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Facts and fiction in the South China Sea issue

2020-08-03 14:48:00       source:NISCSS

August 3, 2020

High-ranking officials of the United States have been berating China's policy in the South China Sea and maritime operations, guiding international opinion to pressure China and intensifying tensions in the waters. In a statement released on July 13, US Secretary of State Mike Pompeo cited the arbitration award of the South China Sea Arbitration between China and the Philippines to claim Beijing's sovereignty claims over certain islands and reefs in the South China Sea, saying "Beijing's claims to offshore resources across most of the South China Sea are completely unlawful."

When US Assistant Secretary of State David R. Stilwell attended a meeting hosted by the Washington-based think tank Center for Strategic and International Studies the next day, he reiterated the points made by Pompeo and went into details about China's policy in the South China Sea and maritime operations. He criticized China for pressuring ASEAN member states in the Code of Conduct negotiation, saying China seeks to "dominate" the South China Sea's oil and gas resources in pushing for "joint development" deals.

At the Special Presentation of the London-based International Institute for Strategic Studies held on July 21, Mark Esper, US Secretary of Defense kept up the tough rhetoric against China as he criticized China for violating the Declaration on the Conduct of Parties in the South China Sea (DOC) and attempting to turn international waters into its own "maritime empire." Do these seemingly "well-grounded" accusations made by high-ranking US officials reveal the facts behind the South China Sea issue, or are they simply malicious lies?

1. Are China's sovereignty claims over the Huangyan Island, Meiji Reef, and Zengmu Ansha reef unlawful?

Pompeo painstakingly picked out the Huangyan Island, Meiji Reef, Zengmu Ansha reef and several other maritime features where he believes China has no lawful sovereignty claim. By doing this, he can insist the US still does not take any position on sovereignty issues in the waters while tarnishing China's claims in the South China Sea and demonstrating US support for other claimant states. But in reality, the arbitral tribunal has made a series of mistakes regarding jurisdiction, admissibility and the nature and content of the disputes. Under the pretext of interpreting and applying the United Nations Convention on the Law of the Sea, it has violated the spirits and principles of the UNCLOS almost every step of the way.

China has made territorial claims to four island groups in the South China Sea, including the entire the Nansha Islands, encompassing both the archipelago and all other components. As stipulated in Article 46 of the UNCLOS and general international law, "archipelago" means a group of islands and reefs, including "interconnecting waters and other natural features." China has never claimed any separate maritime entitlement to such features like Ren'ai Reef, Meiji Reef , or Zengmu Ansha reef, all of which are natural terrain of the Nansha Islands.

The Philippines deliberately separated these maritime features and wrapped them into disputes over the interpretation and application of the UNCLOS, abusing the right of action. The arbitral tribunal misunderstood China's claims in the waters, and mistakenly decided the dispute between China and the Philippines was about the status of individual islands or reefs and their maritime entitlements. China refused to accept or recognize the arbitration award, showing its commitment to respecting and preserving international law, especially the UNCLOS.

The UNCLOS is always mentioned whenever the US brings up the topic of international law. International law constitutes the logic of the arbitration award of the South China Sea Arbitration between China and the Philippines. In that case, the US should first ratify the UNCLOS and modify its own maritime claims based on the arbitration award, even it is not a party to the dispute, to show respect for international law. For instance, the US should withdraw its claim to the exclusive economic zone extending 200 nautical miles from the shore of the Johnston Atoll, the Wake Island and other small islands without stable human habitation or the capacity to maintain economic life as soon as possible.

In the meantime, the US should also review the situation of the Hawaiian Islands, Guam, and other islands and reefs in the ocean to determine whether all of them comply with the rigorous definition given in the arbitration award regarding UNCLOS Article 121, on a "regime of islands". As the only maritime superpower in today's world, the US should play an exemplary role in downsizing its EEZ for the international community to follow suit. It is worth noting when Pompeo underlined that arbitral tribunal's decision as final and legally binding on both parties, he was just covering any possible consequences for himself.

The US condemns China for "not respecting or complying with international law" in the South China Sea. Nevertheless, anyone with knowledge about international politics and law in the post-WWII era knows the US is the one who actually violates international law and international rules while practicing "exceptionalism" and the idea of "might makes right." To ensure it is not bound by international law or multilateral mechanisms, the US refuses to ratify the United Nations Convention on the Rights of the Child or treat prisoners of war in the Guantanamo Bay detention camp in line with the Geneva Conventions. It has pulled out of the Kyoto Protocol, the Intermediate-Range Nuclear Forces Treaty and the UN Human Rights Council.

