Foreign Relations & International Law

Water Wars: a “Suspicious” Flotilla that May “Not Mean Anything”

Jared Dummitt, Eliot Kim
Friday, August 18, 2017, 3:00 PM

Some Philippine Leaders Herald a New Era of Cooperation with China, while Others Warn of a Buildup of Chinese Naval and Civilian Vessels near Philippine territory

Satellite photograph showing Chinese ships near Thitu (Pag-asa) Island (Photo: AMTI)

Published by The Lawfare Institute
in Cooperation With

Some Philippine Leaders Herald a New Era of Cooperation with China, while Others Warn of a Buildup of Chinese Naval and Civilian Vessels near Philippine territory

Satellite photograph showing Chinese ships near Thitu (Pag-asa) Island (Photo: AMTI)

The week began with signs that the détente between the Philippines and China was coming along smoothly. Philippine Defense Minister Delfin Lorenzana told a congressional hearing on Monday that China had promised to stop occupying new features in the South China Sea and to stop building new installations in the Scarborough Shoal. According to Lorenzana, the two countries had reached a “modus vivendi,” or a “way of getting along,” in the South China Sea that would involve an end of China’s building projects.

The next day, Foreign Affairs Secretary Alan Peter Cayetano told the Philippine House of Representatives that the government is considering working with China to develop petroleum resources in the disputed waters between the two countries. Cayetano said that the project, if confirmed, would not cede any Philippine territory or sovereignty to China – perhaps a response to earlier remarks by Senior Justice Antonio Carpio that an oil and gas joint venture in Philippine territory would endanger the country’s sovereignty. “I will assure you, any legal framework will conform with local laws and the Constitution,” Cayetano said.

But the very same day, Congressman Gary Alejano reported that a number of Chinese PLA Navy ships had been deployed near Thitu, or Pag-asa, Island, a large island in the Spratly Islands that the Philippines occupy. According to Alejano’s “military sources,” a pair of Chinese frigates, a coast guard ship, and some fishing ships affiliated with China’s maritime militia were located a few miles north of Thitu Island. In a press conference, the Congressman described the ships as “suspicious,” and said: “I call on the Philippine government officials to be transparent in what is happening in the West Philippine Sea. We must assert our rights in the midst of talks with China.”

On Wednesday, Secretary Cayetano responded to Congressman Alejano’s report: he could not confirm the presence of the Chinese ships, but added that “[t]he presence of ships alone does not mean anything…the situation in the area is very stable.” Cayetano said that China was not an enemy and should not be treated as such. “It’s good we have people like Congressman Alejano who reminds us to monitor the situation,” he said. “But there’s a thin line between informing us and stirring up the situation.” Responding to Cayetano’s remarks, Alejano expressed dissatisfaction with Cayetano for “brushing aside the unusual and suspicious presence of several huge military and Chinese ships…in the vicinity of our largest island.”

Though neither Lorenzana or Cayetano confirmed the presence of the ships, Alejano released photographs of what he claimed were Chinese ships operating near Thitu Island. The Washington-based Asia Maritime Transparency Initiative (AMTI) released satellite images that seem to indicate that Chinese naval and civilian waters were indeed present in the area. According to AMTI’s report, “On that day, there were nine Chinese fishing ships and two naval/law enforcement vessels visible near Thitu…with others possibly under cloud cover. It is impossible to know if any of those ships might be affiliated with the maritime militia, but at least two appear to be actively fishing…” The report added that the flotilla’s presence was “highly provocative” and speculated that Beijing might have intended to “dissuade Manila from planned construction on Thitu.”

In Other News…

United States

On Monday, Chairman of the Joint Chiefs of Staff Gen. Joseph Dunford arrived in Beijing for talks with top Chinese military leaders. At the opening of the dialogue, Gen. Dunford said that the two sides intended to discuss “difficult issues where we will not necessarily have the same perspective,” but that they “shared a commitment to work through these difficulties.”

On Tuesday, Gen. Dunford met with PLA Gen. Fang Fenghui to sign an agreement announcing a new communication mechanism between the two militaries. According to U.S. Joint Staff officials, the agreement would “enable us to communicate to reduce the risk of miscalculation” and to mitigate potential crises. The two sides agreed to work together to develop the framework, with the first meeting scheduled for November. Few details were released about how the mechanism would work or when it would be used, but both sides spoke of the need to develop trust and openness. Gen. Dunford said that crisis communications between the United States and China is critical, but that avoiding miscommunication was “the minimum standard.” Rather than simply working to avert a crisis, he said, “We should also try to see areas to cooperate.” Gen. Fang agreed, stating that the American and Chinese armies could work together to cooperate as partners.


