Flashpoints | Security | Southeast Asia

South China Sea: US Joins the Battle of Diplomatic Notes

Washington’s letter on the South China Sea to the UN secretary general supports the position expressed by Malaysia, the Philippines, Vietnam, and Indonesia.

By Nguyen Hong Thao for
South China Sea: US Joins the Battle of Diplomatic Notes
Credit: U.S. Navy Photo By Mass Communication Specialist 3rd Class Kryzentia Weiermann

On June 1, 2020, Ambassador Kelly Craft, the United States’ representative to the United Nations, sent a letter to the secretary-general of the United Nations regarding Note Verbale No. CML/14/2019. Issued by the Permanent Mission of the People’s Republic of China on December 12, 2019, the Note Verbale was a response to Malaysia’s same-day submission of its extended continental shelf (beyond 200 nautical miles) to the Commission on the Limits of the Continental Shelf (CLCS).

By this act, the United States, a non-claimant country that is further away from the immediate South China Sea region, has involved itself in the legal battle of diplomatic note exchanges between China and Malaysia, the Philippines, Vietnam and Indonesia, dating back to December 2019.

The communication, however, did not comment on Malaysia’s CLCS submission and was not registered on the CLCS’s website. There may be several reasons behind this. For one thing, the United States has not ratified the United Nations Convention for the Law of the Sea (UNCLOS) and the criteria of determination of the outer limit of the continental shelf is a conventional, and not customary, international norm. Article 76 of UNCLOS – which defines the continental shelf – is a new agreement, while the standard breath of territorial seas, exclusive economic zones, and continental shelves are customary norms that are binding for all states, parties or non-parties of UNCLOS.Malaysia’s 2019 partial submission as well as the 2009 Malaysia-Vietnam Joint Submission of the extended continental shelf were undertakings in implementing the obligations of state parties to UNCLOS. The acceptance of those submissions depends on the procedures of consideration and recommendation of the CLCS, which was established by UNCLOS and thus does not include the United States as a party.

Those questions aside, the latest UN communication reiterates American objections to China’s maritime claims in the South China Sea (SCS). Craft’s letter takes a firmer stance than the U.S. Note Verbale from December 28, 2016 in multiple ways.

First, while the 2016 note mainly focused on three documents that China issued on June 12 and 13 of that year to oppose the SCS arbitral awards, the 2020 communication noted that the Tribunal ruling is final and binding on both China and the Philippines based on Article 296 of UNCLOS. The letter reiterates the tribunal’s finding that “China’s claim to historic rights [in the SCS] is incompatible with the Convention to the extent that it exceeds the limits of China’s possible maritime zones as specifically provided” in Articles 2, 57, and 76 of UNCLOS. The letter additionally notes that the United States has the responsibility to make “formal protests to these unlawful assertions” that interfere with the rights and freedoms enjoyed by the United States and all other States.

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The letter also strongly urges China to conform its maritime claims with the international law as reflected in UNCLOS; to comply with the Tribunal’s July 12, 2016, decision; and to cease its provocative activities in the South China Sea. The term “provocative activities” was absent in the 2016 note but has been regularly used in recent speeches made by American officials such as the U.S. Department of State Report on the Indo-Pacific Strategy in November 2019.

The letter also rejected “any claim of internal waters between the dispersed islands China claims in the South China Sea.” It noted that high-tide features in the Spratlys, qualified by the Tribunal Award as rocks based on Article 121 (3), have normal baselines only as described in Article 5 of UNCLOS. The method of straight baselines is only applied in localities where the coastline (of the mainland or island) is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, or where the coastline is highly unstable by the presence of  a delta and other natural conditions. None of the above conditions apply for the Spratlys, or any of the other island groups China lays claim to in the area.

The United States also noted that entirely submerged features like Macclesfield Bank or James Shoal, and low-tide elevations like Mischief Reef and Second Thomas Shoal, “cannot generate a territorial sea or other maritime zones under international law.” Any land reclamation work and construction of military bases on those features cannot change their legal situation.

Finally, the communication also emphasized that the previous notes of the Philippines, Vietnam, and Indonesia have had the same viewpoint on unlawful Chinese claims. In other words, the communication implicitly encourages regional countries to support the 2016 Tribunal ruling and international law to settle the South China Sea disputes.

Indeed, by reducing maritime zones of high tide features in the Spratlys Islands to no more than 12 nm, the ruling unveiled the possibility of high seas – the common heritage of mankind — in the center of the SCS. Beyond traditional freedoms of the sea, the High Sea and Area clause of UNCLOS allows other states to enjoy rights to sea bed resources and other interests.

On June 3, 2020, the Chinese Foreign Ministry spokesperson pushed back on the U.S. objections by asserting that China had formed territorial sovereignty through a long historical process and had maritime rights and interests in the SCS, which are also in line with the UN Charter and UNCLOS. China emphasized that the United States is not a party to the SCS disputes, therefore it should not take sides or regularly raise tensions with its military presence, which the spokesperson blamed for dividing countries in the region. In Chinese words, those activities are not conducive to stability and peace in the SCS.

It’s worth remembering in this context that it was China who used force in 1974 and 1988 to gain control of South China Sea features, going against with Article 2 of the UN Charter.

The United States’ letter may encourage similar actions from other countries to protect their maritime rights and interests that are legally provided for by UNCLOS. The communication added a voice to the common position of Vietnam, Malaysia, the Philippines, and Indonesia on taking UNCLOS as the sole legal basis for defining, in a comprehensive and exhaustive manner, the scope of their respective maritime entitlements in the SCS.

The situation in the SCS can only be controlled when countries restrain themselves and cooperate in resolving disagreements on the basis of goodwill and in compliance with international law, including UNCLOS.

Nguyen Hong Thao is a professor of the Diplomacy Academy of Vietnam. This article is continuation of his research on the Malaysian extended continental shelf.