Recently, the US has announced it would withdraw from the World Health Organization when the rest of the world is still working together to fight the pandemic. On top of that, it has waged several aggressive military campaigns in other countries in the absence of resolutions or authorization by the UN Security Council, such as the US invasion of Panama in 1989, the Iraq War started in 2003 and the assassination of Iranian major general Qasem Soleimani in Iraq in early 2020. Shouldn't Pompeo's accusation of "violating international law" and "acting on the idea of might makes right" be directed toward the US?

2. Is China using COC consultations to oppress and bully ASEAN member states?

In his speech on July 14, Stilwell berated China for pressuring ASEAN member states in COC consultations and pressuring its neighbors to cut military and economic ties with outside states. He also asserted China's 2021 deadline for concluding the consultations is a sign of its hegemonism. Behind this gross exaggeration is malicious speculation. It serves to prove the US is not happy to see the early conclusion of a COC, hence attempts to sow discord between China and ASEAN countries and obstruct the process.

Since the resumption of COC consultations in September 2013, a total of 18 ASEAN-China senior officials' meetings and the 30th ASEAN-China Joint Working Group meeting have been held. Notably, landmark developments have been secured successively over the past three years. Hotline communications among senior officials of the ministries of foreign affairs of China and ASEAN member states were established in April 2016. The COC framework was instituted in May 2017. The Single Draft Negotiating Text came out in August 2018, and the first reading of the SDNT was finished in late July 2019 ahead of schedule, paving the way for the second reading. Many ASEAN member states have noted repeatedly they are quite satisfied with current progress and looking forward to early conclusion of the negotiations.

The purpose and mission of COC are to maintain peace and stability in the South China Sea. Leaders of China and ASEAN member states have built up the consensus on reaching a COC as soon as possible. The chairman's statement from the 36th ASEAN Summit, released on June 27, specified they are encouraged by the progress of COC consultations and are working towards the early conclusion of a COC.

Even though the COC consultations have been suspended due to the pandemic in 2020, it has been said at multiple virtual international conferences on the South China Sea that Southeast Asian scholars expect both sides to resume talks as soon as possible after the pandemic is completely tamed, so as to regulate the conduct of all parties concerned, forestall and control maritime crises and ensure the long-term stability and peace of the waters.

Nevertheless, the US has already changed its attitude from urging an early conclusion of a COC to emphasizing the US's concerns as a third party, seemingly unwilling to see a successful conclusion of a COC in next couple of years. There is nothing new to Stilwell's accusation against China. As early as October 2018, officials of the US Department of State accused China of exerting pressure during COC negotiations by restraining ASEAN member states from engaging in military operations with security partners in the South China Sea. They believed restraining ASEAN member states from joint oil and gas exploration with energy companies of outside states was limiting their capacity to exercise sovereignty and develop diplomatic and economic policies independently.

Stilwell expressed worries the consultation process may harm the interests of the US and other countries regarding the "freedom of the seas". However, "freedom of the seas" is nothing but a cover. What truly worries the US is the conclusion of a COC may restrict the military presence it relies on to safeguard its maritime hegemony in the Asia-Pacific region. Ensuring the free entry of its military forces globally constitutes the foundation of its maritime hegemony. To this end, the US has for a long time refused to ratify the UNCLOS, yet again thwarting any international rules or institutional arrangements it cannot control.

The US also feels anxious that the conclusion of a COC may dampen its economic interests. Currently, the US-based Exxon Mobil and Vietnam's PetroVietnam are working together on the Blue Whale gas exploration project in the South China Sea, and ConocoPhillips is advancing oil and gas exploration with Malaysia and Brunei in disputed waters off the coast of the Nansha Islands. Above all, the US is most worried about the possibility China may dominate the formulation of regional rules in the South China Sea. By calling for greater "openness" and "transparency" in COC consultations, the US is creating opportunities for itself to intervene in the consultations and deeply involve itself in South China Sea affairs.

The COC consultations have equal participation from relevant parties through negotiations. No party can force its own will on others. The reason why the US measures others' corn by its own bushel, so to speak, is the country is used to threatening other parties in bilateral and multilateral consultations. For example, during the Canada-United States-Mexico Agreement consultations, the US used tariff hikes as a bargaining chip to threaten other parties. At the current stage, the COC consultation is the top priority in developing rules and restoring order in the South China Sea. However, the COC does not conform to the national interests of the US in the South China Sea, so the steady advancement of negotiations in recent years has already made the US more anxious. Hence it is no surprise that the US encourages ASEAN member states to guard against China, slanders the COC and tries to hinder the consultation process.

