Why Is China Giving the Philippines the Cold Shoulder?

Embroiled in a nasty legal fight over the South China Sea, Beijing is putting Manila on notice -- even in the midst of tragedy.

In the wake of the devastating Typhoon Haiyan, international aid is flowing to the Philippines. The United Nations released $25 million from an emergency fund and the United States pledged $20 million in immediate relief. But, for the moment at least, precious little assistance is coming from the region's behemoth. The Chinese authorities announced a paltry $100,000 in humanitarian aid (along with another $100,000 via the Red Cross Society of China). Beijing's cold shoulder fits with a broader diplomatic isolation of Manila, which China has shepherded. In recent months, China's foreign minister has met with all 10 counterparts from the Association of Southeast Asian Nation (ASEAN) member-states -- except the Philippines. A key point of friction has been the Philippines' willingness to challenge Beijing's maritime claims.

The most dangerous flashpoint came in the spring of 2012, when vessels from the Philippines and China engaged in a weeks-long standoff over waters near the Scarborough Shoal, a rocky formation little more than 100 miles from the Philippines' Subic Bay, the once (and perhaps future) home of a U.S. Navy base. The incident began when Filipino sailors boarded a Chinese vessel fishing in what the Philippines considers its own maritime economic zone. After an unnerving naval escalation, the confrontation ended a few months later with China in effective control of the disputed waters. 

The incident revealed just how badly the Philippines is outmatched at sea. Partly in response, the Philippines wants to upgrade its military cooperation with the United States. "We stand ready to tap every resource, to call on every alliance to do what is necessary to defend what is ours," Filipino Foreign Minister Albert del Rosario said in August. The government is also snapping up second-hand vessels to bolster its own fleet. But these moves won't change the archipelago's lack of wherewithal to challenge China's claims. Beijing boasts an expanding and modernizing naval fleet, and in August, Chinese president Xi Jinping inspected the country's first aircraft carrier. A Ministry of National Defense spokesman said "there will surely be more in the future."

But if on the high seas Manila is at a profound disadvantage, the courtroom may level the playing field. In the realm of international law, the power balance is often less tilted, and that is where the Philippines has turned. In January, the Philippines foreign minister informed China's ambassador that the country was filing suit against China. Beijing angrily rejected the claim and has vowed not to participate in the case, insisting on its "indisputable sovereignty" in the area. But the case is moving forward nonetheless, and every state with an interest in Asia's troubled waters is watching closely. For all Beijing's bluster, the Philippines stands a good chance of denting China's maritime claims.

The Chinese claims in the South China Sea are embodied in the now notorious "nine-dash line" that China first formally presented internationally in 2009. The gigantic U-shape marks what China views as its maritime entitlements in the area. It encompasses nearly 90 percent of the South China Sea, including rich fishing grounds and areas with potential oil, gas, and mineral deposits. China claims exclusive rights in waters only a few dozen miles from the Philippines, Malaysia, and Vietnam -- three nations which all object to China's claims.

The foundations for the nine-dash line are convoluted, and lean as much on ancient history as they do on modern law. Two Chinese scholars recently traced Chinese influence in the sea as far back as the 5th century A.D. Through its legal case, the Philippines aims to expose the gap between these venerable claims and the 1982 U.N. Convention on the Law of the Sea (UNCLOS), which provides rules for what states can claim as territorial seas (which extend 12 miles from shore) and as "exclusive economic zones" (which normally extend 200 miles).

China might simply insist that UNCLOS doesn't apply, but for the inconvenient fact that China (unlike the United States) has ratified the treaty. Even less convenient from Beijing's perspective, joining UNCLOS committed China to an international arbitration process for disputes related to the agreement. With its January filing, the Philippines set that process in motion, and a group of experienced arbitrators has assembled to review the case.  

It's no surprise the Philippines was the only aggrieved state willing to sue the Asian behemoth: it is by far the most assertive of the smaller countries with an interest in the South China Sea. In 2012 it pushed hard for a statement by ASEAN on the maritime disputes, leading to the group's embarrassing failure to release a joint statement at the conclusion of that year's summit -- and plenty of hard feelings on all sides.

Diplomatic support for the case in the region -- even among states angered by China's claims -- has been muted, because of concerns that the Philippines arbitration "might have negative repercussions for ASEAN-China relations," wrote Ian Storey, a senior fellow at the Institute of Southeast Asian Studies. Wary of Beijing's influence, most ASEAN states have called blandly for a peaceful resolution of the dispute. If the Philippines had hoped that fellow skeptics of the nine-dash line would line up behind their lawsuit, they have been disappointed.

