International opinion on the South China Sea Issue part IV

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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
17
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
42
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

19. 19
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. 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.

21. 21
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.

22. 22
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.

23. 23
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.

24. 24
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.

25. 25
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.

26. 26
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.‖

27. 27
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.

28. 28
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.

29. 29
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

30. 30
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.

31. 31
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.

32. 32
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

33. 33
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. 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. 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/

36. 36
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

37. 37
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

38. 38
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.

39. 39
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

40. 40
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.

41. 41
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.

42. 42
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

43. 43
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.

44. 44
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

45. 45
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.

46. 46
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,

47. 47
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