Saturday, August 15, 2015

US 'not neutral' in South China Sea? A rebuttal

James Kraska

Aug 14, 2015

The recent article by Mark J. Valencia ("The issue of US 'neutrality' in South China Sea disputes"; Aug 11) complains that the United States is subtly taking sides in the South China Sea disputes. Senior US officials - most recently Assistant Secretary of State for East Asian and Pacific Affairs Daniel Russel on July 21 - have stated that the United States does not take sides in the disputes, and that the US is "neutral when it comes to adherence to international law".

Mr Russel explained that the disputes should be resolved through diplomacy and in accordance with international law, including the United Nations Convention on the Law of the Sea (Unclos).

Mr Valencia notes that the United States is not even a party to the treaty. He sees prevarication, and worries that the US is being "disingenuous and hypocritical", and is really in the camp of rival claimants.

Sovereign rights for fishing and offshore oil exploration and navigation rules in the South China Sea are set forth in Unclos, and China's nine-dash-line claim has no basis under the treaty. Although the United States is not a party to Unclos, it was one of the principal negotiators of the treaty, working with the Soviet Union, China and numerous states on a consensus framework that has global acceptance.

Since 1983 the United States has repeatedly stated that most of the provisions of Unclos reflect customary international law and are legally binding on all states, including the United States.

The US has not joined the treaty because of the legislative power to block it wielded by a minority of conservative US senators, but every US president since 1994 has strongly advocated that the US become a party. Until then, the United States will continue to comply with the rules contained in Unclos, and encourage other states to do so as well.

The US has supported traditional freedom of the seas for ships of all states in ocean areas outside of the territorial sovereignty of coastal states. These freedoms include ship navigation and aircraft overflight, the right to lay and maintain submarine cables and pipelines, and the right to conduct military activities.

But the disputes are not about the United States, or even the United States and China, but rather the legal duty of China and the claimant states, as parties to Unclos, to comply with the treaty that they willingly joined. The moment China became a party to Unclos it acquired a legal duty to comply with the treaty, regardless of the actions of any other country, or its acceptance or rejection of the treaty.

Mr Valencia claims that the United States may challenge China's excessive maritime claims that impede freedom of navigation, but has ignored those of the rival claimants.

In fact, the United States has consistently opposed unlawful sovereignty claims or maritime claims that challenge freedoms of the high seas. Just last year, the US challenged excessive maritime claims by Indonesia, Malaysia and Vietnam.

For many years, the US challenged the legality of historic waters claims by the Philippines and, in 2009, the Philippines amended its claims so that they comply with Unclos.

Finally, the US has objected to claims of internal waters by not just China, but also Cambodia, Thailand, Myanmar, Vietnam, South Korea and Japan, because it believes such claims are inconsistent with Unclos.

The US has questioned the legality of the use of the nine-dash-line map by China because these claims pose a threat to the freedoms of the seas in areas outside of territorial sovereignty. The US is also concerned about the construction of artificial islands by China in the South China Sea because the structures undermine the right of all states to exercise freedoms of the high seas.

Admiral Harry Harris, commander of the US Pacific Command, stated last month that China's land reclamation on features in the South China Sea was an effort to build "false sovereignty" and could have "broad consequences" for impeding freedom of navigation in the region. "While Vietnam, Malaysia, the Philippines and Taiwan have also conducted land reclamation in the South China Sea, their total - approximately 100 acres (40ha) over 45 years - is dwarfed by the size, scope and scale of China's massive build-up," Admiral Harris said. "In only 18 months, China has reclaimed almost 3,000 acres (1,214ha)."

Mr Valencia is also suspicious that Mr Russel implies that only multilateral solutions will solve the disputes - a direct jab at China, which prefers bilateral negotiations and has pushed back against "internationalising" the discussions. Mr Russel's statement does not reflect bias so much as it acknowledges diplomatic reality that when you have a dispute that involves at least five states, you cannot have lasting peace and stability unless they are all involved in fashioning the outcome.

China thrust this regional dispute into the global domain in 2009, when it asked that a map of the nine-dash-line claim of "indisputable sovereignty" be circulated to every member-state of the United Nations.

As US$5.3 trillion (S$7.4 trillion) in goods flow through the South China Sea each year, affected states from Japan to the United States, and as far away as Europe, now have an interest in their peaceful resolution.

Finally, Mr Valencia criticises the United States for encouraging China to participate in the Philippine arbitration, even though Washington withdrew from the 1984 Nicaragua case at the International Court of Justice.

The principal difference here is that ICJ jurisdiction requires state consent, whereas the compulsory dispute-resolution process under Unclos is mandatory. The US participated in the jurisdictional phase of the Nicaragua case, but later withdrew from the merits phase.

One of the key questions before the arbitral tribunal is whether it has jurisdiction in the case. The tribunal is set to render a decision without any Chinese participation.

While reasonable people may differ on matters of jurisdiction or substantive law, peace and stability can best be obtained through acceptance by all parties of the rulings of the arbitration.