Meanwhile, the United States was deepening its military ties with Japan as well. The two countries commenced a series of joint military operations on and around the Japanese island of Hokkaido on August 10. On Tuesday, the two countries’ air forces conducted drills near the disputed Senkaku/Diaoyu Islands, which Japan occupies but China and Taiwan claim. In a statement, the U.S. Pacific Air Forces said, “These training flights with Japan demonstrate the solidarity and resolve we share with our allies to preserve peace and security in the Indo-Asia-Pacific.”


The Deepsea Metro I, a drilling ship contracted by Vietnam’s PetroVietnam and the Spanish firm Repsol to drill for oil in disputed waters claimed by China, arrived near the Malaysian port of Labuan on Monday. The ship was last reported at the drilling site on July 30. Vietnam canceled its plans to explore for petroleum in the disputed waters under intense pressure from China. Gregory Polling, the director of the AMTI, argued that the departure of the drilling ship signaled that Vietnam was unable to stand up to China without support from the United States or the regional powers of the South China Sea.


Taiwan placed its military on high alert after the Chinese air force conducted operations around – and sometimes within – Taiwan’s air defense identification zone over the weekend and on Monday. Taiwanese Defense Ministry Spokesman Chen Chung-ji stated, “Our air force and navy will stay on high alert to prevent them from intruding upon our territorial waters or airspace or even engaging in hostility.” The drills included bombers and surveillance aircraft and marked the eighth time that Chinese military aircraft have trained near Taiwan since July.

Analysis, Commentary, and Additional Information

Mark Valencia argues in the South China Morning Post that China and the United States should develop guidelines for naval operations off of each other’s’ shores. According to Valencia, the two sides have reached a sort of settled pattern in which the United States conducts Freedom of Navigation Operations (FONOPs) in Chinese-claimed waters, and Beijing expresses disapproval. However, he says, this status quo is not stable. For example, if China tried to interfere with the American patrols, or if Japanese naval forces joined the U.S. Navy’s FONOPs, a conflict could easily break out. To avoid this outcome, Valencia argues that the two sides should work together to establish norms and rules governing how their navies will operate in contested waters.

Writing in The Diplomat, Tuan N. Pham claims that China’s aggressive naval and air operations in the South China Sea are increasingly at odds with its own interpretations of international maritime law. He points out that Beijing regularly claims that intelligence, surveillance, and reconnaissance flights conducted by the United States and other countries in China’s Exclusive Economic Zone (EEZ) are unlawful, while the People’s Liberation Army Navy (PLAN) increasingly conducts similar operations in other countries’ EEZs. Pham predicts that “[a]s the PLAN continues to operate in distant waters and in proximity to other nations’ coastlines, Beijing may have no choice but to eventually address the inconsistency between policy and operations — and either pragmatically adjust its standing policy or continue to assert its untenable authority to regulate military activities in its EEZ. The former is more likely, while the latter carries more risks in terms of the legal validity of its own maritime sovereignty claims, international credibility, and world standing.”

Robert Manning of the Atlantic Council and James Przystup of the National Defense University argue in Foreign Policy that American politicians and commentators overstate the importance of the South China Sea to America’s national interests. They argue that America’s interests in the South China Sea have always been limited to freedom of navigation and freedom of maritime commerce. On the other hand, “Beijing’s interest in the South China Sea is political and strategic in nature,” key to both the legitimacy of the Communist Party and China’s overall security. Manning and Przystup conclude that the United States should acknowledge that, due to this “asymmetry of respective Chinese and U.S. geopolitical interests,” it must accept a larger Chinese role in the South China Sea.

Water Wars is our weekly roundup of the latest news, analysis, and opinions related to ongoing tensions in the South and East China Seas. Please email Sarah Grant with breaking news, relevant documents, or corrections

Jared Dummitt is a second-year student at Harvard Law School. Prior to law school, he worked as a legal analyst in the New York and Hong Kong offices of Kobre & Kim LLP, a U.S. law firm. He graduated from the University of Chicago with a B.A. in 2013.
Eliot Kim is a JD candidate at Harvard Law School. Prior to law school he spent three years living in mainland China, including a year studying international relations at the Hopkins-Nanjing Center. Eliot is currently a member of Harvard's International Commercial Arbitration Moot Court Team and has previously been a research intern at the Congressional-Executive Commission on China.

Subscribe to Lawfare