Court verdict looms in Philippines v China dispute in South China SeaDateFilipino student activists hold mock Chinese ships to protest China's recent island-building and alleged militarisation of the disputed Spratly Islands. Photo: APIn the sleepy days between Christmas and New Year, an intrepid flotilla of young activists set out from Palawan Island in the Philippines for a tiny island in the Spratlys, to protest China's activities in the South China Sea.A creative approach, but it was successful, in its way.The Philippines government, while it noted their patriotism, did not endorse the voyage into what it now calls the West Philippine Sea.Filipino activists travelled to a tiny settlement in the Spratly Islands in December to protest against China's activities in the South China Sea. Photo: suppliedBut they got China's attention: "We are strongly dissatisfied with the actions and words of the Philippine side," said foreign ministry spokesman Lu Kang on December 28. "We once again urge the Philippine side to withdraw all its personnel and facilities from the Chinese islands and reefs it is illegally occupying."
In Australia, China's artificial island building is viewed uneasily. But in the Philippines, China's unilateral moves to claim a vast sweep of ocean that includes key trade routes, fishing grounds and mineral resources have electrified the archipelago nation of 100 million. It has made China relations a hot issue in the forthcoming presidential elections. Ninety-one per cent of Filipinos said in research last year by the Pew Centre that they were concerned or very concerned about the nation's territorial disputes with China .
"Anti-China sentiments in the Philippines are at a historic high, and it is serving as a new glue for patriotic mobilisation," says Richard Javad Heydarian, Manila-based academic and author of Asia's New Battlefield: The USA, China, and the Struggle for the Western Pacific. "There is a sense of Cold War 'anti-Red' paranoia, almost."
Filipinos and Vietnamese expatriates display placards during a rally at the Chinese Consulate to protest China's South China Sea activities. Photo: AP
Into this politically charged debate, and amid escalating regional tensions, an international tribunal convening in The Hague will soon hand down its decision in a landmark legal case that the Philippines has brought against China, seeking a definitive ruling under the law of the sea on the extent of its maritime entitlements.
China's response to an unfavourable decision in the David and Goliath style case will provide a strong signal of China's future intentions: as the ascendant superpower in Asia, will it dominate by force, or play by the rules?
China has stalled for over a decade on diplomatic efforts to manage overlapping territorial claims in the South China Sea, but the "last straw", says the Philippines' lead counsel, Paul Reichler from Washington DC law firm Foley Hoag, "was Scarborough Shoal".
A handout satellite image shows dredgers working at the northernmost reclamation site of Mischief Reef, part of the Spratly Islands, in the South China Sea, March 16, 2015. Photo: Supplied
"It's a very rich and important fishing ground 120 miles off the coast of Lusan and the Philippines had controlled the fishing in that area and permitted access for Chinese fishermen," Mr Reichler says, "but in April 2012 China unilaterally expelled the Philippines fishermen, and insisted the Scarborough Shoal was part of its sovereign territory. That was the latest manifestation in a series of Chinese expansionist moves."
"This convinced them that diplomacy was unsuccessful and they... saw a legal effort to vindicate their rights - as two parties to the Law of the Sea Convention - as somewhere they could compete with China on equal terms."
The Law of the Sea grants countries a 12 nautical mile territorial sea and an exclusive economic zone of 200 nautical miles from the coastline and governs territorial sea rights to various features described poetically as "rocks" and "low tide elevations". China's island-building on what the Philippines says are low-tide elevations appears to be an attempt to create territorial rights around features which, under the law, do not have them.
The Philippines v China in the Permanent Court of Arbitration over the South China Sea. Photo: Supplied
The U.S. Pacific Fleet Commander has warned of a possible arms race in the disputed South China Sea which could engulf the region, as nations become increasingly tempted to use military force to settle territorial spats instead of international law.
Commander Admiral Scott Swift urged nations, like China, to seek arbitration to settle maritime disputes.
"My concern is that after many decades of peace and prosperity, we may be seeing the leading edge of a return of "might makes it right" to the region," Swift said on Monday in a speech in Hawaii, according to a copy seen by Reuters.
"Claimants and non-claimants alike are transferring larger shares of national wealth to develop more capable naval forces beyond what is needed merely for self defence," Swift said.
Asked about Swift's comments, Chinese Foreign Ministry spokesman Hong Lei said: "Certain countries are exaggerating tensions in the South China Sea region, which is in reality to create confusion and meddle in the South China Sea. China is resolutely opposed to this."
