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2 May 2014, Gateway House

South China Sea: escalating tensions

Braving potential retaliation from China, the Philippines has now challenged Beijing’s sovereign claims over the South China Sea before a UN tribunal, and raised the stakes in a longstanding dispute

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Despite China’s vehement opposition, the Philippines pushed ahead with filing in March this year  a memorandum – or `memorial’ in legal parlance – to defend its territorial claims against China, formally kick-starting an arbitration case at the International Tribunal for the Law of the Sea (ITLOS). It was a bold legal manoeuvre with uncertain strategic implications, dramatically raising the risk of military confrontation in the South China Sea.

Throughout the years, China has consistently opposed subjecting its core interests, such as `territorial delimitation’, to third party arbitration. China maintains that its domestic laws and regulations are the ultimate point of reference for its territorial claims, and that the disputes in the South China Sea should be managed on a strictly bilateral basis.

Essentially, China maintains that its territorial claims in the South China Sea are based on its `inherent’ and `indisputable’ exercise of a historic sovereignty. As the predominant maritime power in East Asia prior to the advent of Western colonialism in the 19th century, Beijing argues that its merchants and fishermen have been extensively traversing the South China Sea since the time of the Ming Dynasty in the Middle Ages, exercising effective jurisdiction over the vast body of waters in the Western Pacific.

From China’s perspective, the root cause of the ongoing territorial disputes is the so-called `illegal’ decision of Southeast Asian states such as the Philippines, to occupy Chinese-claimed features in the second half of the 20th century. [1]

In addition, China has put forth a more modern, legalistic position based on its interpretation of the `regime of islands’ provisions in the United Nations Convention on the Law of the Sea (UNCLOS). Southeast Asian claimant states such as the Philippines maintain that the disputed features in the South China Sea, mostly uninhabitable and intermittently submerged under water, can at the very maximum count for only 12-nautical-miles of territorial sea in jurisdictional terms.

China, in contrast, reportedly suggests that some of the occupied features in the South China Sea can (theoretically) create their own independent 200-nautical-mile Exclusive Economic Zone (EEZ). As some of Beijing’s claimed features in the Spratly chain of islands fall well beyond 200-nautical-miles off the coast of China’s nearest coastline in Hainan, they nevertheless fall within the EEZ of Chinese-occupied features in the Paracel chain of islands, which are, themselves, within China’s EEZ. Such an interpretation legitimises China’s territorial claims well beyond 200 nautical miles from its nearest coastline.

As a confidence-building measure, China states that it is willing to temporarily set aside the issue of settling sovereignty claims in the area, in favour of joint-cooperation. It says the most important concern is to enhance bilateral relations by focusing on areas of common interest. Therefore, China has strongly condemned any move on the part of its Southeast Asian neighbours to `internationalise’ ongoing maritime spats.

However, to be fair, China has partially accommodated efforts by the Association of Southeast Asian Nations (ASEAN) to facilitate the diplomatic resolution of territorial disputes, as exemplified by Beijing’s accession to the 2002 Declaration on the Conduct of Parties in the South China Sea (DoC). To demonstrate its commitment to prevailing international legal regimes, China has also signed up to the UNCLOS.

Nevertheless, China has resisted the establishment of a legally-binding Code of Conduct (CoC), under the aegis of the ASEAN, which could place external restrictions on its territorial posturing in the South China Sea. It has also opposed efforts by neighbouring countries to streamline and coordinate maritime territorial claims in the South China Sea in accordance with the provisions of the UNCLOS.

From the perspective of the Philippines and other ASEAN members such as Vietnam, a purely bilateral approach to the territorial disputes would be counter-productive, given the significant power asymmetry between China and its smaller neighbours.

Manila maintains that China’s reluctance to sign up to a CoC, a critical component and logical extension of the 2002 DoC, is a manifestation of Beijing’s expansionist territorial designs in the Western Pacific. Wary of China’s long-term military trajectory, Filipino strategists believe that is better to settle territorial disputes today, rather than risk confronting a significantly more powerful Beijing in the future.

The Obama administration’s “Pivot to Asia” (P2A) policy has reinforced the Philippines’ desire to rein in China’s territorial manoeuvring in the immediate future. Under the Abe administration, a resurgent Japan has also emerged as a key strategic partner for the Philippines. As a result, the Philippines government under the Aquino administration has opted for a more hard-line position vis-à-vis the South China Sea disputes.

Not only has the Aquino administration more openly welcomed prospects of rotational American and Japanese military presence on Philippine soil, it has also renamed the disputed waters as the `West Philippine Sea’, a provocative move that has enraged China and undermined bilateral diplomatic channels.

A key source of tension in Philippine-China relations is the arbitration case before the ITLOS at The Hague. From China’s perspective, it represents an explicit and highly provocative contestation of its `inherent’ and `indisputable’ sovereignty in the South China Sea, undermining decades-long efforts at diplomatically resolving the disputes.

But the Philippines hold a diametrically opposed position: It views third-party arbitration as a legitimate and constructive legal instrument to peacefully resolve territorial disputes in accordance with the UNCLOS. In short, there is a significant perception gap, which more broadly represents a clash of foreign policy paradigms. The Philippines prefers a more straightforward, urgent settlement of the disputes, while China prefers a more gradualist, long-term management of territorial differences.

Given the vagueness of China’s territorial claims, which are based on unprecedented historical claims and undefined coordinates, the arbitration panel at the ITLOS will potentially face considerable challenge at arriving at a clear-cut, expedient ruling. Another complicating factor is that there are no established `enforcement mechanisms’ to ensure the swift and unequivocal implementation of a final ruling, especially in the event that China loses the case.

The Philippines, however, believes that its latest legal offensive is part of a broader strategy, which aims to put maximum international pressure on China and undermine the validity of its notorious `nine-dash-line’ doctrine. But unless the Philippines solicits optimal strategic support from the U.S. and Japan, China could retaliate by stepping up its maritime patrols in the South China Sea, implement an Air Defence Identification Zone (ADIZ) in the area, and impose economic sanctions against Manila.

Therefore, President Obama’s late-April visit to the Philippines is expected to coincide with landmark bilateral strategic and economic agreements, primarily to stave off a prospective Chinese reprisal.

Richard Javad Heydarian is a political science and international affairs lecturer at Ateneo De Manila University, and a policy advisor at the Philippine Congress.

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[1] Hua, Z. (2014, April `03). China’s position on the territorial disputes in the south china sea between china and the philippines. Retrieved from

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