Foreign Relations & International Law

China Again Uses Force to Bully Its Neighbors

Raul "Pete" Pedrozo
Friday, December 10, 2021, 8:01 AM

Continued Chinese interference with the resupply of the Sierra Madre contingent could have unintended consequences that destabilize the region and potentially result in an international armed conflict.

A view on the South China Sea. (Photo by U.S. Navy)

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On Nov. 16, three China Coast Guard (CCG) vessels blocked and used water cannons to prevent two Philippine vessels from delivering food supplies to the Philippine marine contingent on board the BRP Sierra Madre at Second Thomas Shoal. Although this is not the first time China has illegally interfered with the resupply of the Second Thomas Shoal outpost, China’s new Maritime Police Law empowers the CCG to stop (or demolish) the construction of foreign structures or other installations on land features within China’s claimed sea areas. The Nov. 16 incident is the latest example demonstrating China’s unwillingness to conform to the rules-based international order that ensures activities at sea are conducted safely and professionally.

The Philippine Navy intentionally grounded Sierra Madre on Second Thomas Shoal in 1999 and has maintained a small detachment of marines on board the ship, which is resupplied at regular intervals. China regards the shoal as Chinese territory, as it falls within the infamous “nine-dash line,” and has repeatedly complained about the presence of the ship and interfered with the resupply of the outpost on several occasions. The United States backed its treaty ally in 2014, condemning China’s provocative interference with the Philippine logistics vessels.

In 2016, an international arbitral tribunal ruled that there was no legal basis for China’s claim to historic rights to resources within the sea areas falling within the nine-dash line. The tribunal also found that Second Thomas Shoal (Ayungin Shoal) is a low-tide elevation located within the exclusive economic zone and continental shelf of the Philippines and is therefore not capable of appropriation by China. The tribunal’s ruling is final and binding on China, but Beijing has refused to comply with the decision. 

Philippine Secretary of Foreign Affairs Teodoro Locsin immediately condemned the actions of the three CCG vessels “in the strongest terms.” Based on the tribunal’s ruling, it is clear that the CCG’s interference with the supply vessels is illegal and that China lacks any law enforcement jurisdiction over Second Thomas Shoal or its surrounding waters. Locsin vowed that the Philippines would continue to resupply its troops on board the Sierra Madre and would not ask permission to do what it needs to do to exercise its sovereignty, sovereign rights and jurisdiction.

The U.S. State Department also condemned China’s interference with the resupply of the Sierra Madre, indicating that the CCG’s actions “threaten[] regional peace and stability, escalate[] regional tensions, infringe[] upon freedom of navigation in the South China Sea as guaranteed under international law, and undermine[] the rules-based international order.” The U.S. statement additionally reaffirmed that “an armed attack on Philippine public vessels in the South China Sea would invoke U.S. mutual defense commitments under Article IV of the” U.S.-Philippines Mutual Defense Treaty.

Thus, continued Chinese interference with the resupply of the Sierra Madre contingent could have unintended consequences that destabilize the region and potentially result in an international armed conflict. Under the U.S.-Philippines Mutual Defense Treaty, an armed attack in the “Pacific Area” on either of the parties triggers the collective self-defense obligations under the treaty. An armed attack under the treaty includes, inter alia, an attack on either party’s armed forces, public vessels or aircraft in the Pacific. In 2019, then-Secretary of State Mike Pompeo reassured the Philippines that the South China Sea is part of the Pacific and that any armed attack on Philippines forces, aircraft or public vessels in the South China Sea would trigger the mutual defense obligations under Article IV of the Mutual Defense Treaty.