China's Defence Ministry said certain countries were conducting "a big show of force" in the South China Sea.
"At the same time, (they are) wantonly expressing remarks to create tensions, in an attempt to sow confusion and muddy the waters," the ministry said in a faxed statement to Reuters.
China claims most of the South China Sea, through which more than $5 trillion of world trade ships every year, a fifth of it heading to and from U.S. ports.
Beijing is building seven man-made islands on reefs in the Spratly Islands, including a 3,000-metre-long (10,000-foot) airstrip on one of the sites, according to satellite imagery of the area.
"Even now, ships and aircraft operating nearby these features, in accordance with international law are subject to superfluous warnings that threaten routine commercial and military operations," Swift said, speaking at the Cooperative Strategy Forum to naval commanders from Japan, the Philippines, Indonesia and other countries.
A Chinese naval fleet is currently visiting Hawaii, including a destroyer and a frigate, according to China's Defence Ministry.
Vietnam, Malaysia, Brunei, the Philippines and Taiwan also claim parts of the South China Sea.
In October, the U.S. guided missile destroyer Lassen sailed close to one of China's man-made islands, drawing an angry rebuke from China and a shadowing patrol.
But the U.S. Navy is unlikely to carry out another patrol within 12 nautical miles of Chinese-built islands in the South China Sea this year as officials had initially suggested, U.S. defence officials say.
Australia's Defence Department said one of its aircraft was involved in "a routine maritime patrol" over the South China Sea from Nov. 25 to Dec. 4. The BBC reported the aircraft was "exercising international freedom of navigation rights".
"There is no problem with freedom of navigation and overflight in the South China Sea," Hong said when asked about the Australian patrol.
"Countries outside the region should respect other country's sovereignty and not deliberately complicate the issue."
China has been building up its civilian infrastructure in the South China Sea, and over the weekend, opened its first school there, on Woody Island in the Paracels, state media said.
In a challenge to China's island building program, Manila has asked the Permanent Court of Arbitration in The Hague to affirm its right to areas within 200 nautical miles of its coastline, under the terms of a U.N. convention.
"The Arbitration Tribunal's case between the Philippines and China could become the latest opportunity to demonstrate lawful access to regional prosperity for all nations," Swift said.
Beijing so far has rejected the court's jurisdiction and has boycotted the hearing. Rulings are supposed to be binding on member countries, which include China. But the tribunal has no powers of enforcement and its verdicts have sometimes been ignored.
"For the Philippines, arbitration will clarify what is ours, specifically our fishing rights, rights to resources and rights to enforce laws within our exclusive economic zone," says Jim San Agustin, charge d'affaires at the Philippines embassy in Canberra. "For the rest of the international community, the clarification of maritime entitlements will assure peace, security, stability and freedom of navigation in the South China Sea."
About a third of the world's trade ships through the area and with last month's dramatic reports that China had deployed missiles to Woody Island in the Paracels, a nearby island chain to the Spratlys, there is growing concern about China's long-term intentions.
In this arbitration, most experts think the Philippines will win. But despite being an active participant in negotiating the law of the sea, China has rejected the tribunal's jurisdiction. Its rhetoric of "indisputable sovereignty" suggests Beijing sees its claims to the South China Sea as non-negotiable. (The Chinese government did not wish to comment for this article.)
There are at least two incompatible versions of reality here, and not just over sovereignty. The contradiction goes to the heart of what sort of superpower China will be. The more pessimistic, hawkish version tends to view China's behaviour as evidence of secret intent to dominate the region by force; while others - optimists, multilateralists, international lawyers - point out that China has benefited enormously from the rules-based order and international law, and will see considerable value in continuing to support it.
The big question is how China might react to a legal loss, in a major test of these competing versions of reality.
Almost no-one thinks China would dismantle its artificial islands. It is probably doubtful countries would lay sanctions on China for continuing to defy any order. But there is a sense that China's moral heft would be undermined by a loss, and even an outside chance that future freedom of navigation exercises could have lower expectations of challenge from Beijing.
China, Trying to Bolster Its Claims, Plants Islands in Disputed Waters
A Philippine surveillance photo shows an island that China has created on a reef among the disputed Spratly Islands in the South China Sea.CreditPhilippine Department of Foreign Affairs, via Associated Press
BEIJING — The islands have all that one could ask of a tropical resort destination: white sand, turquoise waters and sea winds.