The writer is professor in the Stockton Centre for the Study of International Law at the US Naval War College.


The issue of US 'neutrality' in South China Sea disputes
Mark J. Valencia

AUG 11, 2015,

On July 21, United States Assistant Secretary of State for East Asian and Pacific Affairs Daniel Russel gave a keynote speech at a conference on the South China Sea hosted by the Centre for Strategic and International Studies.

In response to a question regarding US neutrality on the disputes from Dr Wu Shicun, president of China's National Institute for South China Sea Studies, Mr Russel stated: "We are not neutral when it comes to adherence to international law. We will come down forcefully on the side of the rules. We take no position, however, on the underlying sovereignty claims. Our concern is with behaviour.

"We also care passionately about the right of a state to make recourse to legitimate international mechanisms as a means of defending its interest or seeking justice or resolution of a dispute."

This is not new nor should it be news. The US has stated as much many times before.

However, China will likely consider this statement in the context of other US policy statements and actions on these (and other) issues between them, as well as the positions of the disputants. In doing so, China is likely to draw the conclusion that the US is being disingenuous and hypocritical and is actually supporting rival claimants against it.

Why so?

Although it has not ratified the 1982 UN Convention on the Law of the Sea, which, in its view, governs the jurisdictional aspects of these disputes, the US insists that China must base its claims solely on it.

This implies that any Chinese "history-based" claim to jurisdictional rights within its nine-dash line is invalid. Outside of China and Taiwan - most would agree. But this is not a neutral position. Moreover, the claims by the Philippines to a large swathe of features and the Sea as Kalayaan, and that of Malaysia to various features because they lie on its claimed continental shelf are as spurious and weak as China's historic nine-dash line claim. Yet the US has remained relatively silent on these claims.

Contrary to the Convention that they have ratified, Vietnam and Indonesia (which has also objected to China's South China Sea claim) do not allow innocent passage of foreign warships in their territorial seas without their consent, while Malaysia does not allow foreign military exercises in its claimed exclusive economic zone (EEZ).

Yet the US has not publicly "called them out", as it has China.

Similarly, the US has announced that it is considering challenging, under its Freedom of Navigation Programme, China's possible claims to territorial seas from some low-tide elevations - but not those of Malaysia, Vietnam or Taiwan.

There are many other apparent contradictions in the US position. The US has also insisted in the past that China negotiate these issues multilaterally with a bloc of claimants - Asean - that includes non-claimants, and, at one point, even offered to mediate.

But China's well-known position is that settlement of the disputes should be negotiated by "sovereign states directly concerned" as stipulated in the 2002 Asean-China agreed Declaration of Conduct of Parties in the South China Sea, and that non-regional parties should not be involved.

Nevertheless, Mr Russel said in his address to the conference: "I don't know anyone in the region who believes that a negotiated settlement between China and other claimants is attainable in the current atmosphere... And then there is the absolutist political position taken by some claimants who insist that their own claims are 'indisputable' and represent territory - however distant from their shores - that was 'entrusted to them by ancestors' and who vow never to relinquish 'one inch'."

This paraphrases several recent statements by China's Foreign Minister Wang Yi , including that (if China lost the Nansha), it "would not be able to face (its) forefathers and ancestors".

Mr Russel's remarks probably do not sound "neutral" to China ; indeed they may convey bias and ridicule.

China may think that Mr Russel's statement implies that China should participate in the proceedings regarding the Philippines' complaint against it. But as the US and China well know, China's refusal to participate in the case is within its rights and certainly not the first time a powerful country has refused to participate in an international court proceeding.

In 1984, Nicaragua filed a complaint against the US with the International Court of Justice (ICJ). The US refused to participate in the proceedings after the court rejected its argument that the ICJ lacked jurisdiction. The ICJ later held that the US had violated international law by supporting the Contras in their rebellion against the Nicaraguan government. The US blocked enforcement of the judgment by the UN Security Council, and thereby prevented Nicaragua from obtaining any compensation.

China will also probably consider Mr Russel's claim of US neutrality in the context of the recent blistering US criticism of China's construction and so-called "militarisation" of features in the South China Sea and its silence regarding similar actions by other claimants.

Not helpful in this regard was soon-to-be Chief of Naval Operations John M. Richardson's remark to the US Senate Armed Services Committee that "many of the things they're (China) doing have an adversarial nature to them". This was followed by the Commander in Chief, Pacific Command, Admiral Harry Harris, repeating Deputy Secretary of State Tony Blinken's comparison of "what China is doing with those islands to what Russia did with Crimea".

In sum, China is likely to consider US claims of neutrality in these matters to be disingenuous and duplicitous - and it is rather easy to see why. The US needs to be consistent and stop hectoring China into a political corner. Otherwise, it may not like the result. Indeed, China may conclude that the US considers it an adversary, and plan and act accordingly.

The writer is adjunct senior scholar at the National Institute for South China Sea Studies in Haikou, China.

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