Maritime Incidents in the South China Sea: Measures of Law Enforcement or Use of Force?

Abstract

China has sought to extend its control over the South China Sea at the expense of neighboring countries. In pursuing its goals, Beijing adopts a 'power and law' approach, claiming extensive territorial and maritime rights in contravention of the UN Convention on the Law of the Sea and asserting these rights through coercive action in disputed waters. A key element of China’s strategy involves the use of coast guard and maritime militia vessels in an effort to portray its operations as measures of law enforcement, rather than displays of coercive power.

This article argues that the Chinese narrative of law enforcement cannot be sustained when it comes to recent incidents at the Second Thomas Shoal. These incidents do not qualify as measures of law enforcement, but in some cases amount to uses of force in breach of Article 2(4) of the UN Charter. For the Philippines and third States, invoking Article 2(4) would bring potential benefits and risks. This article examines the most significant ones and concludes that while invoking Article 2(4) is not going to make China give up its exorbitant maritime and territorial claims in the South China Sea, it may impose reputational costs and preserve the status quo in disputed waters by deterring Beijing and compelling it to accept setbacks.