The United States rewards the Philippines with clarity
The United States rewards the Philippines with clarity
WRITTEN BY YOICHIRO SATO
15 July 2020
On 13 July, US Secretary of State Mike Pompeo issued a high level press statement reiterating three key US positions on the South China Sea (SCS) dispute. First, it explicitly rejected China’s 9-dash line claim over the disputed waters. Second, it denounced China’s conduct over a series of recent maritime incidents between Chinese coastguard vessels and the fishing vessels of SCS littoral states, alongside other assertive unilateral actions. Third, it backed the 2016 Permanent Court of Arbitration judgment brought forward by the Philippines.
New specificity
In contrast to previous US statements, what was new in Pompeo’s remarks were references to specific disputed features in the SCS. The most notable of which was in relation to the Philippines’ maritime disputes vis-à-vis China.
One of the features explicitly referenced in the statement was Scarborough Reef:
“The PRC cannot lawfully assert a maritime claim—including any Exclusive Economic Zone (EEZ) claims derived from Scarborough Reef and the Spratly Islands—vis-à-vis the Philippines in areas that the Tribunal found to be in the Philippines’ EEZ or on its continental shelf.”
The 2016 Tribunal identified five features in the Spratly group and Scarborough Reef as “rocks” that can generate only a territorial water claim up to 12 nautical miles. All other features were deemed to be “low-tide elevations” and not capable of generating a territorial water claim.
Pompeo’s statement explicitly stated that Scarborough Reef, over which the Philippines lost effective control after a naval confrontation with China in 2012, cannot be used by China as a basis to claim an EEZ. The reference by the US to Scarborough as a “Reef”, with its more ambiguous “above water” connotations, as opposed to the more common usage of the word "Shoal", may indicate careful consultation with the Philippines. President Rodrigo Duterte’s last-minute cancellation in June of the scheduled termination of the Visiting Forces Agreement (VFA) with the United States might even have been induced by concessions on Scarborough.
On 14 July, US Assistant Secretary of State David Stilwell clarified the stance on the Scarborough Reef during a Q&A session after his keynote speech at the tenth annual South China Sea Conference by the Center for Strategic and International Studies (CSIS) in Washington, D.C. In his remarks, Stilwell stated that any land reclamation or militarization of Scarborough Reef by China would trigger the US-Philippines mutual defence treaty. Thus, the United States seems to have set, for the first time, an explicit red line against China in the South China Sea.
The US statement also makes specific references to two features in the Spratly Group.
“In line with the Tribunal’s legally binding decision, the PRC has no lawful territorial or maritime claim to Mischief Reef or Second Thomas Shoal, both of which fall fully under the Philippines’ sovereign rights and jurisdiction, nor does Beijing have any territorial or maritime claims generated from these features.”
Claims and counter claims
Mischief Reef and Second Thomas Shoal are both within the 200 nautical mile EEZ drawn from the baseline on Palawan Island and are presently controlled by China. Beijing has reclaimed and heavily militarised Mischief Reef. The submerged Second Thomas Shoal, however, is controlled by Filipino marines stationed onboard a beached warship. This isolated outpost is subject to close monitoring by the nearby Chinese naval presence and there are fears that Beijing will repeat its actions at Scarborough Reef and attempt to force a withdrawal. The 2016 Tribunal declared both features to be low-tide elevations and hence cannot generate an EEZ or a territorial water claim. The US State Department statement went further however and refuted China’s territorial claim to these features and recognized them squarely under the Philippines’ legal jurisdiction. Their status as low-tide elevations serves as the legal pretext that allows US freedom of navigation operations (FONOPs) near the fortified Mischief Reef.
Features not specifically mentioned demonstrate the limit of US support. Pag-asa (Thitu) and the Loaita Islands of the Spratly Group are controlled by the Philippines but are also claimed by both Vietnam and China. The 2016 Tribunal judged no features in the Spratly Group legally qualifies as an “island” (regardless of how they have been described) and thus are not capable of generating an EEZ.
The islands, which sit outside the Philippines' EEZ (derived from Palawan), receive no specific mention in the US State Department’s statement. The omission is inevitable, given Vietnam’s overlapping claims to the two islands and Hanoi’s growing importance to Washington. At the same time, the US stance on Pag-asa (Thitu) and Loaita, which both lie near China-controlled Fiery Cross Reef and Subi Reef, is notable. Both Pag-asa and Loaita sit within roughly 200 kilometres of the highly militarized Fiery Cross Reef, and Pag-asa is only 25 kilometres from Subi Reef. The Philippines recently announced plans to reinforce its facility on Pag-asa. Given the Secretary of State did not indicate a new position, in effect, the US stance on these islands remains neutral between the three disputants. On these two features, Washington has opted to defer to the 2016 Tribunal ruling, which preempts an EEZ claim by any legal owner of these islands.
In conclusion
So, what does the State Department statement tell us about US policy in the South China Sea? Initial media reports generally took note of the elevated US commitment to support Southeast Asian interests in the South China Sea. A more in-depth reading of Pompeo’s statement, however, reveals a mixture of new clarity and remaining ambiguity. The clarification on Scarborough Reef is the most important, as it appears to reflect the intense US concern over its militarisation by China. Some observers have noted that building an airbase on the Scarborough Reef completes a triangle over the vast area of the SCS (connecting the Mischief Reef in the Spratly Group and the Woody Island in the Paracel Group), which enables China to effectively enforce an air defence identification zone over the SCS.
The clarity of denying outright, China’s sovereignty claims over Mischief Reef and the Second Thomas Shoal is based on their legal definition and subsequent categorisation as low-tide elevations, based on the 2016 PCA ruling. The Philippines controlled Pag-asa near China-controlled Subi and Mischief Reefs however is not backed by the US, due to the unresolved disagreement between the Philippines and Vietnam. Here then is the continuing ambiguity from Washington.
Overall, when viewed in the context of recent events, the US statements of the last few days reflect a positive reinforcement cycle, creating unity among Southeast Asian claimant states and the United States. The explicitness of Secretary of State Pompeo’s statement towards the Philippines reflects a growing commitment to form a united front in the South China Sea against an increasingly assertive China. The Philippines has rediscovered the utility of American power and has been rewarded for it.
DISCLAIMER: All views expressed are those of the writer and do not necessarily represent that of the 9DASHLINE.com platform.
Author biography
Yoichiro Sato is a Professor at Ritsumeikan Asia Pacific University. His recent books include Re-rising Japan (co-edited, Peter Lang, 2017), Regional Institutions, Geopolitics and Economics in the Asia Pacific (co-edited, Routledge, 2017). Image credit: U.S. Department of State/Flickr.