July 18, 2020

Washington’s latest policy shift on the South China Sea is hardly surprising. Where it once used to be a neutral third party, it has in recent months begun taking steps to become an active supporter of several claimants.

It is worthwhile noting that the United States is a non-claimant state and not a party to the territorial and maritime disputes between China and Southeast Asian countries Malaysia, Vietnam, the Philippines and Brunei.

Yet, as “lawfare” – or the practice of using legal systems and principles against an opponent to damage or delegitimise them – intensified around the South China Sea issue in the last few months, Washington decided to participate.

In December, Malaysia filed a submission to the Commission on the Limits of the Continental Shelf regarding its claim in the disputed waterway. China, Indonesia, the Philippines and Vietnam subsequently submitted note verbales to the secretary general of the United Nations, expressing their respective claims and concerns.

On June 1, the US submitted its own note verbale to the UN secretary general arguing that China’s historical claims based on its “nine-dash line” and maritime claims with regard to the offshore archipelagoes it controls have no legal basis.

Washington further reinforced its position last Monday when US Secretary of State Mike Pompeo issued a statement regarding America’s position on maritime claims in the South China Sea, saying that “Beijing’s claims to offshore resources across most of the South China Sea are completely unlawful, as is its campaign of bullying to control them”. The day before, Teodoro Locsin Jnr, the Philippines’ top diplomat, also made a statement marking the fourth anniversary of a ruling by an international arbitration tribunal in The Hague on the matter.

While the US’ latest policy shift on the South China Sea could be seen as echoing and supporting its traditional allies and partner nations in the region, this is not the only reason for Washington’s move.

Amid steadily deteriorating US-China relations, the South China Sea has become a new battlefront in their rivalry after trade, technology, Hong Kong and the coronavirus pandemic. The waterway may even become a flashpoint between the two countries  – only one day after the July 13 statement, a US guided-missile destroyer, the USS Ralph Johnson, conducted a “freedom of navigation operation” around the Spratly Islands, which could further fuel tensions.

Pompeo has grounded Washington’s rejection of Beijing’s maritime claims in the tribunal's 2016 award to the Philippines, which unilaterally brought the case without the consent of China under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) – a treaty that the US has not even ratified.

And while the US has called on China to respect the tribunal’s award, which cannot be enforced, Washington itself has not abided by all the judgments of the International Court of Justice – one of the six principal organs of the UN – in cases where it was a party, even though that court’s rulings are enforceable and carry greater clout than a tribunal’s decision. For instance, the US refused to participate in a 1986 case brought by Nicaragua after the court rejected Washington’s argument that the issue was out of its jurisdiction. The US went on to block enforcement of the judgment by the UN Security Council, preventing Nicaragua from getting any compensation.

If the US believes that it has legitimate grounds to ignore the ICJ’s rulings, so does China when it comes to the tribunal’s award. Washington may well understand that these are the rules of the game in international politics. It would seem that the US only uses legal norms out of self interest and to pressurise China, rather than out of any desire it has to uphold the integrity of the international legal system.

Pompeo further asserted that Mischief Reef, Second Thomas Shoal, Vanguard Bank, Luconia Shoals and the Natuna Islands’ exclusive economic zone are under the jurisdiction of the Philippines, Vietnam, Malaysia and Indonesia, respectively, as each has previously claimed. This serves as encouragement to these countries, with Vietnam believing that once it initiates a third-party compulsory settlement procedure against China in the future, the US’ official position will definitely help it win the case.

With the US presidential election four months away, another question that comes to mind is whether the Trump administration is simply playing the South China Sea card as part of a re-election bid. 

Since 1947, China has had an official map featuring the dotted line in the South China Sea, and has continuously regarded the Spratly Islands chain as a single offshore archipelago – just as some other claimants and western states did in the past. A consensus also exists between China and other claimant states that any disputes should be settled through negotiation. 

In the past few years, China has successively established a bilateral consultation mechanism with the Philippines and with Malaysia on the South China Sea issue. And although the disputes have not been resolved, freedom of navigation in the region has not been affected. China, the US and all Southeast Asian countries still benefit from free and safe sea routes. Pompeo seems to lack an in-depth understanding of the South China Sea issue and perhaps does not have a team that is familiar with East Asian and Southeast Asian maritime affairs.

Territorial and maritime disputes in the South China Sea are not purely legal issues, but compose a set of complex controversies involving history, geopolitics and international relations. These have to be managed while claimants seek final and durable solutions through patient diplomacy. As a major user of the South China Sea, the US should play a more constructive role – instead of undermining the building of trust between China and other countries in the region and adding geopolitical complexities to code of conduct negotiations.

Ding Duo is an associate research fellow at the National Institute for South China Sea Studies in Hainan, China.

Link: https://www.scmp.com/week-asia/opinion/article/3093642/washingtons-double-standards-clear-it-wades-south-china-sea