China's political and economic weight accounts for the diplomatic reticence, but the complexity of the legal issues may also be discouraging states from rallying to Manila's side. Chinese officials -- and some independent maritime law scholars -- argue that the international arbitrators have no jurisdiction. They point in particular to a set of restrictions on arbitration that China announced in 2006. These restrictions, which China is within its legal rights to assert, preclude arbitrations related to maritime "delimitation," military activities, certain types of historical claims, and questions of sovereignty over territory.  

At first glance, those restrictions poke several holes in the Filipino case. University of Bonn scholar Stefan Talmon wrote in May that Manila's claims "cannot be decided without deciding on matters outside the jurisdiction of the tribunal." The prohibition on arbitrators considering "historic bays and titles" -- one of the categories UNCLOS allows states to exclude from arbitration -- seems almost designed to immunize Beijing's history-based claims in the South China Sea.

The Philippines is convinced, however, that it has found a way through these jurisdictional obstacles. The government signed up a veteran litigator of maritime disputes to fashion the complaint and argue their case. Washington D.C.-based lawyer Paul Reichler has previously represented Nicaragua, Bangladesh, Mauritius, Guyana, and Croatia in disputes involving maritime issues. When I spoke to him recently, he walked me through Manila's case and explained why none of China's restrictions on jurisdiction should prevent the arbitrators from ruling on the case.

He dealt first with the question of whether China's alleged historical rights in the South China Sea will prevent the arbitrators from considering the case, insisting that the UNCLOS notion of "historic title" has a very narrow meaning. "States can't claim historical title in the open ocean," he says. "The concept applies only to waters very close to the coast that have historically been regarded as a State's internal waters."

Reichler also maintains that the case is not about delimitation of maritime boundaries, which is excluded from arbitration, but about the distinct process of determining what China's and the Philippines' entitlements in the South China Sea are under UNCLOS (you can't delimit maritime boundaries without first determining entitlements, Reichler points out). Nor is the Philippines asking the arbitrators to rule on the sovereignty of several disputed islands in the South China Sea. Instead, the Philippines wants the tribunal to distinguish between islands, rocks, and permanently submerged features. UNCLOS provides clear guidance for making those distinctions, which hinge on whether the formation in question is permanently above water and can sustain human life and economic activity.

Some observers believe the Philippines has threaded the legal needle. "I am optimistic that the arbitrators will decide they have jurisdiction to hear at least some of the issues presented by the Philippines," says Peter Dutton, a law of the sea expert at the U.S. Naval War College. He expects the tribunal will find that the Philippines "does have rightful claims to the resources in some of the waters within China's nine-dash line."

There are practical reasons the arbitrators might seek to avoid ruling on the dispute. China's refusal to participate sends an important signal about its intentions, and the arbitrators might balk at putting Beijing on a collision course with UNCLOS. But if the panel does rule in favor of the Philippines, the dispute will change. The nine-dash line won't merely be exorbitant -- it will be legally dubious.

Beijing might shift tack and adopt a more conciliatory approach. Indeed, the arbitration process is slow, and there's plenty of time left for diplomacy. But China's cold response to the tragedy of Typhoon Haiyan doesn't provide much ground for optimism.    

Dondi Tawatao/Getty Images


Should You Be Allowed to Use Chemical Weapons in a Video Game?

Why the Geneva Convention doesn't work for Call of Duty.

No more torturing prisoners. No more shooting civilians. No more blowing up hospitals.

Your next Call of Duty game might be a bit less colorful -- or less ethically challenged -- if the International Committee of the Red Cross (ICRC) has its way. 

The ICRC is now asking video game publishers to incorporate the laws of war into their games. The organization makes clear that it is not calling for a ban on violence in video games, nor does it consider -- contrary to earlier reports in 2011 -- that war crimes in video games equate to real crimes. But it does want games to penalize players for violating the laws of war. "The ICRC is suggesting that as in real life, these games should include virtual consequences for people's actions and decisions," notes the Red Cross website. "Gamers should be rewarded for respecting the law of armed conflict and there should be virtual penalties for serious violations of the law of armed conflict, in other words war crimes."

The ICRC fears that the next generation of soldiers will have their notions of ethical battlefield behavior shaped by video games. "Certain game scenarios could lead to a trivialization of serious violations of the law of armed conflict," the organization says. "The fear is that eventually such illegal acts will be perceived as acceptable behavior." Such virtual behavior includes "the use of torture, particularly in interrogation, deliberate attacks on civilians, the killing of prisoners or the wounded, attacks on medical personnel, facilities, and transport such as ambulances, or that anyone on the battlefield can be killed." 

