The United States has a new South China Sea policy
The United States has a new South China Sea policy
WRITTEN BY DRAKE LONG
17 July 2020
On Monday, the United States announced it was changing its stance on claims in the South China Sea.
The announcement came as something of a surprise, although a shift in the US’ approach to the simmering dispute had been anticipated for quite a while. The South China Sea is a major gateway for world trade, and among its six claimants are some of the most dynamic emerging economies, a US treaty ally, and a majority of Association of Southeast Asian Nations (ASEAN) member states. To put it succinctly, the South China Sea dispute is of international consequence and is a prime case study in the growing US-China great power rivalry. Both countries are embroiled in the dispute in one way or another and are key stakeholders in its outcome.
The particulars of the US shift in policy are a bit confusing, as they are primarily aimed at clarifying the US approach to precedents in international law. But for a country rhetorically committed to the ‘rules-based order’ in the Pacific, this shift in policy is a welcome change, and has been appreciated by seasoned South China Sea analysts.
So what did the US actually change?
A closer look at the text
First of all, the US’ new policy is more limited than some may think. Reading it carefully, it’s clear that the US is still not making judgements or taking sides when it comes to the sovereignty of land features in the South China Sea. Assistant Secretary of State David Stilwell clarified this further at the 10th Annual South China Sea conference on Tuesday. The stated policy shift is to align the US position with that of the 2016 Permanent Court of Arbitration (PCA) award, which ultimately decided that the basis of China’s claims to maritime rights and economic entitlements in the South China Sea are not supported by international law, namely the United Nations Convention on the Law of the Sea (UNCLOS). At the time, this outcome was considered a big win for the Philippines, who had brought the case to court. However, regional governments and the US failed to capitalise on it.
The new US policy should be viewed as one more part of a coordinated effort across multiple governments to push back against China’s claims with similar diplomatic approaches and language, emphasising UNCLOS and the 2016 PCA award specifically.
By aligning with the PCA, the US is now explicitly stating that China’s claims to the waters around land features in the Spratlys are illegal. China’s intrusive claims into other countries’ 200 nautical mile exclusive economic zones are, similarly, illegal. This is significant in that it shows enormous rhetorical and diplomatic support for Southeast Asian countries to assert their economic rights to their own waters. After all, China’s insistence on economic rights to the waters off the Natuna islands and Vanguard Bank has provoked tense stand-offs with Indonesia and Vietnam respectively just in the past year, and has injected uncertainty into ASEAN states’ efforts to exploit the potential resources within their maritime borders.
However, this stated policy shift does not take definitive stances on who rightfully owns the rocks and reefs in the Spratlys themselves. The only specific features the US is now taking a position on are Mischief Reef, Second Thomas Shoal, and James Shoal. The first two are submerged features only visible at low-tide and James Shoal is completely underwater at all times. None can generate exclusive economic zones or any maritime entitlements according to the 2016 PCA award. There’s little risk in adopting a firm position there.
In short, this is a very narrowly-focused shift in the US position that does not address all parts of the 2016 PCA award. The US has avoided wading into the question of who rightfully owns features visible at high-tide. It is merely stating that China’s expansive maritime claims are illegal while demurring on the subject of territorial claims in the South China Sea.
Some may point out that since the US already implicitly believed all of this anyway, not much has actually changed with this announcement. Truthfully, such a statement should have been made when the PCA award came out in 2016; to do so four years later feels a little late to the game.
A concerted effort to push back against Chinese claims
However, this policy shift, even if just rhetorical, is not happening in a vacuum. The quickness with which the Philippines’ Defense Secretary expressed support for the new US stance implies there’s been some coordination on this move. There’s reason to believe the US’ new policy on the South China Sea is part of a concerted effort to align with concerned Southeast Asian countries, all of which are slowly moving towards a common argument against China’s egregious claims to the region.
Consider how the US preceded this announcement with a note to the United Nations at the beginning of June, which was the first concrete signal that the US was re-assessing its stance on the South China Sea. That note explicitly invoked the 2016 Permanent Court of Arbitration award in its protest of China’s claims, echoing the language used by Secretary of State Pompeo on Monday.
Looking a bit further back, it’s worth remembering that the diplomatic note was actually part of a series of notes that other countries had been transmitting to the UN’s Commission on the Limits of the Continental Shelf (CLCS) over the past year. What had started as a seemingly rote claim by Malaysia to an extended continental shelf in December 2019 sparked a response from China, who reiterated its maximalist claims to the South China Sea and made clear it was not softening or quietly dropping its more specious arguments to disputed waters.
That Malaysia’s submission came in the middle of negotiations between China and ASEAN over a Code of Conduct (CoC) in the South China Sea is likely not a coincidence. China is notoriously ambiguous about what precisely it means when it says things like ‘historic rights,’ or even the extent of the nine-dash-line and what constitutes the South China Sea’s boundaries. All of these ambiguities would have come up in CoC negotiations and by submitting its claim Malaysia forced China to definitively state its claim and their basis in an open diplomatic forum.
Needless to say, ASEAN states were unhappy with China’s continued insistence on its claims on nearly the entire South China Sea on legally unsupported grounds like ‘historic rights,’ as well as Beijing’s refusal to budge despite multilateral negotiations. Subsequent notes to the CLCS from the Philippines, Vietnam, and Indonesia rejected China’s claims, but more importantly, invoked the 2016 award by the Permanent Court of Arbitration, and with curiously similar language. Even Vietnam, while skirting carefully around explicitly citing the PCA, made clear and distinct references to part of the tribunal’s ruling that disputed China’s claims to low-tide elevations.
