relatively less on it than do other states in the neighborhood. In the past, Beijing has not been afraid to leverage its economic heft to express its displeasure with Philippine policy: during the Scarborough Shoal standoff, for example, China curbed imports of Philippine bananas and obstructed tourist visits. More importantly, the Philippine navy pales in comparison to the People‘s Liberation Army Navy. In a conflict between the two forces, the Philippines would face an uphill battle at best; a more honest assessment would describe the situation as ―hopeless.‖ A similar disparity exists between the two nations‘ civilian maritime enforcement capabilities. And when tensions flare, some in China have not been afraid to stress the Philippine military‘s comparative weakness. Also during the Scarborough Shoal standoff, Chinese General Luo Yuan noted slyly that ―considering the relative military strengths of China and the Philippines, the Filipino people can judge for themselves the wisdom or otherwise of their government‘s decision to take this stand against China.‖ Even the Philippines‘s friends are not always dependable. Although Manila is a longstanding treaty ally of the United States, relations between the two countries have sometimes been rocky. Of course, Manila has ramped up its cooperation with Washington in recent years as the threat posed by China has grown more ominous. But despite its best efforts, the Philippines has been unable to persuade the United States to clarify the exact scope of their mutual defense treaty, and particularly how much it applies to disputed territory in the South China Sea. The Philippines also worries that even if Washington is theoretically committed to its Asian pivot, it may not be able to deliver because of budgetary woes at home. In short, the Philippines finds itself in a rather disadvantageous strategic situation. It is engaged in a territorial dispute against a set of adversaries who possess relatively stronger legal claims. Its main rival sits atop the world‘s second largest economy and far superior naval assets, and has demonstrated dedication and shrewdness in prosecuting its claims. Set against this formidable set of challenges, the Philippines has only a few

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uncertain—if strengthening—relationships with external powers like the United States and Japan. Now or Never: The Philippines‘s Strategic Response But despite the hand it has been dealt, Manila has been playing the game remarkably well. First and foremost, the Philippines has identified a clear objective: a quick resolution to the dispute on the best possible terms. Unlike China, the Philippines has no interest in dragging out the situation. Its primary rival grows relatively stronger every year, and the island nation may not be able to count on its friends and allies—especially the United States—in the long run. The Philippines can also afford to resolve the conflict in the short-term because its strategic dilemma is less pressing than China‘s in many respects. True, Manila is also caught between the twin desiderata of regional peace and territorial sovereignty. But unlike China, the Philippines does not depend nearly as much on regional interdependence for its long-term growth. Even if a regional conflagration were to erupt, the Philippines would still be able to trade with its largest commercial partners, the United States and Japan. And while Manila might feel the pinch of any interruption in trade between China and the Philippines, it would not be a mortal blow for the island nation‘s economy. In fact, the Philippines already displayed its willingness to soldier on in the face of (admittedly limited) Chinese economic retaliation during the Scarborough Shoal standoff. This willingness to incur short-term costs has allowed the Philippines to exploit China‘s strategic dilemma. Manila recognizes that Beijing is highly committed to its territorial and maritime claims, but Manila also knows that China is constrained by its dependence on globalization and globalization‘s prerequisite, relative regional stability. China may want to control the South China Sea, but it also has larger global ambitions that require it to continue growing and modernizing. The Philippine strategy is simple: set China‘s two objectives—the South China Sea and long-term growth—against each other, and then bank on the fact that China cares more about the latter than the former. In practice, Manila has implemented this strategy by adopting a proactive and even a confrontational posture in the dispute. The Philippines hopes to exact concessions by escalating the conflict in a way that China is unwilling to match for fear of imperiling its long-term growth. In effect, David is deliberately goading Goliath in the hope that the better angels of Goliath‘s nature—or at least his strategic interests—will stay his hand in the dispute. The strategy also aims to turn the Philippines‘s greatest weakness—the remarkable disparity in power between the two contenders—into a source of strength. The Philippines calculates that any counter-assertiveness by China will redound to Manila‘s benefit internationally because China will appear to be the aggressive party that is picking on its weaker neighbor. After all, in the eyes of the international community, why would the Philippines start a fight that it was destined to lose? In effect, Manila can