In 2021, Secretary of State Antony Blinken again assured the Philippines that the Mutual Defense Treaty applies to the South China Sea. That interpretation of the Mutual Defense Treaty was reaffirmed at the 9th U.S.-Philippines Bilateral Strategic Dialogue in November. Although the use of a water cannon may not meet the traditional criteria for a “grave use of force” that constitutes an “armed attack” as defined by the International Court of Justice, the United States considers that any threat or use of force triggers the right of self-defense under the U.N. Charter. Given that the Mutual Defense Treaty is a bilateral agreement between the United States and the Philippines, the parties could agree that the use of a water cannon, coupled with past Chinese threats and aggressive acts against the Philippines, is tantamount to an illegal use of force that would trigger the collective self-defense obligations under the treaty.

Therefore, if the CCG uses armed force to expel the Philippine marines on board the Sierra Madre or attacks a Philippine Navy or another government vessel that was attempting to resupply the outpost, Malacañang could invoke the Mutual Defense Treaty. That would place the United States in an unenviable position of coming to the defense of the Philippines to preserve its credibility as a dependable treaty ally, something the Obama administration failed to do in 2012 when China took de facto control over Scarborough Shoal. Although the Scarborough Shoal incident did not involve a use of force, the U.S. failure to support the Philippines during and after the standoff at the shoal was a contributing factor to the February 2020 cancellation of the U.S.-Philippines Visiting Forces Agreement, which was fully restored in 2021. A repeat performance by the Biden administration would cause long-term, irreparable damage to the alliance.

Since 2016, the Philippines has filed 211 diplomatic protests with China over the South China Sea—153 in 2021 alone. China has ignored these protests, as it continues to intimidate and bully the Philippines and other South China Sea claimants from lawfully accessing their maritime resources. It is therefore evident that words alone will not resolve this festering dispute. So, the question is: Short of an armed conflict, which is in no state’s interests, what will get China’s attention to stop its malign behavior and comport itself as the great power it aspires to be? Apart from imposing sanctions, which would be difficult to do given China’s economic prowess, two things come to mind.

First, the U.S. statement in November is a good start, but the message needs to be more direct and emphatic. Washington should inform Beijing that the United States will consider any action by the People’s Liberation Army Navy, the CCG or the People’s Armed Forces Maritime Militia directed at a Philippine public resupply ship that is unsafe and places the Philippine ship and its crew in extremis to be an attack under the Mutual Defense Treaty. This would include Chinese attempts to ram Philippine resupply vessels or use water cannons against them.

Second, European nations, Canada, Australia, New Zealand, North Asian nations and the United States should boycott the Winter Olympics in Beijing. The boycott should be lifted only if China agrees, pursuant to a U.N. Security Council resolution, to comply with the South China Sea Arbitration Award and stop interfering with the legitimate resource rights of the other South China Sea claimants. Although China is legally bound to comply with the 2016 decision of the arbitral tribunal, the compulsory dispute settlement provisions of the U.N. Convention on the Law of the Sea do not contain an enforcement mechanism. The only way to enforce a decision is through the Security Council.

The South China Sea does not belong to China, and the international community cannot allow Beijing to continue to intimidate its neighbors, steal their resources and treat the South China Sea as its maritime empire. Freedom of seas and the unimpeded flow of maritime commerce is essential for global peace and security and the prosperity of all nations. These navigational rights and freedoms are best protected by continuing to observe the rules-based international order that has benefited all nations.

Captain Raul (Pete) Pedrozo, U.S. Navy (Ret.), is the Howard S. Levie Chair on the Law of Armed Conflict and Professor of International Law in the Stockton Center for International Law at the U.S. Naval War College. He was a Peer Reviewer for the International Committee of the Red Cross Commentary of 2017 on the Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members Of the Armed Forces at Sea (1949) and is currently one of two U.S. representative to the International Group of Experts for the San Remo Manual on the Law Applicable to Armed Conflicts at Sea, produced by the International Institute of Humanitarian Law. Prior to his retirement from the Navy he served as the senior legal advisor to Commander, U.S. Pacific Command and was a Special Assistant to the Under Secretary of Defense for Policy, Office of the Secretary of Defense. Pedrozo is co-author of the forthcoming, "Emerging Technology and the Law of the Sea" (Oxford University Press).

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