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BERMAN: China tests the limits of the law of the sea

The Philippines confronts Beijing’s claims of sovereignty over the South China Sea

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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. The move garnered only limited media coverage, but it provides a telling snapshot of the struggle that is now under way for the shape of Asia.

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, and has of late engineered a series of confrontations in support of this policy.

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. Just last month, China sent military aircraft into the airspace over the disputed territory (known as the Senkaku Islands in Japan and the Diaoyu islands in China), forcing Japan's military to scramble fighter jets in response.

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.

With the Philippines, China's dispute centers on a series of shoals in the South China Sea. There, China recently has "laid claim to, occupied and built structures on certain submerged banks, reefs and low tide elevations" that are "parts of the Philippine continental shelf, or the international seabed," the Philippine government has maintained.

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. Beijing has done so based on historic claims dating back centuries (and formally laid out some 65 years ago), which grant China sweeping sovereignty over much of Asia's waters -- to the detriment of its neighbors.

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. Beijing, for its part, begs to differ, citing a 2006 declaration that it made essentially exempting itself from the convention's coverage in the settlement of disputes arising from its territorial claims.

For the moment, the battle is localized to the courtroom, where coming months will see Manila and Beijing spar over whether China's regional claims are, in fact, legitimate. The battle is momentous wherever it might be held, though. At stake is nothing less than the shape of the international legal order in Asia, which China is busy refashioning to best suit its expanding interests and growing geopolitical ambitions.

As such, 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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