VAL G. ABELGAS: South China Sea: US should do more

After a few months of silence and inactivity in the South China Sea, the US State Department released last week a study conducted by its Bureau of Oceans and International Environmental and Scientific Affairs that debunked China’s sweeping claims in the disputed waters.

Describing China’s sweeping claims as “unlawful,” the State Department panel said such claims “gravely undermine the rule of law in the oceans and numerous universally recognized provisions of international law reflected in the Convention,” referring to a 1982 United Nations treaty on the law of the sea ratified by China, but not the United States.

China claims sovereignty over “virtually all South China Sea islands and their adjacent waters,” but has not made specific claims in the area. Instead it uses a “nine-dash line” that goes past Vietnam and the Philippines and towards Indonesia, an area that encompasses virtually all of the South China Sea” to describe its claims.

The State Department paper rejected four major bases for China’s sweeping claims:

  • China’s sovereignty claim over un-claimable features– The US study questioned China’s claim to “more than one hundred features in the South China Sea that are submerged below the sea surface at high tide,” stressing that UNCLOS is “crystal clear” that submerged maritime features and low-tide elevations – rocks or shoals “above water at low tide but submerged at high tide” – do not fit the definition of an island and do not generate their own territorial sea.
  • China’s use of straight baselines to claim waters around and between island groups – China is claiming the right to draw a circle of sovereignty around self-defined island groups, but UNCLOS is clear that China’s self-defined island groups do not qualify as islands nor as island groups since they are “geographically isolated” from each other.
  • China’sclaim of maritime zones (and associated rights and entitlements, like internal waters, territorial seas, contiguous zones, and EEZs) – The study said maritime law accord these rights only to archipelagic states and not island groups governed by continental states, like China. Also, just as UNCLOS does not allow “straight baseline” claim, it also does not allow China’s claim of “internal waters.”

In addition, China says that based on its “maritime zone” claim, it can regulate military activity within its EEZ to justify its warning foreign planes and ships for alleged incursions. International law, however, allows only regulation of economic activity within a nation’s EEZ.

  • China’s claims to “historic rights”–Chinese officials insist that the areas included in the “nine-dash line” historically belong to China. Tracing back its historical ties to the South China Sea during the Han Dynasty, they said the Chinese people have been sailing that part of the sea and discovered some of the land features in the region. The study, however, debunks these claims as having no “legal basis” in international law since China has not offered any specifics. Scholars have said the International Convention on the Law of the Sea (UNCLOS) does not grant claimants the right to use historical rights to back their claims.

The study is a blatant rejection of China’s sweeping claims in the South China Sea by the United States and a reiteration of an earlier statement made in July 2020 by then Secretary of State Mike Pompeo, who said that the US aligns with the tribunal’s 2016 ruling and that China’s expansive claims in the South China Sea are “completely unlawful.” A few days later, then Assistant Secretary of State for East Asian and Pacific Affairs David Stilwell said that China seeks to “replace international law with rule by threats and coercion” as he slammed China’s misdeeds in the disputed waters.

In July 2016, the State Department acknowledged the legitimacy of the UNCLOS tribunal’s decision, and said it recognized the decision as “final and legally binding on both China and the Philippines.” It also published a white paper in 2014, which made a detailed analysis of China’s nine-dash line claim and the limited conditions under which it could possibly adhere with the international law of the sea as codified in UNCLOS.

But just as China ignored their forceful statements in 2014, 2016 and 2020, Chinese officials are again downplaying the report, saying that it “distorts international law and misleads the public.” In 2016, China, which is a signatory to UNCLOS, dismissed the tribunal ruling with President Xi Jinping saying China’s “territorial sovereignty and marine rights” in the seas would not be affected by the ruling, while saying that China was still “committed to resolving disputes” with its neighbors.

The Communist Party mouthpiece newspaper, People’s Daily, on the other hand, said the tribunal had ignored “basic truths” and “trampled” on international laws and norms. “The Chinese government and the Chinese people firmly oppose [the ruling] and will neither acknowledge it nor accept it,” it added.

Clearly, the Chinese government will continue to completely ignore any statements made by the US, the Philippines, or any other nation as it aggressively asserts sovereignty over the South China Sea, which is home to huge oil and natural gas deposits that China needs, and to fertile fishing grounds to supply its food requirements. In addition, the South China Sea lanes account for at least a third of the world’s maritime trade and control over them gives China unlimited access for its maritime trade. More importantly, China needs the disputed waters as a buffer zone in case the US attacks the Chinese mainland, and as a base for military operations like sea patrol for its nuclear ballistic missile submarines, and military surveillance.

The United States and its allies need to do more than issue statements and white papers to keep China off the South China Sea. For starters, the US should consider finally signing the UNCLOS to give more credibility to its stance. Secondly, the US and its allies should consider imposing sanctions on businesses and individuals involved in illegal activities in the South China Sea. Thirdly, it should show more vigorously that it would not abandon its allies in Asia.

Also, the US needs to elevate its diplomatic efforts to win over nations that are now gearing towards aligning with China. ASEAN members, for example, are still sharply divided on the issue of how to approach the South China Sea row. Even the Philippines, which has already won favorable ruling from the UNCLOS tribunal, has been toeing the China line on the issue under the China-friendly administration of President Rodrigo Duterte, who has allowed the Chinese to trample on our sovereignty, to explore our natural resources, go into sensitive businesses like the telecommunications industry, and bury the country in a debt trap that will take generations to untangle.

We as a people can do our share to get the country out of this stranglehold by making sure to elect in May only officials who will refuse to be cowed by China’s aggression, and vote out those who will spread our Motherland’s legs while she is being raped by foreign aggressors.