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escalate safely because it is weak; Beijing will always look like the bully when it responds. The Philippines has carried out this pro-active strategy using three distinctive tactics: (1) changing the facts on the ground; (2) internationalizing the dispute; and (3) wielding international law. At first, the Philippines relied heavily on a combination of resource exploitation and arms purchases in order to alter the on-the-ground strategic reality. In terms of resource exploitation, Manila has encouraged its fishermen to venture further offshore, often sailing deep into the heart of contested areas. It has also prospected and drilled in these areas for oil and gas. In terms of arms purchases, the Philippines has augmented its naval and coast guard capabilities by turning to benefactors such as the United States and Japan. It has also demonstrated that it is not afraid to use these forces to try to tinker with China‘s calculus, including by detaining or expelling hundreds of Chinese fishermen caught in disputed areas. Just recently, Manila arrested eleven Chinese fishermen in disputed waters near the Spratly Islands; it intends to prosecute nine of them for illegally poaching sea turtles. Additionally, the Philippines has repeatedly tried to internationalize the dispute by inviting in external actors to constrain China and thereby increase the Philippines‘s own leverage. For example, the Philippines has broadened and deepened its relationship with Beijing‘s other rivals such as Japan, South Korea, and Australia. Manila has also tried to use the Sea‘s hydrocarbons to entice countries like Russia and India into the region. And in its efforts to enlist outside allies, Manila has not forgotten its relationship with the United States – the two countries recently agreed to a new security accord that grants American military forces access to local bases for maritime and humanitarian operations. Finally, closer to home, the Philippines has been working to increase ties between the members of ASEAN in order to form a united front against Beijing. China Pushes Back But the Philippines has had only mixed success in executing the first two elements of its proactive strategy, namely, changing the facts on the ground and internationalizing the dispute. On the positive side of the ledger, the Philippines has successfully provoked China while crafting a regional narrative that portrays Beijing as the bully and the Philippines as a weak but feisty victim. In part due to China‘s pushback against the Philippines, regional public opinion has swung sharply against China. The international community has become more and more involved in the dispute even as the Philippines and other claimants increasingly band together for protection against China. But although Beijing is losing control of the public narrative, China has nevertheless effectively maintained the upper hand over much of the South China Sea itself. In crude terms, the Philippines‘s strategy depends on forcing China to choose between losing the South China Sea and losing the region as a whole. Yet China has thus far evaded this stark choice by relying on a strategy that responds in a tit-for-tat fashion against

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Philippine provocations while deterring further escalation. Beijing‘s minatory strategy has not won it many friends in the region, but it has not been sufficiently egregious to staunch—much less slow—regional trade. So while tensions continue to mount, China has not yet been pushed to the brink, as the Philippine strategy requires. Worse, the Philippine strategy has come at significant cost. China has managed to score some spectacular successes, best exemplified by Scarborough Shoal. Although Manila intended to intimidate China out of the Shoal, the strategy backfired – Beijing effectively punted the Philippines out, and has since consolidated control over the area. In part, the Philippines has faltered in its campaign because it has been fighting on the wrong battlefields. As part of the first two elements of its strategy, Manila tried (1) to change the on-the-ground reality in the South China Sea and (2) to internationalize the dispute. Yet in both arenas, China holds a comparative advantage. As described previously, China has maritime enforcement assets that easily dwarf those owned by the Philippines. Against this greater physical strength, the Philippines has relatively little leverage to change material realities. Similarly, China has greater weight than the Philippines in the international community thanks to its extensive trade relationships. States generally listen when Beijing warns them that any involvement in the South China Sea dispute could be costly for their investments in China. So even if some actors are becoming increasingly wary of China‘s behavior, none has yet mustered the courage to put its money where its mouth is and to decrease its trade with the world‘s second largest economy. Indeed, several international oil companies have ultimately decided against investing in the South China Sea after hearing that it could adversely affect their Chinese projects. For its strategy to succeed, then, the Philippines needs to throw down the gauntlet in an arena where it has a comparative advantage over China and where China has difficulty leveraging its relative strength. For that reason, Manila has increasingly prioritized the third element of its strategy: international law. The Mouse That Roared: A New Emphasis on International Law All states are (generally) considered equal in the eyes of the law. International law can therefore be used to negate China‘s material advantages in strength and reduce it to the same level as the Philippines. Accordingly, since 2011 Manila has relied more and more on international law as a weapon for prosecuting its claims. Of course, all of the South China Sea claimants frequently justify their claims through the language of international law. But the Philippines has done more than merely defend its claims through international law; it has also applied international law to contest China‘s own claims in a variety of different arenas. The opening shot was fired on Apr. 5, 2011. That day, Manila filed a note verbale with the United Nations protesting China‘s nine-dash line as ―hav[ing] no basis under international law.‖ The note was peculiarly timed; it responded to a previous pair of notes filed by China almost two years earlier, on May 7, 2009. When China had

