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

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 US. 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.

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.
A version of this article appeared in the print edition of The Straits Times on August 14, 2015, with the headline 'US 'not neutral' in South China Sea? A rebuttal'. Print Edition | Subscribe