The US promotes the rule of law and the enforcement of the South China Sea Arbitration Ruling

Beijing promotesRecently, public opinion has paid much attention to the US-China strategic competition in the South China Sea, demonstrated through intense military exercises by both sides. However, all the US’ moves over the past month in the South China Sea show that the United States is strongly promoting law enforcement, including the 1982 United Nations Convention on the Law of the Sea and the Arbitration Ruling dated July 12, 2016 on the South China Sea. Specifically,

1. On June 1, 2020, the United States sent a letter to the Secretary-General of the United Nations, Antonio Guterres, protesting China’s demands and aggressive actions in the South China Sea. This letter was signed by Ms. Kelly Craft, the United States Ambassador to the United Nations. The letter emphasized: “Specifically, the United States objects to China’s claim to “historic rights” in the South China Sea,” and “the United States notes in this regard that the Tribunal unanimously concluded in its ruling, which is final and binding on China and the Philippines under Article 296 of the UNCLOS, that China’s claim to historic rights is incompatible with the UNCLOS.”

In the letter, “the United States reiterates its prior objections to any claim of internal waters between the dispersed islands China claims in the South China Sea, and to any claim of maritime zones derived from treating island groups in the South China Sea as a collective.” The letter stated clearly: “Article 5 of the Convention provides, in express and unambiguous terms, that the normal baseline applies “[e]xcept where otherwise provided in this Convention” and “No provision of the Convention establishes an applicable exception to the normal baseline that would allow China to enclose within a system of straight baselines… the dispersed islands and other features… in the South China Sea”.

The letter emphasized: “the United States objects to any claimed maritime entitlements based on features that are not islands within the meaning of Article 121(1) of the Convention and thus do not generate maritime zones of their own under international law” and asserted that the low-tide elevations that lie beyond a lawfully generated territorial sea entitlement “are not subject to appropriation and cannot generate a territorial sea or other maritime zones under international law”.

The US’s views, as stated in the letter, are completely consistent with the Ruling of the South China Sea Arbitration initiated by the Philippines. Notably, the letter also emphasized that the Philippines, Indonesia, Vietnam and Malaysia had made their objections to China’s claims in the South China Sea in their notes verbal to the United Nations. In the letter, Washington once again urged Beijing to comply with the Tribunal’s July 12, 2016 decision; and to cease its provocative activities in the South China Sea; at the same time, requested the circulation of this document to all member states as an official document of the United Nations General Assembly.

Legal experts believe that this move marks the US’ official engagement in the legal battle of diplomatic notes on the South China Sea and the US’ goal is to affirm its clear position in support of the Tribunal’s July 12 2016 decision and started a legal battle around the South China Sea issue on the occasion of the 4th anniversary of this decision. It is also a step to lay the legal ground for the US’ next move in protecting the law-based order in the South China Sea.

2. The US’ push for the rule of law in the South China Sea continues to be reflected in US Secretary of State Mike Pompeo’s tweet on June 27. Accordingly, Washington welcomes the Statement of the 36th ASEAN Summit on the South China Sea and opposes China’s hegemonic ambition. In his tweet, Secretary Pompeo emphasized, “The United States welcomes ASEAN leaders’ insistence that South China Sea disputes be resolved in line with international law, including UNCLOS. China cannot be allowed to treat the SCS as its maritime empire”. Pompeo's tweet has clearly demonstrated the US’ determination to promote the law-based order in the South China Sea.

Next, the US continued to express its legal views in the statement of the US Department of Defense on July 2, 2020, opposing Chinese exercises around the Paracel archipelago in early July. The statement made it clear that “The Department of Defense is concerned about the People’s Republic of China (PRC) decision to conduct military exercises around the Paracel Islands in the South China Sea on July 1-5.”; at the same time, emphasized that “The designated area where the exercises are due to take place encompass contested waters and territory. Conducting military exercises over disputed territory in the South China Sea is counterproductive to efforts at easing tensions and maintaining stability. The PRC’s actions will further destabilize the situation in the SCS.” This has showed the US’ change of legal opinions on the issue of Paracel Islands.