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originally filed its notes, it had elicited a flurry of response notes from other nations over the following few months. But the Philippines stayed silent for two years before it decided to resurrect the issue unilaterally by filing its own note. Manila was interested in more than diplomatic formality; it chose to puncture that long stretch of inactivity in order to put Beijing on the defensive. Since then, the Philippines has ramped up its international law offensive. Most significantly, Manila decided to take its case to a neutral arbiter in the wake of the Scarborough Shoal fiasco. On January 22, 2013, Manila took the bold step of launching an arbitration process under the auspices of the U.N. Convention on the Law of the Sea (UNCLOS). In its case, the Philippines is primarily making three claims: first, that China‘s nine-dash line is unlawful under the Convention; second, that many maritime features claimed by China do not generate a 200-nautical mile exclusive economic zone (EEZ) as Beijing asserts; and third, that China has repeatedly violated the Philippine‘s rights under the Convention. Unsurprisingly, Beijing has rejected the Philippines‘s claims and refused to participate in the case. Yet according to Article 9 of Annex VII to the UNCLOS, ―[a]bsence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings.‖ While it is uncertain what effect China‘s absence will have on the tribunal‘s jurisdiction, the arbitration seems to be going the Philippines‘s way for now. Despite Beijing‘s nonparticipation, the five members of the tribunal were chosen in April 2013. They issued their first procedural order on August 27, setting a deadline for the Philippines to submit its memorial. On March 30, 2014, the Philippines did so. In some respects, the Philippines‘s focus on international law seems strange given the weakness of its own territorial claims. But the Philippines has been able to mask the weakness of its own claims by going on the offensive. It has set the terms of its UNCLOS case, choosing to focus less on its own tenuous legal position and more on the flaws in China‘s expansive claims. In particular, the Philippines has a weak claim to the territory of the Spratly Islands when compared to China. But its case is focused not on who owns the islands—indeed, the tribunal does not have jurisdiction to resolve that question—but rather on maritime legal issues such as which insular features of the South China Sea are entitled to an EEZ under UNCLOS. And because China has refused to participate in the arbitration, Beijing has forfeited an opportunity to stress its own perspective and draw attention to Manila‘s vulnerabilities. Despite its formal abstention from the proceedings, though, China has nevertheless been frantically trying to stop the case. In the year and a half since the Philippines filed it, Beijing has tried alternatively to cajole and menace Manila into ending the arbitration process. The Philippines has rebuffed these attempts, sometimes publicly (to Beijing‘s considerable embarrassment). China has also tried to turn the other members of ASEAN against the island nation, but has been met with polite refusals from that quarter as well.

