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For South China Sea disputes to be resolved amicably, US must get out of the way

2022-01-19 15:06:38       source:South China Morning Post

January 18, 2022

The US State Department recently released a report on China’s maritime claims in the South China Sea. It is the fourth such report since 1970, and the second on claims in the South China Sea since the Philippines initiated international arbitration against China over these claims in 2013.

Unsurprisingly, this latest “Limits in the Seas” report provides an almost complete rejection of China’s claims. Even on the baselines of the Zhongsha Islands’ and Nansha Islands’ territorial waters, which the Chinese government has yet to determine, the report gives a pre-emptive negative judgment.

The report examines China’s sovereign claims over maritime features, straight baselines, maritime zones and historic rights, as well as China’s latest formulation of its claims following the arbitration ruling in 2016.

China believes that the award was fundamentally flawed both in law and fact. It is for this reason that Beijing made its position on the South China Sea more specific and more in-depth. But this does not mean its position has changed after the arbitration.

In its interpretation of the 1982 United Nations Convention on the Law of the Sea (Unclos), the US report reflects its policies and positions.

It should be noted that the policies and positions of a non-party to a dispute are not golden rules in international law for judging the merits of that dispute. Further, US policies and positions are far from reflecting authoritative interpretations of an international treaty: the right to interpret a treaty belongs to its contracting parties, but the US is not a party to Unclos.

Washington believes it can interpret the relevant provisions of Unclos from the perspective of customary international law. However, in doing so, it ignores the negotiation history and contracting materials of this convention, which clearly show that on the issues of historical rights, offshore archipelago, straight baselines and innocent passage, Unclos either does not regulate and leaves it to general international law or formulates vague provisions, to balance the interests of participants with competing positions.

Why, then, did Washington choose to release this latest report now? Its last report on China’s South China Sea claims was released in 2014 in the run-up to the Philippines vs China tribunal hearing. The core arguments and conclusions of that report essentially provided guidance to the tribunal on the legal status of China’s nine-dash line in the South China Sea.

Similarly, early this year, the UN’s Commission on the Limits of the Continental Shelf is poised to consider Malaysia’s submission claiming the continental shelf beyond 200 nautical miles, which overlaps with China’s maritime claims in the area. The just-released US report is likely to be another attempt to influence an international agency.

The report may have yet another purpose. Vietnam, too, is reportedly preparing to file a lawsuit against China, after Hanoi started drilling in the contested Vanguard Bank waters. According to a government source, a US law firm is providing legal advice to Vietnam in its preparations. The State Department report could be seen as a political signal to encourage Vietnam to take more substantive actions on this course.

The report may also affect relations between China and the Philippines. In the five years since the 2016 ruling, the two countries have gradually come to a consensus that their South China Sea disputes should not be handledon the premise of that ruling.

But a new Philippine president will be elected in May, and Washington will no doubt prefer a leader who is tough on China and willing to use the tribunal ruling against Beijing. The US State Department’s support for the Philippines’ stance on the South China Sea will inevitably give the next administration in Manila more confidence to “stand up to” Beijing.

China and Asean countries are still negotiating a code of conduct in the South China Sea. Yet the US has, in recent years, tried to intervene in South China Sea issues through political, diplomatic, legal and military means, sowing discord between China and the Association of Southeast Asian Nations and reducing the political will of some countries to speed up negotiations on the code of conduct.

The US is not a party to the maritime disputes in the South China Sea, yet it has been the most diligent country in denying China’s claims there. This is a rare and interesting phenomenon in the history of international law and international relations.

The US talks often about its support for a “rules-based international order”.

After World War II, China rightfully took back its sovereignty over the islands and reefs in the South China Sea. If the US truly aims to maintain international rules, it should answer this question: is China’s sovereignty over the islands and reefs in the South China Sea an integral part of the post-war international order? It should also ask itself whether some countries’ occupation of China’s islands and reefs in 1960s and 1970s constitutes a challenge to the post-war international order.

The South China Sea disputes have not been resolved. Washington, by denying the claims of China, a significant party to the dispute, is essentially driving all the parties to a dead end, leaving no room for them to strike deals based on mutual compromise.

In other words, it is not China but the US that has been constantly blocking the way for the parties to resolve disputes amicably through negotiation and consultation.

Ding Duo is deputy director and associate research fellow at the Research Center for Ocean Law and Policy at the National Institute for South China Sea Studies