3. Is China seeking to "dominate" oil and gas resources in the South China Sea through "joint development"?

Stilwell asserted that by deploying military forces, maritime militia and oil rigs, Beijing tries to drive up investment risks for energy firms that want to operate in the South China Sea to push out foreign competition and limit the options of coastal states in the waters to China. Also, Esper accused China of imposing a threat to regional peace and violating the DOC of 2002 by conducting military exercises in the South China Sea.

As is widely known, the US is an expert in flexing muscles and intimidating countries in the region by deploying military forces and conducting military operations. On May 20, the US released the United States Strategic Approach to the People's Republic of China, threatening to pressure China, push back on China's hegemonic confidence and provide security assistance to help regional allies and partners withstand Beijing's coercion.

During the outbreak of the pandemic, instead of moderating military operations in the South China Sea, the US became even more provocative. In 2020, the US has conducted six freedom of navigation operations targeting China's islands and reefs. Since mid-June, the US conducted alarmingly frequent close-range reconnaissance missions near China's Hainan and the coastal areas of Guangdong province. On the most active day, six sorties of large reconnaissance planes were dispatched. From July 3 to 17, the USS Ronald Reagan and USS Nimitz Carrier strike groups carried out two joint exercises in the South China Sea.

In the 1980s, long before the UNCLOS took effect, China's state leader Deng Xiaoping proposed the idea of "shelving differences and seeking joint development," which represents a temporary arrangement for claimant states to establish mutual trust before fully settling disputes and cooperating on the exploration or development of oil and gas resources in contested waters. There are many practices of jointly developing offshore resources in contested waters by claimant states internationally. They have played an important role in addressing maritime disputes and leveraging cross-border maritime resources. The joint development of the UK and Argentina in the Falkland Islands/Malvinas Islands, and the joint development of Malaysia and Thailand in the Gulf of Thailand both demonstrate the attempt to peacefully settle maritime disputes by claimant states.

Pompeo, Stilwell and others stressed that oil and gas resources in the waters around the Nansha Islands belong to Vietnam, the Philippines and other neighboring countries, whereas any claim of China on any oil and gas resources in the waters is "illegal." The legal basis of this argument is still the arbitration award of 2016. Aside from interpretations of the first question in this paper, it must be noted that no matter how hard the arbitral tribunal and some claimant states try to deny China's claims, China's territorial and maritime entitlements to the four island groups, especially the Nansha Islands, are sufficiently justified. Before the maritime delimitation issue is resolved, the unilateral oil and gas development operations of a claimant state in contested waters will affect the other side's sovereign interests. Therefore it is not in line with the purpose and principle of Articles 74 and 83 of the UNCLOS, which may also influence the results of subsequent maritime delimitation.

China has been exercising self-restraint and has never engaged in any oil and gas resource development in the waters around the Nansha Islands. Promoting the joint development of resources in contested waters as an initiative in line with international law and regional realities aims at establishing mutual trust and fostering a cooperative environment before a final agreement on maritime delimitation can be reached. This has nothing to do with the US-alleged "domination" of oil and gas resources. In November 2018, China and the Philippines signed a memorandum of understanding on oil and gas development. Then in August 2019, the two sides set up an intergovernmental joint steering committee and inter-entrepreneurial working group for oil and gas development. Although the pandemic has held back further advancement this year, China and the Philippines will continue to seek progress in the post-pandemic era.

In addition to joint development, China is also dedicated to implementing Article 6 of the DOC of 2002 by vigorously advancing maritime cooperation and establishing mutual trust with countries in the region. Solid progress has been secured in cooperation on unconventional security domains, like maritime fishery and aquiculture, marine environment protection and marine law enforcement. In October 2017, China, together with Thailand, the Philippines, Brunei and three other countries conducted joint maritime search and rescue drills.

The 3.5 million square meters of waters on the South China Sea is for no one to dominate. Coastal countries will work to safeguard the peace and stability in the South China Sea, with tangible outcomes of maritime cooperation and a commitment to formulating rules and maintaining order in the region. It is foreseeable in the second half of 2020 the US will continue to suppress China on the South China Sea issue, either through intensifying maritime deployments and maritime military activities, inciting other claimant states to confront China or prompting its outside allies to muddle the South China Sea. Both China and ASEAN member states need to see through the US's attempt to stir up trouble, otherwise peace and stability in the South China Sea will be nothing but empty talk.

Yan Yan is Director of the Research Center of Oceans Law and Policy at the National Institute for South China Sea Studies, Haikou, China.

Link: https://www.chinadaily.com.cn/a/202008/03/WS5f2794b1a31083481725dcfb.html