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At some level, China‘s reaction seems overwrought. Even if the tribunal reaches the merits and decides against Beijing, so what? But China values being perceived as a rule-bound international actor because that perception has tangible benefits. As China grows more powerful, it must avoid appearing as a rogue revanchist state out to destabilize the extant world order. As it is, China‘s neighbors are already skittish about trading with—and thereby strengthening—the large nation. Beijing cannot afford to give them any more cause for concern. Therefore, the Philippine case has coercive potential precisely because it has become a barometer of China‘s trajectory and even its identity. When pressured, will Beijing respect international norms? Or will it accede to the Thucydidian logic that ―the strong do what they can and the weak suffer what they must‖? Manila has found a weak spot, and it intends to exploit China‘s discomfort for at least a little while longer. And if its arbitration gambit succeeds, then the Philippines will likely continue to emphasize international law in its pro-active strategy. Conclusion: A Sobering Note While China dominated South China Sea negotiations for many years thanks to its shrewd strategy and material strength, it has increasingly lost control as smaller claimants like the Philippines have adopted a more proactive and even confrontational posture. So far, Beijing has struggled to handle these small-scale provocations in a sustainable way: although it has been able to use its economic and political clout to push back against them, it has done so at the cost of its regional reputation. At the same time, however, the smaller claimants cannot declare victory yet either. For the most part, the Philippine strategy has been ineffective at coaxing concessions from China. Admittedly, Manila has hit upon a new—and potentially more potent—approach in recent years through its turn to international law. Indeed, China has shown an unheard of willingness to compromise over the Philippine arbitration (although Manila has thus far refused to negotiate, presumably in the expectation that it can get a better deal in the future). But as the case progresses, China will become increasingly desperate to halt the arbitration by any means necessary. The longer that Manila holds out, the more tempted China will be to overcome the Philippines‘s stubbornness through strength rather than settlement. Beijing may also decide to gamble on the outcome of the arbitration, especially because the tribunal could easily find that it lacks jurisdiction to decide the case. So while Manila has gained the tactical edge, it remains to be seen whether the country can keep it. Regardless of how the arbitration turns out, though, this dynamic bodes ill for the region‘s stability, as the events of the past several of weeks unfortunately illustrate. Neither side wants the dispute to descend into bloodshed, but neither party is willing to concede. Worse, the strategies of both parties depend on the other‘s reluctance to engage in open conflict. China assumes that the Philippines would be unwilling to provoke a naval engagement that it would almost surely lose, while Manila hopes that

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Beijing would not choose to inflame the region with a brazen display of its military strength. In some sense, both parties are probably correct. But neither state has full control over how events develop on the ground, particularly as both China and the Philippines often allow local forces to operate on a long leash. While this tactic can demonstrate commitment and credibility, it also risks igniting a powder keg amidst a dispute characterized by the sparks of nationalism and miscalculation. And as history has demonstrated, only one spark is necessary for the keg to blow. Sean Mirski is a second-year student at Harvard Law School, where he is Supreme Court Chair of the Harvard Law Review. He is also the co-editor of Crux of Asia: China, India and the Emerging Global Order.

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South China Sea on the rocks: the Philippines’ arbitration request 21 April 2014 Author: Christopher Ward, 12th Floor Chambers and ANU The overlapping territorial and maritime claims in the South China Sea are regularly described as flash points and sources of tension. A number of these overlapping claims do not involve China. However, it is the assertions made by China that lie at the heart of many of the disputes, as well as their possible resolution within the framework of UNCLOS. The focus of most attention regarding the South China Sea resources has been on hydrocarbons in general, and oil in particular. Oil deposits have been found in the land territory of many of the states adjacent to the waters of the South China Sea. The South China Sea region has proven oil reserves and some existing oil production (largely involving Malaysia and the Philippines). Oil has also been discovered near Vietnam and near Hong Kong. However, geographic evidence suggests that the actual prospective areas are quite small, as most of the seabed lacks the essential characteristics to be seriously prospective. China makes an ambiguous claim to the area of the South China Sea and the land masses within it. It remains very unclear whether China seeks to claim all of the waters of the South China Sea or whether China merely claims certain land territories within the area, with subsequent dependent maritime claims in the nature of territorial seas, exclusive economic zones (EEZs) and continental shelf claims. China seems reluctant to articulate the precise legal basis for its claims. What is known is that it asserts historical title to certain island features. More significantly, it also asserts some unstated form of title to waters and land masses within what is described as the ‗nine-dash line‘, which seeks to enclose the waters of the South China Sea. The nine-dash line has been the subject of official protests by Vietnam, Malaysia, Brunei, Indonesia and the Philippines. The Philippines commenced in 2013 arbitral proceedings against China under Article 287 of UNCLOS which allows for dispute settlement before, amongst other options, an arbitral tribunal constituted in accordance with Annex VII of UNCLOS. The claim of the Philippines is carefully framed to seek declarations as to the legal status of, but not legal title to, various land features in the South China Sea. In