It is unclear if there was an effort to coordinate diplomatic notes to the UN by these ASEAN states. It certainly looked like a concerted pushback against China amid CoC negotiations, but it is more likely each country picked up on the diplomatic messaging of like-minded neighbours and tailored its own approach accordingly. Appearing in this context, the US note echoed what the Philippines, Vietnam, and Indonesia had already written.
Other US moves to watch for
The new US policy should be viewed as one more part of a coordinated effort across multiple governments to push back against China’s claims with similar diplomatic approaches and language, emphasising UNCLOS and the 2016 PCA award specifically. This is significant if one believes multilateralism, or a ‘united front,’ is the only way to counter China’s coercive practices in the South China Sea. It could similarly be considered the first step towards re-asserting the ‘rules-based order’ in Southeast and East Asia more broadly, where the ‘Free and Open Indo-Pacific’ concept lacks local context and the US is playing catch-up to China in terms of political and economic influence.
Considered this way, the new US stance on the South China Sea is a step in the right direction, but a small step nonetheless. Although it will take some time to see how the US follows up on this move, we can hazard a few guesses in terms of likely actionable policy.
One, the US is heavily hinting it will start looking at sanctioning Chinese state-owned enterprises (SOEs) involved in the environmentally destructive construction of China’s artificial islands in the Spratlys and Paracels. Assistant Secretary Stilwell even named a specific company in his address this Tuesday – the China Communications Construction Company (CCCC). Sanctions are probably also coming for SOEs deployed by China to help assert its claims and pressure other claimant states out of their resource rights. The China National Offshore Oil Corporation (CNOOC), which deployed the infamous Hai Yang Shi You 981 oilrig in waters disputed between China and Vietnam back in 2014, certainly comes to mind.
Two, the US is paying greater scrutiny to China’s attempts to co-opt international forums like the International Seabed Authority (ISA) and the International Tribunal for the Law of the Sea (ITLOS). ITLOS is an independent judicial body meant to deal with legal cases that involve UNCLOS, similar to the 2016 tribunal that heard the case between the Philippines and China. It is something of a steward for the legal body of work the US may come to cite in its arguments against China’s claims in the future. But the next slate of judges headed for a term on ITLOS’ bench includes a controversial Chinese candidate. The US will probably apply pressure to try and get member states not to vote for China’s pick, which makes sense considering China’s blatant disdain for UNCLOS and international law in general. However, the US will almost certainly fail in this regard, mostly because the US itself has never ratified UNCLOS and has limited leverage to affect the judicial election.
Finally, the US is likely to more forcefully support Southeast Asians’ right to their maritime resources, positioning the development of the marine economy and the livelihood of coastal communities as central to the region’s cohesion and independence in the face of China’s rise. We have already seen the US ‘show the flag’ near Chinese survey ships provocatively intruding into Vietnamese and Malaysian waters. A smart bet is that these patrols are going to keep happening, and with greater frequency, until Southeast Asian countries are comfortable exploring for oil or sending out fishing fleets without fear of a Chinese pressure campaign. There have been perennial rumours of an operational US coastguard presence in Southeast Asia or joint patrols, but those have yet to materialise.
Beijing is alienating its neighbours
There is a question of what the Chinese reaction will be. Fears that this new US policy increases the risk of conflict in the South China Sea are overblown. As previously stated, the actual shift in the US position is fairly moderate, and China is unlikely to have been very surprised by it. There may be a sense of frustration in Beijing as it realises it has managed to alienate countries like Indonesia and the Philippines, neither of whom were willing to take such strident tones against China a year ago, and inadvertently pushed them into coalition with outside countries like India and the US.
But fundamentally, tensions in the South China Sea are due to China’s approach, which has caught ire from virtually all of its neighbors. What can Beijing do in the South China Sea in response to a US statement that it is not already doing? China has already militarised its artificial islands. It is already holding naval exercises in disputed waters. Even while negotiating a peaceful settlement to the dispute with ASEAN, China never stopped or reined in its paramilitary coastguard and fishing fleets, violating other countries’ exclusive economic zones and driving international oil companies out. China seems to be incapable of relaxing its most absurd, maximalist territorial claims, even when it would make diplomatic sense to do so. Given this behaviour, the only option left to countries in the region is to balance against China, with support from an outside country.
The US has seized on that opening, but in doing so may need to grapple with some tougher questions. Scarborough Shoal’s status under the Mutual Defense Treaty is a perennial thorn in the side of the US-Philippine alliance, and it is still not clear how the US would react if China were to build a permanent structure there. The US is still not a part of the emerging economic architecture of Southeast Asia, especially since pulling out of the TPP. This portends poorly for enduring US influence.
Nobody can say where the end is to the South China Sea dispute, which is part and parcel of the bigger question of how to manage China’s rise amid the growth of middle powers in Asia. But for now, the new US shift in policy is a start.
DISCLAIMER: All views expressed are those of the writer and do not necessarily represent that of the 9DASHLINE.com platform.
Author biography
Drake Long is a 2020 Asia-Pacific Fellow for Young Professionals in Foreign Policy (YPFP). He also writes on the South China Sea and Southeast Asian maritime issues for Radio Free Asia. Image credit: US Department of State/Flickr.