How widespread the problem is can be seen in an article on game site Gameranx, which identified 10 egregious cases of war crimes in video games, such as executing wounded prisoners in Call of Duty 2, genocide in Gears of War 3, and using torture against captives in Call of Duty: Modern Warfare.

But the ICRC is not calling for removing war crimes from games, on the grounds that including them is actually educational, allowing players to make the same difficult choices that real combatants face. "We do not suggest that games be sanitized of all illegal acts," ICRC spokesman Bernard Barrett said in an email to Foreign Policy. "Also, games must remain fun and challenging. A boring game is of little interest to the players, to the manufacturers or to us. We would prefer that players not be required to commit illegal acts to move to another level or be rewarded in some other way."

The ICRC has been working with Bohemia Interactive Studios, which publishes the Armed Assault series of first-person-shooter games (equally noteworthy is that Virtual Battlespace 2, the militarized version of Armed Assault, is the main tactical training game for the U.S. and foreign militaries). Bohemia Interactive Studios CEO Marek Spanel notes that Armed Assault has long had a feature where friendly troops will attack a player that attacks civilians or other friendly soldiers.

Barratt says the ICRC has also met with unspecified video game publishers at trade shows, and "we also know of other companies that have incorporated IHL [international humanitarian law] principles without having contacted us." However, none of the major video game publishers FP tried to contact, including Electronic Arts and Ubisoft, would say whether their games will reward players for heeding the laws of war.

There is precedent for the Red Cross campaign against virtual war crimes, in the same way that various groups focus on the portrayal of minorities, or smoking cigarettes, or wearing seat belts, in movies. The belief is that fictional behavior affects real-life behavior.

But limiting wanton violence in video games faces major hurdles. One reason is that there is too much money at stake in a video game market that is expected to gross $93 billion this year. Not that publishers directly make money off of soldiers shooting civilians, but analysts say that they are unlikely to tamper with a cash cow unless prompted to by government regulation, or unless lawsuits and news stories make it prohibitive to continue the status quo.

Then there is the whole question of whether video games actually induce or promote violent behavior, despite the hand-wringing whenever it turns out that a psycho gunman like Anders Breivik plays games. While some researchers conclude that virtual violence leads to the real thing, others dispute that assessment. Indeed, Barrett could not cite any cases where virtual war crimes led to real ones.

So why isn't ICRC concerned with movies, when a film like Inglorious Basterds portrays enough war crimes to fill a courtroom at The Hague? "In video games, as opposed to films or books, the players are making active decisions whether to shoot or not," Barratt says. Indeed, roleplaying is the ultimate appeal of gaming, especially shooter games which purport to put you into the shoes of a modern soldier on a contemporary battlefield. Yet while the Red Cross says it is not concerned about violence in fantasy or science-fiction games, it's hard not to wonder why the virtual crime wave in Grand Theft Auto V is any less morally corrosive than Battlefield 4.

When the ICRC and others worry about violence in video games, they focus on first-person-shooter games such as Call of Duty. Yet there is often appalling violence in Risk-like strategy games. In the popular empire-builder computer game Civilization, it is often easier to raze a captured city than occupy it. The best way to neutralize a rival power is to systematically destroy every one of their cities in what amounts to genocide. And what about a World War I simulation game like "The Entente" that allows the use of mustard gas, just as the historical combatants used? Would the games still be historical if players were penalized for using chemical weapons?

Programming the laws of war into a computer game is difficult when those laws themselves have so many loopholes. Hospitals can be bombed in real life if they are being used for military purposes. Civilians can be attacked if they are deemed to be acting as combatants, and nations and their lawyers have become adept at justifying such attacks. International law speaks of using force that is "proportionate" and not "indiscriminate," but how does a software developer code these concepts into computer games when not even lawyers can agree on exactly what they mean?

Which brings up the final problem: the difficulty of incorporating morality into video games that are all about action, not ethics. Games, like war, tend to elevate winning above all else, which is why players are always searching for ways to exploit loopholes in games. And if there is a loophole in a video game -- and there is always is -- then players will take advantage of it. When Grand Theft Auto V penalizes players who behave violently with a crackdown by the cops, does it lead to more ethical behavior, or just inspire players to find more clever ways of killing and robbing? There should not be a reason for shooting civilians on a virtual battlefield. But if there is a reason, and it can be done without consequences or just for "fun," some players will find a way to make it happen.

Video games can teach tactics. They can't teach morality.