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particular, it seeks declarations that submerged features, or features incapable of maintaining human habitation, are not islands for the purposes of UNCLOS, and that as a result such features cannot be used to establish an EEZ. More problematically, the Philippine claim also seeks a declaration that the nine-dash line is inconsistent with international law. China has declined to participate in the process of arbitration at any level. However, if the Tribunal determines that it is capable of satisfying itself of jurisdiction to hear the matter, it can proceed in the absence of China. The five-member Annex VII arbitral tribunal has been established as follows: Thomas Mensah, president (Ghana), Jean-Pierre Cot (France), Stanislaw Pawlak (Poland), Alfred Soons (The Netherlands) and Rüdiger Wolfrum (Germany). The Philippines has provided full written submissions to the Tribunal on all questions, including the question of jurisdiction. The question of jurisdiction is critical, because China has made a formal Declaration, dated 25 August 2006, which invoked the opt-out clause of Article 298. The Declaration provides that China does not accept dispute settlement in relation to a number of categories, including most relevantly, ‗disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations‘. The Philippines‘ claim is fairly carefully framed to avoid China‘s reservation to questions of ‗sea boundary delimitation‘. It does not directly seek the delimitation of any disputed area. Rather, the focus of the claim of the Philippines is upon the characterisation of the identified features as rocks or submerged features, and upon the legitimacy of the nine-dash line. Of those matters, it seems likely that the Tribunal might consider that it has jurisdiction to determine the question of characterisation of the land features as rocks or islands since that seems to fall well outside the scope of the Chinese reservation. Were the Tribunal to proceed to a determination of the status of the identified features, even in the face of determined non-participation by China, there would be much benefit for international law and the future resolution of issues in the area. Even if China refuses to accept the validity of any determination, the characterisation by a legitimate and responsible Tribunal of the status of the various maritime features would be a very helpful foundation upon which future tribunals and diplomacy could build. Christopher Ward is a barrister at 12 Wentworth Selborne Chambers who practices in all areas of public international law, President of the Australian Branch of the International Law Association, and Fellow of the Centre for International and Public Law and the Centre for Military and Security Law, ANU.

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South China Sea disputes: The gloves are off Southeast China Sea disputes have entered a dangerous stage, as China steps up its territorial claims. 11 Mar 2014 10:55 GMT ABOUT THE AUTHOR Richard Javad Heydarian Richard Javad Heydarian is a specialist in Asian geopolitical/economic affairs and author of "How Capitalism Failed the Arab World: The Economic Roots and Precarious Future of the Middle East Uprisings." As the United States and the European Union struggle to find a diplomatic resolution to the Ukrainian crisis, with Russia accused of de facto annexing Ukraine's south-eastern region of Crimea, many in Asia are increasingly worried about a similar flashpoint in the South China Sea. The West's initial prevarications on standing up to Russia - specifically on imposing punitive sanctions against Moscow's policy in Crimea - has set off alarm bells among some US allies in Asia, which are currently locked in a bitter territorial conflict with China . In the Philippines, for instance, many are wondering whether the West will come to the country's rescue if an armed conflict with China erupts in the South China Sea. No wonder, during a recent foreign affairs committee hearing in the Philippine Congress, I noticed many participants anxiously discussing the Western response to Russia's perceived aggression against Ukraine. Across Southeast Asia, there is palpable curiosity over the extent to which Washington and other Western powers are willing to come to the aid of Ukraine amid Moscow's push to consolidate its sphere of influence in the Black Sea. For sure, the Chinese leadership is also closely following the Ukrainian crisis in an attempt to anticipate possible responses to its own territorial maneuvering in the Western Pacific, which have come under heavy criticism by Washington. The Chinese leadership is also closely following the Ukrainian crisis in an attempt to anticipate possible responses to its own territorial maneuvering in the Western Pacific, which have come under heavy criticism by Washington. While Russia's resurgence, under President Vladimir Putin, has become a major source of concern among many European countries, the rapid emergence of China as an East Asian powerhouse, in turn, has rattled many Asian neighbors. Accustomed to an

