CHINA TESTS THE LIMITS OF THE LAW OF THE SEA

Ilan Berman on February 4, 2013, in The Washington Times commented onthe Philippines confronting Chinese claims of sovereignty over the South China Sea. In late January, the government of the Philippines served official notice that it plans to bring China before an arbitral tribunal over the latter’s persistent violation of the United Nations Convention on the Law of the Sea — the multilateral treaty that serves as the touchstone for much of the world’s behavior on the high seas…Excerpts below:

The basis of Manila’s complaint, which was filed on Jan. 22, is straightforward. China and the Philippines are both signatories to the Law of the Sea treaty, which codifies internationally recognized parameters for the demarcation of territorial waters and exclusive economic zones. Manila ratified the treaty in 1984, two years after it was successfully negotiated. Beijing did so significantly later, in 1996. While the former has followed the agreement’s parameters, however, the latter most definitely has not.

Rather, recent years have seen China pursue an increasingly aggressive foreign policy line toward territories in Asia that it covets. The Chinese government effectively claims the lion’s share of the South China Sea as its sovereign territory.

Over the past two years, it has intensified its challenge to Japan’s sovereignty over a set of uninhabited islets in the East China Sea — islands that Tokyo has consistently claimed since 1895 and has administered since the 1970s over Chinese objections

China similarly has skirmished with South Korea over maritime fishing rights. Repeated incursions by Chinese fishing vessels into South Korea’s exclusive economic zone since 2010, the most recent one being last October, have led to clashes with Korea’s Coast Guard and deaths on both sides.

China and Vietnam have clashed as well over the disposition of the Spratlys and Paracels, small island chains in the South China Sea that Beijing maintains are an “indispensable” part of its territory. Beijing likewise has contested a key maritime boundary north of Borneo, infringing on Brunei’s maritime claims in the process.

Common to all of these disputes is an increasingly aggressive and adventurist China that is both willing and able to challenge the established legal and political order in the Asian Pacific.

Manila is now pushing back, albeit delicately. In referring its dispute with China to a U.N. Convention on the Law of the Sea tribunal, the Philippines is arguing that convention, and China’s accession to it, binds Beijing to a new, and significantly more modest, demarcation of Asia’s international waters — and that Beijing’s aggressive assertion of territorial claims therein both runs counter to established international law and imperils regional security.

…the outcome of Manila’s legal gambit will serve as a barometer of whether the international community is prepared to challenge China’s reconception of Asia’s prevailing legal order or whether the region, and the world, will be shaped by China’s version in the years ahead.

Ilan Berman is vice president of the American Foreign Policy Council.

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