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.
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.
Second, Beijing must “Finlandize” the states surrounding the South China Sea by bringing the semi-enclosed body of water into its orbit. The plan: use a suite of carrots and sticks to bring its much weaker “frenemies” — Vietnam, the Philippines, Malaysia, Indonesia, and Brunei — into line. Likewise, the split in ASEAN plays to China’s advantage. This strategy is by itself a powerful approach, and the first 150 years of U.S. domination and division sowed in South America provides an excellent roadmap for a gangly imperialist.
Finally, Beijing has to position itself to prevent interference by the two major maritime powers from outside the region that could stop it. Only the United States and India are positioned to check China’s ambition. The plan: bring pressure to bear within the region without risking great power naval war. In particular, avoid a clear-cut incident that might trigger the U.S. security agreements with Japan, Korea, or the Philippines. In pursuit of these three plans, China applies pressure across the spectrum of low-level coercion, but is careful not to cross the threshold of what is considered an “armed attack” in international law, and therefore trigger the right of individual and collective self-defense.
Read more: http://www.fpri.org/articles/2015/01/how-china-exploits-loophole-international-law-pursuit-hegemony-east-asia