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American-centric order in the Pacific theatre since the end of World War II, some Asian countries have welcomed a greater US strategic footprint in the region to constrain Beijing's perceived territorial expansionism. Thus, leaders in Tokyo, Manila, and Hanoi have largely celebrated the Obama administration's so-called "Pivot to Asia" (P2A) policy. Quite similar to Ukraine, Southeast Asian countries such as the Philippines and Vietnam have found themselves squeezed between two superpowers, the US and China. With Beijing asserting its "historical" claims to a significant portion of the South China Sea - akin to Russia's expressed commitment to retain its influence in post-Soviet territories such as Crimea - Manila and Hanoi are staking their hopes in the US' wherewithal to push back against China. Unquiet waters While it is true that the South China Sea disputes have been a permanent feature of regional affairs for some decades, recent years have been particularly disconcerting. Since 2009, China has stepped up its para-military patrols in the area, with growing reports of Chinese surveillance vessels "harassing", among others, Filipino as well as Vietnamese ships and fishermen. In mid-2012 , the Philippines and China came dangerously close to an armed conflict over the Scarborough Shoal in the South China Sea. Equipped with superior military hardware, and backed by intensive diplomatic pressure, China eventually managed to out maneuver the Philippines by effectively gaining control of the disputed shoal. By mid-2013, China pushed the envelope even further, with Chinese para-military vessels allegedly aiming to overrun Philippine military fortifications in the Second Thomas Shoal in the South China Sea, which is eerily close to the hydrocarbon-rich areas off the coast of the Philippine province of Palawan. The balance of forces on the ground has rapidly shifted in China's favour. Thanks to its relatively resilient economy, China has effortlessly accelerated its military spending, with a greater focus on its naval capabilities. The ultimate aim, many analysts claim, is to make China a pre-eminent naval power in Asia - eventually, challenging the US naval hegemony in the Pacific theatre. In response, Southeast Asian states have accelerated their efforts at establishing a legally-binding Code of Conduct (CoC) in the South China Sea, hoping to dissuade China from reinforcing its para-military fortifications and surveillance patrols across the contested areas. There have also been parallel efforts by the Philippines, Vietnam, and Singapore to increase American military presence in Southeast Asia to hedge against China's territorial assertiveness. Burned bridges

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But far from united on the issue, many members of the Association of Southeast Asian Nations (ASEAN) have been reluctant to openly criticise China over the South China Sea disputes. As the ASEAN's largest trading partner, and Asia's biggest economy, China has astutely leveraged its economic prowess vis-a-vis many Southeast Asian states. As a result, the ASEAN has failed to establish an effective and coherent policy on the South China Sea disputes. The negotiations over a CoC have largely stalled, forcing the Philippines and Vietnam to (a) seek greater strategic assistance from the US and Japan and (b) more directly confront China on the territorial disputes. The Philippines has tried to reinforce its claims in the South China Sea by going so far as renaming the contested maritime area as the West Philippine Sea. It has also sought to legally challenge China's territorial claims in the South China Sea by filing an arbitration case with the International Tribunal for the Law of the Sea (ITLOS). The Philippines hopes that other Asian countries, which are locked in similar disputes with China, will follow suit. Above all, Manila has been negotiating a new defense pact with Washington. The goal is to deter further Chinese para-military maneuvers in the South China Sea by allowing the US to establish a semi-permanent military presence and lease advanced military hardware to the Philippines. China's diplomatic siege China has responded by effectively placing the Philippines under a diplomatic siege: In contrast to almost all East Asian countries, Philippine President Benigno Aquino III is yet to conduct a formal, bilateral dialogue with his Chinese counterpart, President Xi Jinping. In addition to recent maritime regulations, which impose restrictions on the entry of foreign fishing vessels into Chinese-claimed maritime territories, there are growing reports that Beijing is also planning to impose an Air Defense Identification Zone (ADIZ) in the South China Sea. The combined effect of these (existing and proposed) measures, according to critics, would be China's de facto control over a large portion of the South China Sea. Against such gloomy backdrop, Aquino, in a recent interview with the New York Times, went so far as risking permanent diplomatic estrangement with Beijing by likening China to Nazi Germany. Naturally, Aquino's statements infuriated China, which dismissed him as an " amateurish " politician that is incapable of negotiating a peaceful compromise. But with top American officials directly criticising China's territorial claims and promising to come to Manila's rescue in the event of conflict in the South China Sea, the Filipino leadership is relatively upbeat ahead of the US President Barack Obama's planned visit to Manila, which is expected to coincide with the signing of new bilateral strategic-military agreements.

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Nevertheless, given the growing concerns over the impact of America's dwindling military budget on its forward posturing in Asia, and Western prevarications on punishing Russia's actions in Ukraine in recent days, many Filipinos are increasingly worried about China's next move in the South China Sea. Diplomacy, meanwhile, seems to have taken the backseat.