ISSN 2330-717X

US Bill Targeting China In South China Sea Is Misguided And Hypocritical – Analysis


As both a response and contribution to the anti-China hysteria sweeping Washington, US Senators Tom Cotton (R-Arkansas), Marco Rubio (R-Florida) and Ben Cardin (D-Maryland have reintroduced the South China Sea and East China Sea Sanctions Act (the Bill).    

Its purpose is to “impose sanctions against Chinese entities that participate in Beijing’s attempts to assert its expansive maritime and territorial claims in these disputed regions.” Regarding the South China Sea, this bill is ill-informed, misguided, biased and hypocritical.  If it becomes law, it would seriously damage US-China relations. 

Its rationale is unfounded. Cotton asserted that “[China’s] goal is to control this critical trade route and cement its dominance of the Indo-Pacific region.  Our bill would sanction individuals and companies that are helping Beijing steal the South China Sea.”  

Rubio said “This bipartisan bill strengthens efforts by the U.S. and our allies to counter Beijing’s illegal and dangerous militarization of disputed territory that it has seized in the South China Sea.”  Cardin added that “China has been bully in both the South and East China Seas, encroaching on and intimidating its neighbors.  “The United States will defend the free-flow of commerce and freedom of navigation, as well as promote the peaceful diplomatic resolution of disputes consistent with international law.” 

These statements are based on myths, untruths and exaggerations.  The facts are that other claimants have done the same as China; it is the U.S. that dominates the South China Sea militarily, and wants to continue to do so; and China has never threatened freedom of navigation for commercial vessels and is unlikely to do so in peacetime.

Indeed, the history of the dispute reveals a rather different picture.  In the 1970s and 80s while the U.S., Japan and Australia remained silent– other claimants occupied features there that China considered its sovereign territory.  They then altered the features by adding to them, built structures, ports and airstrips, and allowed access for their militaries. They appropriated the largest and most useful features under spurious claims leaving mostly features submerged at high tide.

Now that China is trying to ‘catch up’ by building on and occupying some of the unoccupied features, the other claimants have accused it of not exercising “self-restraint” and thus violating the China- ASEAN Declaration on the Conduct of Parties in the South China Sea (DOC). But other claimants have also violated this provision by continuing their reclamation and construction activities after the 2002 agreement.

Vietnam now occupies about 25 such features compared to China’s 8. China’s artificial island building on submerged features is wrong – but all others have done this.

From China’s perspective, the former Western colonies have been stealing its fish and petroleum in collaboration with outside Western companies.  By responding in like manner, China has been labeled a ‘bully’ by the smaller countries. But this pejorative term is often used by smaller countries in their interactions with larger ones – – including the U.S. Indeed, China is no more a “bully” in international affairs in the region than the U.S. 

To maintain its military dominance over the South China Sea, it is now flying and sailing military assets in Freedom of Navigation Operations (FONOPs) over and through China- claimed areas in what can be perceived as a show of force or gunboat diplomacy. The U.S. also uses FONOPs to demonstrate its disagreement with smaller countries’ maritime claims and some of them perceive this as “bullying”.  Moreover, in China’s eyes, the U.S. has “militarized” and continues to “militarize” the whole region with its forward deployed troops, assets and patrols.

China has declared that it will not abide by an international arbitration panel’s decision against it. The U.S. has criticized it for this.   China should indeed be criticized for taking this position – but not by the U.S. The U.S. has not ratified UNCLOS and thus cannot be brought before its Tribunal.  It did not abide by the decision of the International Court of Justice when it ruled for Nicaragua against it, and has now defied the vast majority of the UN by backing the UK in its unlawful refusal to return the Chagos archipelago to Mauritius.  To criticize China for not following international law is like the pot calling the kettle black.  

The Bill has several significant internal contradictions and political implications. 

It ties the US Defense Department’s hands regarding FONOPs by prohibiting “any movement of aircraft or vessels that implies recognition of the sovereignty of China over territory or airspace contested by ASEAN nations.”  This means that its FONOPs must not be innocent passage around any South China Sea feature.  Non-innocent passage means undertaking provocative maneuvers, live fire exercises, launching and receiving aircraft, and the like.

 The Bill would punish China for deploying “surface-to-air missile to any of the artificial islands it occupies including Fiery Cross Reef.  This is plainly contrary to international law.  Fiery Cross Reef is a legal rock claimed and occupied by China and

China has the right to defend its sovereignty claim.

It bolsters the claims and activities of ASEAN claimants Malaysia, the Philippines and Vietnam in the Spratlys and Vietnam’s claim to the long time China-occupied

Paracels which it claims along with Taiwan. It does this by making China subject to sanctions if it engages in actions or policies that threaten the peace, security or stability” of areas in the South China Sea that are contested by one or more members of ASEAN. Activities targeted by the Bill include land reclamation, the making of islands, lighthouse construction and the building of mobile communication infrastructure.  The other claimants to the Spratlys have engaged and in such activities on features claimed by China—and continue to do so.

  It also gives an exception to Taiwan from any act recognizing Chinese sovereignty over the South China Sea and East China Sea.  It presumably does this because Taiwan has many of the same claims as China and some of them violate international law.  It would seem that what is good for the goose should be good for the gander. 

The Bill’s chances of becoming law are not good. As Bonnie Glaser of the Center for Strategic and International Studies says ” _ _ most administrations tend to balk at Congress having that much say over foreign policy _ _. If it ever gets support within the Senate, there’ll probably have to be a compromise with the House. My guess is that it would not ultimately be passed in this form.”

Even if it did become law it is not likely to be effective.  Andrew Thompson of the National University of Singapore said “The act will not reduce tensions, and it will potentially give China justification to harden its position and even seek to further restrict access to international waters and airspace”.

 Moreover, according to Glaser, “The U.S. can’t roll back Chinese island building and militarization in the South China Sea. In my view, this action is like closing the door after the horse has left the barn.”  The Bill is “not about bad actors, it’s really just about China.” These weaknesses, contradictions and implications need to be addressed. 

This piece first appeared in the IPP Review.

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Mark J. Valencia

Mark J. Valencia, is an internationally known maritime policy analyst, political commentator and consultant focused on Asia. He is the author or editor of some 15 books and more than 100 peer-reviewed journal articles. He is currently an Adjunct Senior Scholar, National Institute for South China Sea Studies, Haikou, China.

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