South China Sea: the US is putting the military cart before the diplomatic horse

Freedom of navigation operations are not necessary to bolster the US’ legal position. Diplomacy is the usual response of other nations, and it is far more consistent with the UN Charter
Washington rails against Chinese ‘bullying’. But some would say that is exactly what the US is doing

Mark J. Valencia

Published: 9:15am, 17 Sep, 2021

Why you can trust SCMP

Five years after the international arbitration court ruling against China’s claim in the South China Sea, US Secretary of State Antony Blinken declared in a statement: “Nowhere is the rules-based maritime order under greater threat than in the South China Sea.” I fully agree.

While his criticism was targeted at China and its refusal to comply with the decision against its nine-dash line claim in the South China Sea, the July statement also applies to most claimants and actors there – including the United States.

Blinken’s statement is confirmation that the Biden administration is continuing the Trump administration’s aggressive approach to China and the South China Sea.

Around the same time last year, Blinken’s predecessor Mike Pompeo vowed: “We will support countries all across the world who recognise that China has violated their legal territorial claims as well … we will use all the tools we can.”

These belligerent remarks were followed by US sanctions on Chinese companies that played a “role in helping the Chinese military construct and militarise the internationally condemned artificial islands in the South China Sea”. These words and actions increased tension with China, and it is clear that Southeast Asian states’ plea for peace and stability in the region has fallen on deaf ears.

Indeed, the new agreement announced on Thursday between Australia, the US and UK to provide nuclear-powered submarines to Australia that will presumably patrol the South China Sea only adds to this upward spiral of tensions.

02:32

Washington’s hardened position on Beijing’s claims in South China Sea heightens US-China tensions

In Blinken’s statement, the implication that the US upholds the international order is itself hypocritical. Under Trump and Pompeo, it was the US that undermined the concept of international community and alienated friends and allies.

Both Blinken and Pompeo criticised China for violating the international maritime order. But the US has hardly been a paragon of virtue in such matters. It has not even ratified the UN Convention on the Law of the Sea (UNCLOS) that it proclaims is the international standard for activities in oceans and seas.

Also, the US does not always abide by international rulings. In 1986, when the International Court of Justice determined that the US had violated international law by supporting the rebels, or contras, fighting the Nicaraguan government and by mining Nicaragua’s harbours, Washington rejected the verdict.

Meanwhile, the US responds to the claims in the South China Sea with what it calls freedom of navigation operations (Fonops), although others might consider them gunboat diplomacy.

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They purport to demonstrate and protect freedom of navigation, and challenge claims that violate that principle. But the US is disingenuously conflating freedom of commercial navigation with freedom of military vessels to intimidate and spy on countries – in this case, China. China has never tried to interfere with freedom of commercial navigation beyond its territorial sea.

The US and China have different interpretations of UNCLOS. Countries including China argue that the convention is a package deal, and that non-ratifiers are not entitled to benefit from it while eschewing their part of the bargain.

They contend that interpretation of key terms relevant to freedom of navigation – such as “other internationally lawful uses of the sea”, “abuse of rights” and “peaceful purposes” – are evolving through state practice and that non-ratifiers like the US do not have the legitimacy to interpret them to their advantage, let alone unilaterally enforce them.

The Pentagon says Fonops are routine and not directed at any country. But many countries would view a top-of-the-line US warship purposefully violating their laws as intimidating. At the very least, it is an unfriendly act that could influence relations in other spheres.

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Fonops are not necessary to bolster the US’ legal position. Although no country should acquiesce to claims it considers illegal, non-agreement can be effectively and sufficiently demonstrated by verbal and written diplomatic communiqués.

The diplomatic option is the usual response of other nations, and it is far more consistent with the UN Charter, which states: “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”

In modern international law, all the claims to sovereignty over the features in the Spratly region have serious weaknesses.

According to UNCLOS, “low-tide elevations” – features that are above water only at low tide – cannot be claimed as territory and thus do not generate territorial seas. Mischief Reef is one such feature. China claims it, has built on it and occupies it. The US repeatedly challenges its claim by conducting Fnoops.

But China is not the only offender. At least three of Vietnam’s 20-odd militarised outposts in the Spratlys may be on low-tide features. However, these claims seem exempt from such US challenges.

06:24

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In his statement, Blinken said China “continues to coerce and intimidate Southeast Asian coastal states, threatening freedom of navigation in this critical global throughway”.

But the US itself attempts to coerce and intimidate states over what it considers to be violations of UNCLOS. Indeed, the US deploys its formidable symbol of naval power – its aircraft carrier strike groups – to the South China Sea, where they conduct “maritime strike exercises” and demonstrate “the capability of forward-deployed naval forces to quickly respond across the region”. That certainly sounds like intimidation.

US officials rail against Chinese “bullying”. But some would say that is exactly what the US is doing, by putting the military cart before the diplomatic horse in the South China Sea. Indeed, it appears that the militarists are prevailing in the policy debate on US involvement in the region.

The US surely has better things to do than police the exclusive economic zones of countries halfway around the world, and perhaps end up provoking a conflict with a great power that would surely bring disaster to all.

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China