The issue of US 'neutrality' in South China Sea disputes

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.

A version of this article appeared in the print edition of The Straits Times on August 11, 2015, with the headline 'The issue of US 'neutrality' in South China Sea disputes'. Print Edition | Subscribe