US Churns The South China Sea – Analysis

By Manoj Joshi

The US turned up the heat on China just a notch more on Wednesday when it imposed visa restrictions on various Chinese individuals who have been involved in Beijing’s artificial island building programme in the South China Sea. In addition, the US Department of Commerce added 24 Chinese state owned enterprises, including the China Communications Construction Company (CCCC), which have been involved in the island-building programme to its Entity List, which means that commercial dealings with them would require a license. Targeting these companies is also a means of targeting the Belt and Road Initiative (BRI) since many of them are contractors in various projects around the world.

Last month, in a dramatic change of positions, the US formally declared its opposition to the Chinese case in the disputed South China Sea. Recent American actions, some of them undoubtedly linked to politics related to its upcoming elections, have led to a stiffening of the regional response to China. Last week the Philippines lodged a diplomatic protest in Beijing over the Chinese coast guard confiscating Filipino fishing gear from the Scarborough Shoal, in the South China Sea. The Department of Foreign Affairs in Manila said in a statement, that Manila also objected to the radio challenges that were made to Philippine aircraft who patrol the disputed waters.

In response, the Chinese official spokesman said that its coastguard was merely enforcing the law in its waters. “The Philippines infringes on China’s sovereignty and security by sending military aircraft into air space adjacent to Nansha (Spratly) islands and reefs garrisoned by China.” He called on Manila to “immediately stop illegal provocations.”

This in turn provoked the Philippines Defence Minister Delfin Lorenzana to say that the area was within Philippines’ Exclusive Economic Zone (EEZ) and that “their (China’s) so-called historic rights over an area enclosed by their ‘Nine-Dash Line’ doesn’t exist except in their imaginations.” All the provocations were, he said, coming from the Chinese side.

In a similar way, in July, Malaysia frontally took on Chinese claims. In a note verbale of 29 July 2020 to the UN, Kuala Lumpur rejected “China’s claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas encompassed by the relevant part of the ‘Nine-Dash Line.’” It bluntly declared that Beijing’s maritime claims in the South China Sea “has no basis under international law.”

In the past year, besides the Chinese trying to coerce drilling operations of Malaysian oil and gas giant Petronas, Malaysia and China have also clashed on the issue of the continental shelf. In December 2019, Malaysia had submitted its application for the extension of its continental shelf beyond 200 nautical miles, as per the United Nations Convention on the Law of the Sea (UNCLOS). Earlier in 2009, it had made a joint submission with Vietnam. China objected at that time and then once again on 12 December 2019, the day Malaysia made its submission. In its note verbale, China claimed sovereignty over all of the South China Sea islands. The Malaysian submission, it noted “has seriously infringed China’s sovereignty.” China had historic rights over the entire area, EEZ as well as the continental shelf and so the Malaysian submission ought not be considered.

The Chinese had seized the strategic Scarborough Shoals in 2012 and the Philippines had taken the case to an arbitral tribunal under UNCLOS. In 2016, China lost the arbitration when the tribunal ruled that the Scarborough Shoal was clearly within the Philippines’ Exclusive Economic Zone. It also ruled that all the so-called reefs, outcroppings and low tide elevations in the South China Sea called the Spratly Islands, were not true islands under the definition of UNCLOS and thus no EEZ could be claimed to the waters around them.

More importantly, it ruled that China had not exercised exclusive control over the waters and resources of the South China Sea and had no legal basis to claim historic rights over the area through its unilaterally drawn ‘Nine-Dash Line.’ The Chinese have, however, defied the ruling and instead, after creating artificial islands, set up military facilities including surface to air missiles on them. They have insisted that they have the sovereignty over all the islands of the South China Sea.

This has been contested by the various states in question — Philippines, Vietnam, Malaysia, Brunei and Indonesia who in many cases have crossclaims over the so-called islands. According to a former US diplomat Chas Freeman, the “islands” have a complicated history and currently, of the 44 features in the Spartlys which are occupied or garrisoned, 25 are by Vietnam, eight by Philippines, seven by China, three by Malaysia and one by Taiwan.

