How China Exploits a Loophole in International Law in Pursuit of Hegemony in East Asia


How is China pursuing its territorial claims in the South and East China Seas while also avoiding overt confrontations with the US and other regional powers? According to James Kraska, Beijing’s coercive actions fall short – quite intentionally – of what constitutes an ‘armed attack’ in international law.

By James Kraska for Foreign Policy Research Institute (FPRI)

This E-Note was originally published by FPRI in January 2015.

Who “minds the gap” in the South China Sea? The gap, that is, created in international law concerning the use of coercion or aggressive force and the right of self-defense of victim states. China exploits this gap in the international law on the use of force to compel its neighbors to accept Chinese hegemony in East Asia. By using asymmetric maritime forces – principally fishing vessels and coast guard ships – China is slowly but surely absorbing the South China Sea and East China Sea into its domain. And it does so by exploiting a loophole in international law created by the International Court of Justice (ICJ) that makes it impossible for regional states to respond effectively. This legal dimension of the international politics of the maritime disputes in East Asia is not widely understood, but it is at the core of Chinese strategy in the region.

China’s Strategy

In pursuing its grand design, China must overcome resistance from three groups of antagonists. First, China has to overwhelm Japan and South Korea in the East China Sea and Yellow Sea. The plan: divide and conquer. Make sure Japan and Korea dislike each other more than they dislike China. So long as Japan and South Korea nurse historical grievances, China reaps the gain.


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