On Monday, July 13, the U.S. Department of State unveiled an important set of clarifications concerning U.S. policy in the South China Sea. Specifically, the new policy positions explain in greater detail the U.S. government’s legal interpretations of certain excessive maritime entitlements in the South China Sea, with a focus on pushing back on Chinese claims.
The announcement came one day after the four year anniversary of the July 2016 arbitral tribunal ruling in the Philippines’ 2013 case against China over maritime entitlements in the South China Sea. In that ruling, a Hague-based international tribunal granted an award overwhelmingly in the Philippines’ favor, rejecting China’s maritime entitlement claims around specific features in the Spratly Islands.
“We are strengthening U.S. policy on South China Sea maritime claims, according to international law, in rejection of Beijing’s intimidation, bullying, and claims of maritime empire,” U.S. Secretary of State Mike Pompeo declared on Twitter on Monday afternoon.
There’ll be more to say on the U.S. policy change in the coming days, but an initial read suggests that the change is both significant and less dramatic than it could have been. I understand that prior to the U.S. announcement, specific U.S. partners and allies in the region had been briefed on the contours of the new clarifications.
In any case, a few preliminary observations on the text of the new U.S. position, as released by the State Department.
First, the driving impulse to this policy review appears to be China’s attempt to claim offshore resources in disputed waters. At the outside, the revised policy notes 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.”
There have been indicators that U.S. policy was heading in this direction. Last year, the U.S. State Department and Defense Department put out multiple statements calling out Chinese “bullying” of Vietnam in its exclusive economic zone — particularly as a Chinese survey ship conducted activities within waters claimed by Hanoi.
Second, the U.S. position on freedom of navigation and overflight remains largely unchanged. Here, the position is basically the same from the one articulated during the first term of the Obama administration, when freedom of navigation was identified as a core U.S. interest in the South China Sea.
Third, and where the statement gets really interesting for South China Sea legal wonks, is the U.S. claim that China “has no legal grounds to unilaterally impose its will on the region,” and that Beijing has “offered no coherent legal basis for its ‘Nine-Dashed Line’ claim in the South China Sea since formally announcing it in 2009.” To support both these assertions, the United States cites the July 12, 2016, award in Philippines v. China.
Again, there have been signs that U.S. policy was heading here. A note verbale submitted by the U.S. Ambassador to the United Nations on the South China Sea earlier this summer made a similar assertion. In three bullet points, the State Department statement clarifies how exactly the July 2016 ruling informs U.S. policy, noting that the U.S. position is being aligned “with the Tribunal’s decision.” The three points are as follows:
- The PRC cannot lawfully assert a maritime claim – including any Exclusive Economic Zone (EEZ) claims derived from Scarborough Reef and the Spratly Islands – vis-a-vis the Philippines in areas that the Tribunal found to be in the Philippines’ EEZ or on its continental shelf. Beijing’s harassment of Philippine fisheries and offshore energy development within those areas is unlawful, as are any unilateral PRC actions to exploit those resources. 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.
- As Beijing has failed to put forth a lawful, coherent maritime claim in the South China Sea, the United States rejects any PRC claim to waters beyond a 12-nautical mile territorial sea derived from islands it claims in the Spratly Islands (without prejudice to other states’ sovereignty claims over such islands). As such, the United States rejects any PRC maritime claim in the waters surrounding Vanguard Bank (off Vietnam), Luconia Shoals (off Malaysia), waters in Brunei’s EEZ, and Natuna Besar (off Indonesia). Any PRC action to harass other states’ fishing or hydrocarbon development in these waters – or to carry out such activities unilaterally – is unlawful.
- The PRC has no lawful territorial or maritime claim to (or derived from) James Shoal, an entirely submerged feature only 50 nautical miles from Malaysia and some 1,000 nautical miles from China’s coast. James Shoal is often cited in PRC propaganda as the “southernmost territory of China.” International law is clear: An underwater feature like James Shoal cannot be claimed by any state and is incapable of generating maritime zones. James Shoal (roughly 20 meters below the surface) is not and never was PRC territory, nor can Beijing assert any lawful maritime rights from it.
By my reading, each of these points — with a few notable exceptions — finds precedent in the 500-page 2016 award. The notable exception is in point two, which makes reference to features that were outside of the ambit of the 2016 award, including Vanguard Bank, Luconia Shoals, and Natuna Besar. All, nonetheless, have been prominent flashpoints in recent years between China and claimant states.
The writing in parts of the State Department release could be clearer. For instance, the statement in point two, on “PRC claim to waters beyond a 12-nautical mile territorial sea” pertains specifically to claims derived off PRC-held features in the Spratly Islands. The 2016 award found that none of these features met the United Nations Convention on the Law of the Sea threshold for classification as a natural island, which would have otherwise granted them a 200 nautical mile exclusive economic zone.
As a result, only a handful of features were deemed to be “rocks,” entitled to a 12 nautical mile territorial sea. Others, meanwhile, were acknowledged as low-tide elevations, entitled to no exclusive maritime claims. This was particularly important in the context of China’s seven artificial island facilities, whereby the previous status of the features was irreversibly changed by Chinese land reclamation activities in the years leading up to the ruling. As I noted back in July 2016, the tribunal’s award took the following view of specific features:
Regarding the status of features in the Spratly Islands–a key feature of the Philippines’ case against China–the Tribunal ruled that “Scarborough Shoal, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef are high-tide features and that Subi Reef, Hughes Reef, Mischief Reef, and Second Thomas Shoal were submerged at high tide in their natural condition.” These designations comport with the Philippines’ original positions in its filing to the Tribunal, demonstrating that the country’s legal reasoning for why these features should be considered either high-tide features or low-tide elevations was accurate.
The Tribunal disagreed with the Philippines on the status of just two features: Gaven Reef (North) and McKennan Reef, concluding that both are high tide features. Under UNCLOS, high tide features or “rocks” are entitled to a 12 nautical mile territorial sea.
It’s notable, also, that the new U.S. position does not cross an important Rubicon in maintaining the general agnosticism regarding the territorial sovereignty of features. Just as the United States took no position on who owned what in the South China Sea in years past, it will continue to do so.
While its jarring to see the Trump administration appeal to an international arbitral decision given, well, everything else about the administration’s conduct on the world stage, there’s inherently little objectionable here. It makes sense for Washington to do this.
The 2016 award should have been a moment for states supporting the rules-based order in the South China Sea to stand by the Philippines and affirm that might does not make right in international affairs. While the U.S. supported the award at the time, much of this support was immediately undermined by the then-newly inaugurated Philippine President Rodrigo Duterte, who spun Manila’s geopolitical orientation by 180 degrees and began rapprochement with China.
In practical terms, even with a U.S. election just months away now, I’d expect this newly reinterpreted U.S. policy toward the South China Sea to outlast the Trump administration.
In the U.S.-China context, it’s not difficult to see that this latest step will add to a growing list of flashpoints between the two countries. It’ll be interesting to see how Beijing chooses to respond the State Department’s statements. While China rejected the 2016 arbitral tribunal’s validity and didn’t participate in legal proceedings, it submitted a position paper. One low-hanging option would be to react with a reiteration of Beijing’s legal position.
Separately, the new understanding could open a new front in how Beijing chooses to handle ongoing U.S. military activities in the South China Sea. The State Department’s clarifications come not long after two U.S. Navy carrier strike groups conducted joint operations in the South China Sea for the first time. China has taken to criticizing the United States for “militarization” activities in the region and may grant a freer hand to the China Coast Guard and People’s Liberation Army Navy to shadow U.S. vessels. We may even see a return to dangerous and unsafe conduct, as a means of sending a message.