KUALA LUMPUR, July 19: On July 13, US Secretary of State Mike Pompeo (pic, below) issued a statement regarding US position on maritime claims in the South China Sea, saying that "Beijing's claims to offshore resources across the most of the South China Sea are completely unlawful, as is its campaign of bullying to control them."The day before, Secretary of Foreign Affairs of the Philippines also made a statement marking the fourth anniversary of the South China Sea arbitration award.
The US latest policy shift on the South China Sea could be seen as an echo and support for its traditional allies and partner nations in the region.
In the context of the continuing deterioration of the overall China-US relations due to the mounting strategic rivalry between them, demonstrated specifically by their recent frictions on trade, technology, Hong Kong and covid-19 pandemic, the more articulate criticism of the US against China’s South China Sea claims could also be seen as the intention of the US administration to open another battle ground.
Therefore, it is highly likely that the South China Sea may become an escalating flashpoint between the two countries. Only one day after the July 13th statement, the USS destroyer "Ralph Johnson" conducted a "Freedom of Navigation Operation" in the Spratly Islands, which may further fuel the tensions in the South China Sea.
In the past few months, “lawfare” around the South China Sea has been intensifying. In December 2019, Malaysia filed a submission to the Commission on the Limits of the Continental Shelf on part of the outer limits of its claimed continental shelf beyond 200 nautical miles in the South China Sea.
Subsequently China, Indonesia, the Philippines and Vietnam submitted note verbales to the Secretary-General of the United Nations, expressing their respective claims and concerns.
It is worth noting that the United States, as a non-coastal state of the South China Sea, non-claimant state and non-party to the territorial and maritime disputes therein, also submitted a note verbale to the UN Secretary-General on June 1 this year, arguing that China’s historical rights claim within the Nine Dash Line, maritime claims with regard to the off-shore archipelago and the straight baseline claim have no legal basis.
It can be said that the change of the US’ South China Sea policy from a neutral third party to an active supporter of part of the claimants against another has already taken shape at that time.
In the July 13th statement, Secretary Pompeo is aligning the US position on the Beijing's maritime claims in the SCS with the South China Sea arbitral tribunal's decision, holding that the award of the tribunal is final and legally binding on China and the Philippines. In fact, just a few days before Secretary Pompeo issued that statement, Washington had disclosed this information to some of its allies and partners in Southeast Asia.
Secretary Pompeo expressed his views on legal status and maritime jurisdiction of Mischief Reef, Second Thomas Shoal, Vanguard Bank, Luconia Shoals and exclusive economic zone of the Natuna Islands, claimed respectively by the Philippines, Vietnam, Malaysia and Indonesia.
The Philippines, Vietnam, Malaysia and Indonesia are all encouraged. Vietnam even believes that once it initiates a third-party compulsory settlement procedure against China in the future, the US official position will definitely help Vietnam win the case.
From China’s view, Washington’s aggressive approach is not helpful for building mutual trust between China and Southeast Asian countries, and will undermine the atmosphere for the ongoing code of conduct (COC) negotiations.
In the author's opinion, it seems that Secretary Pompeo lacks an in-depth understanding of the South China Sea issue and the history of South China Sea disputes.
To some extent, this also indicates that the diplomatic team inside the Trump administration still lacks a person who has rich experience and is familiar with East Asian and South-East Asian affairs.
Secretary Pompeo asserts that China has never formally proposed the Nine Dash Line claim before 2009 and that the Spratly Islands cannot generate maritime rights as a whole.
As a matter of fact, as early as 1948, the Chinese government had made public in an official map the dotted line. For a long time since then, no country raised any express objection.
As a matter of history and geography, China continuously always took the entire Spratly Islands, including the islands, shoals, banks and all other maritime features therein, as a single off-shore archipelago.
Other claimants, including Vietnam and the Philippines, also claimed those features as a single archipelago in the past.
Washington declares that it seeks to preserve stability, uphold freedom of the seas, maintain the unimpeded flow of commerce, and settle the disputes peacefully.
These are also goals collectively upheld by China and the South-East Asian countries.
In fact, the freedom of navigation enjoyed by all states under international law in the South China Sea has never been affected, and China and the Southeast Asian countries are the major beneficiaries of the free and safe sea routes in the South China Sea and the free flow of commerce in the region.
As far as the peaceful settlement of disputes is concerned, there have been consensus among the claimants that the territorial and maritime disputes shall be settled by negotiations, and in the past few years, there were bilateral consultation mechanisms on the maritime issues between China and the Philippines and Malaysia respectively.
Particularly, the bilateral mechanism between China and the Philippines was established as a sign of departure from the aftermath of the South China Sea arbitration and a return to the “normal track” of disputes settlement.
Among the world’s major sea powers, the United States is the only country that has not ratified the 1982 United Nations Convention on the Law of the Sea. The United States also did not abide by all the judgments of the International Court of Justice in cases where it was a party.
The United States believes that it has legitimate grounds to do so, so does China.
Washington may well understand these game rules in international politics. It seems that legal norms are only part of the tools used by the United States, out of its self interest rather than a desire to uphold the integrity of the international legal system, to add pressures upon China.
The territorial and maritime disputes in the South China Sea are not pure legal issues, but compose a set of complex controversies involving history, geopolitics and international relations.
They have to be well managed while the claimants seek final and durable solutions by patient diplomacy. Since the last quarter of 2016, there have been positive developments in this regard.
A series of new consensus have been made, such as managing crises, promoting cooperation, and speeding up COC consultations.
As one of the important users of the South China Sea, the United States should play a more constructive role instead of taking sides against China, adding geopolitical complexities to the issues.
As the US presidential election is four months away, the world shall also watch whether the Trump administration will play the South China Sea card for its re-election.
Ding Duo is an associate research fellow at the National Institute for South China Sea Studies in Hainan, China.
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