But they took shape only in the last several months, and they are already emerging as a major point of conflict in the increasingly bitter territorial disputes between China and other Asian nations.
China has been moving sand onto reefs and shoals to add several new islands to the Spratly archipelago, in what foreign officials say is a new effort to expand the Chinese footprint in the South China Sea. The officials say the islands will be able to support large buildings, human habitation and surveillance equipment, including radar.
The island-building has alarmed Vietnam, the Philippines and other Southeast Asian nations that also claim sovereignty over the Spratlys. Since April, the Philippines has filed protests to China against land reclamation at two reefs. This month, the Philippine president, Benigno S. Aquino III, criticized the movements of Chinese ships that he said could be engaged in island-building at two other sites.
South China Sea
Site of new island-building
Johnson South Reef
Southwest Cay Island
Fiery Cross Reef
Second Thomas Shoal
Chinese actions have also worried senior United States officials. 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.
Critics say the islands will allow China to install better surveillance technology and resupply stations for government vessels. Some analysts say the Chinese military is eyeing a perch in the Spratlys as part of a long-term strategy of power projection across the Western Pacific.
Perhaps just as important, the new islands could allow China to claim it has an exclusive economic zone within 200 nautical miles of each island, which is defined in the United Nations Convention on the Law of the Sea. The Philippines has argued at an international tribunal that China occupies only rocks and reefs and not true islands that qualify for economic zones.
“By creating the appearance of an island, China may be seeking to strengthen the merits of its claims,” said M. Taylor Fravel, a political scientist at the Massachusetts Institute of Technology.
China says it has the right to build in the Spratlys because they are Chinese territory. “China has indisputable sovereignty over Nansha Islands,” a Foreign Ministry spokeswoman, Hua Chunying, said last month, using the Chinese name for the Spratlys. Chinese officials also contend that Vietnam and the Philippines have built more structures in the disputed region than China, so China is free to pursue its projects.
But analysts note that other countries did not build islands, and that they generally erected their structures before 2002, when China and nine Southeast Asian nations signed the Declaration on the Conduct of Parties in the South China Sea. One clause says the parties must “exercise self-restraint in the conduct of activities” that would escalate tensions and must refrain from inhabiting any currently uninhabited land features. Although the agreement is nonbinding and does not explicitly ban building on the islands or the creation of new ones, some analysts say those activities are covered.
“It’s changing the status quo,” said Carlyle A. Thayer, an emeritus professor of politics at the University of New South Wales in Australia. “It can only raise tensions.”
Since January, China has been building three or four islands, projected to be 20 to 40 acres each, one Western official said. He added that there appeared to be at least one installation intended for military use, and that the new islands could be used for resupplying ships, including Chinese maritime patrol vessels.
Last month, China set off alarms in the region and in Washington when a state-owned oil company placed an exploratory oil rig farther north in the South China Sea, by the contested Paracel Islands near Vietnam. The rig ignited diplomatic strife and violent anti-China protests in Vietnam.
But the island-building “is bigger than the oil rig,” said the Western official, who spoke on the condition of anonymity to avoid upsetting diplomatic discussions. “These islands are here to stay.”
Officials say Johnson South Reef, which China seized in 1988 after killing about 70 Vietnamese soldiers or sailors in a skirmish, is the most developed of the islands so far. “It’s Johnson Island now; it’s not Johnson Reef anymore,” the Western official said. Filipino officials released aerial photographs last month showing structures and a large ship.
Chinese-made structures stand on the Johnson South Reef. Photo: AP
China is looking to expand its biggest installation in the Spratly Islands into a fully formed artificial island, complete with airstrip and sea port, to better project its military strength in the South China Sea, a Chinese scholar and a Chinese navy expert have said.
The planned expansion on the disputed Fiery Cross Reef, if approved, would be a further indication of China's change of tack in handling long-running sovereignty disputes from a defensive stance to an offensive one, analysts said. They said it was seen as a step to the declaration of an air defence identification zone.
The Philippines last month protested against China's reclamation activities at nearby Johnson South Reef, site of a 1988 skirmish between the Chinese and Vietnamese navies that was triggered by China's occupation of Fiery Cross Reef.