First of all, it can be seen that this is the first time the Pentagon has voiced concern about an exercise in the Paracel Islands. Before that in 2016, Washington did not have any comment on China’s large scale drill in the Paracel Islands. For the drill in July 2019 in the South China Sea, which covered part of the Paracel Islands and the area between Macclesfield bank and Spratly Islands, the US did express their concern, but merely focused on the DF-21D anti-ship ballistic missile test and such concern was quoted by the media as anonymous sources. It was not until later that a number of officials publicly spoke up about this issue although did not mention Paracel Islands.

Thus, the fact that the US now voices its opinions about the drill in the Paracel Islands on July 2 can be seen as a change towards clearer and stronger stance.

Second, it is noteworthy that the US now declares the Paracel Islands a disputed territory. The US had remained “neutral” and refrained from supporting any party in South China Sea territorial disputes. Some researchers believe that back in 1974, given the weak position of the Republic of Vietnam’s government in the South, the US turned a blind eye to China’s use of force to invade the Paracel Islands through a bloody battle with the Republic of Vietnam’s Navy. That is to say the US hardly ever expresses a legal opinion on the issue of sovereignty over the Paracel Islands.

In the past 2-3 years, the US Navy has repeatedly conducted freedom of navigation operations in the Paracel Islands and many times the 7th Fleet spokesperson mentions the disputed area but does not publicly mention the sovereignty dispute over the Paracel. This is also one of the reasons why Beijing has always asserted that the Paracel is its indisputable territory.

Observers say that, in the face of China's aggressive escalation in the South China Sea, the US authorities feel that it is necessary to express a clear legal stance on related issues in the South China Sea. It seems that this is the first time that the US Department of Defense expressed its view on sovereignty disputes over the Paracel in an official statement. Let us recall that in early April 2020 when China sunk a Vietnamese fishing vessel in the Paracel, in their comments, the State Department and the Department of Defense did not refer directly to territorial disputes.

In a press conference on July 8, 2020, US Secretary of State Mike Pompeo stated that: “From the mountain ranges of the Himalayas to the waters of Vietnam’s exclusive zone, to the Senkaku Islands, and beyond, Beijing has a pattern of instigating territorial disputes. The world shouldn't allow this bullying to take place, nor should it permit it to continue.” Pompeo's comments showed the United States’ step-by-step effort to lay the legal groundwork for preventing Beijing's law-defying actions in the region.

3. Recently, the US Navy and Air Force have taken rapid-fire actions within the framework of international law in the South China Sea, including the large scale exercises by USS Nimitz and USS. Ronald Reagan in early July 2020. In all the US navy's freedom of navigation operations in the South China Sea or US aircraft operations over the South China Sea, the Pentagon has always insisted that American warships and aircraft would operate wherever allowed by international law.

According to the US Navy’s statement on the exercises of the USS Nimitz and USS Ronald Reagan Carrier Strike Group, “these efforts are in direct support of U.S. resolve to fly, sail, and operate wherever international law allows”. It is obvious that the US naval and air force’s operations on the ground are aimed at ensuring the enforcement of international law in the South China Sea.

In previous occasions, Washington has repeatedly condemned Beijing’s bullying and harassing acts which interfered with other countries’ oil and gas activities. Recently, in an online talks with Vietnamnet e-newspaper on the occasion of the 25th anniversary of Vietnam-US diplomatic relations, US Ambassador to Vietnam Daniel Kritenbrink emphasized that the most important thing was to ensure international law is respected and that all countries act in accordance with international law. No country can use force or coercion or bullying to try to advance their interests. The US opposes the efforts by some countries in the region to try to interfere with long-standing energy exploration of regional countries.