Last month, in a dramatic move, the US formally rejected almost all of Beijing’s South China Sea claims. Where earlier it had adopted a neutral stand on the disputes, now, in a press statement, US Secretary of State Mike Pompeo declared that Beijing’s claims to the offshore resources over most of South China Sea “are completely unlawful, as is its campaign of bullying to control them.” He said that China had offered “no coherent legal basis for its ‘Nine-Dashed Line’ claim in the South China Sea since announcing it in 2009. He referred to the UNCLOS Arbitral Tribunal’s ruling and said that the US was “aligning its position on the PRC’s maritime claims in the SCS with the Tribunal’s decision.”

In recent months the US has deployed considerable force in the South China Sea including multiple aircraft carriers. The US is trying to signal regional nations that they are determined to protect their interests. Doubts about the US firmness has led regional states to play down Chinese actions. The Philippines, for example, has never pressed China to implement the Arbitral Tribunal verdict. Instead President Rodrigo Duterte has visited China several times and received billions of dollars of Chinese aid and investment.

On the other hand, in June, prevailing tensions persuaded Duterte to suspend moves to terminate the Visiting Forces Agreement (VFA) that Manila had signed with Washington DC in 1998. This agreement facilitates a number of important military exercises the two sides carry out. Both the Philippines and the US are still bound by the Military Defence Treaty (MDT) of 1951 which has been modified by the VFA and the Enhanced Defence Cooperation Agreement. In 2019, US Secretary of State Mike Pompeo affirmed US commitments to defend the Philippines against China as per the MDT.

Even so, there is a certain ambivalence in the attitude of regional countries like Philippines as is evidenced by the spat Manila got into with China when, on the anniversary of the Arbitral Tribunal ruling on 12 July, the Philippines Foreign Minister Teodoro Locsin reiterated his country’s support for the award and its enforcement “without any possibility of compromise or change.” The next week, however, following a teleconference between Locsin and his Chinese counterpart Wang Yi, the two sides agreed to “continue to manage issues of concern and promote maritime cooperation in friendly consultation.” Wang said that while China and regional states maintained stable ties, it was the US which was bent on disrupting them because of its geopolitical needs.

Meanwhile, China has stepped up its diplomacy in the region and called in diplomats from the 10 ASEAN nations for discussions on the rising tensions in the South China Sea. In the meeting earlier this month, the Chinese expressed concerns over the activities of “non-regional countries” (read the US) and called for a resumption of the negotiations over the Code of Conduct (CoC) which were being derailed by those “non-regional countries.”

The ASEAN and China have been discussing the CoC for more than two decades, but have got nowhere because Beijing characteristically does not want to be tied down. The two sides had accepted a non-binding Declaration on the Conduct (DoC) of Parties in the South China Sea in 2002, which was formalised in 2011. The two sides now have a single draft negotiating text for the CoC and have called for its completion by next year. Now, with the US stepping up its pressure, Beijing is reconsidering its tactics.

Significantly, Chinese pressure has ensured that the ASEAN has not formally invoked the Arbitral Award and skirts around it in its discussions on the CoC which, in any case will not resolve the dispute, but is aimed only at ensuring that it does not get out of hand. It’s not clear what kind of an enforcement mechanism it can have, or whether it will have one at all, and whether Beijing, which has a tendency to frequently shift goalposts, will abide by it.

Observers have noticed that while ASEAN, or even its individual members, do not directly refer to the Arbitral award with China, they have adopted the strategy of using notes verbale to the Secretary General with a request to circulate them to member states. These specifically mention UNCLOS and the Arbitral Court ruling. The intention is clearly, to signal that whatever realpolitik stand countries may take, they are not backing off from their legal claims.

The new US position has been a shot in the arm for the ASEAN, but they are acutely aware of Beijing’s clout. Countries such as Indonesia and Singapore are emphasising that ASEAN ought to walk on the middle path. Meanwhile, prominent analysts like Bilahari Kausikan of Singapore say that the ASEAN need not view the issue as a binary choice between the US and China, but one that required the management of “fluid and variable configurations of interests.”

The views expressed above belong to the author(s).