With recent developments in the South China Sea having again focused the international spotlight on China, the analysts warned reclamation at the Fiery Cross atoll - which China, the Philippines and Vietnam all claim - would further strain Beijing's relations with neighbours.
The proposal to build an artificial island there had been submitted to the central government, said Jin Canrong , a professor of international relations at Renmin University in Beijing. The artificial island would be at least double the size of the US military base of Diego Garcia, a remote coral atoll occupying an area of 44 square kilometres in the middle of the Indian Ocean, Jin added.
The reef currently houses Chinese-built facilities including an observation post commissioned by Unesco's Intergovernmental Oceanographic Commission.
Li Jie, a naval expert from the Chinese Naval Research Institute, said the expanded island would include the airstrip and port. After the expansion the island would continue to house the observation post and to provide military supplies and assistance, he said.
A retired People's Liberation Army senior colonel, who spoke on condition of anonymity, said the construction of a landing strip on Fiery Cross Reef would allow China to better prepare for the establishment of an air defence identification zone over the South China Sea.
Watch: What is the East China Sea dispute about?
Beijing's declaration of such a zone over the East China Sea in December prompted concerns among Southeast Asian countries that a similar arrangement could be imposed in the South China Sea.
Fiery Cross Reef, known as Yongshu in China, Kagitingan in the Philippines and Da Chu Thap in Vietnam, is close to sea lanes and could serve as a strategic naval staging post, said Alexander Neill, a Shangri-La Dialogue senior fellow.
Jin said consideration of whether and how to go ahead with the Fiery Cross Reef proposal would depend on progress on reclamation at Johnson South Reef.
"It's a very complicated oceanic engineering project, so we need to learn from the experience" on Johnson South, Jin said.
Late last month, renditions of a proposed artificial island were circulated among Chinese media. Citing a report posted on the website of the Shanghai-based China Shipbuilding NDRI Engineering, the Global Timessaid the unidentified artificial island could include a landing strip and a 5,000-tonne berth.
Zhang Jie, an expert on regional security with the Chinese Academy of Social Sciences, said China had long been researching island reclamation. Institutes and companies had drafted various designs over the past decade, said Zhang, adding that she had attended deliberation of one proposal years ago.
Building an artificial island ... would cause very severe negative impactsZHANG JIE, SECURITY EXPERT
"We had the ability to build artificial islands years ago, but we had refrained because we didn't want to cause too much controversy," she said.
However, this year had seen a "turning point" in which Beijing appeared to be making more offensive moves in the area, said Zhang, citing the recent deployment of an oil rig to disputed waters near Vietnam.
"Building an artificial island can no doubt provide supplies to ships and oil rigs nearby, but this would also cause very severe negative impacts in the region."
Such moves, she added, would further deepen mistrust among China's neighbours and cause instability in the region.
The Ministry of Foreign Affairs and Ministry of Defence in Beijing did not respond to requests for comment.
This article appeared in the South China Morning Post print edition as China plans to make disputed reef a vast island
The Philippines' lawyer sees cause for optimism.
"The tribunal can not forcibly make China do anything," Mr Reichler concedes. "The tribunal doesn't have an army or a police force... But that's true of all international arbitral tribunals, including the International Court of Justice. Yet in 95 per cent of the cases the states accept the result, even if they're unhappy. They comply with the judgement because there are strong disincentives to defy a judgment of an international tribunal. If a state does that then it becomes an international outlaw and creates a very negative image for itself."
Professor Heydarian agrees: "China has the option, of course, of completely ignoring the result, but that will carry huge soft power costs. There is just no way for China, which spends an estimated $10 billion annually on soft power initiatives like media propaganda, to claim leadership and authority in Asia but at the same time completely ignore a legal verdict by a third party, composed of leading maritime law experts, formed under the aegis of international law. China will look like an outlaw."
It will be up to the US - ironically one of the handful of nations not party to the Law of the Sea convention - to decide whether to pursue more 'freedom of navigation' exercises through the disputed waters following the tribunal's decision.
Mr Reichler sees a legal victory for the Philippines as part of a long game. "It may be that China's first reaction [to a judgment in favour of the Philippines] reflects national pride more than national interest. The way to judge its post-judgment conduct is not by its initial reaction, but how its behaviour changes over the course of the next six months or year after the judgment is issued.
"I think it's inevitable that China will eventually feel that its own interests demand it bring itself more or less into conformity with the judgment through a negotiated settlement with the Philippines."