US report outlines legal arguments against China's maritime claims
State Department says Beijing's territorial claims in South China Sea are 'inconsistent with international law'
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Nirmal Ghosh US Bureau Chief In Washington and Danson Cheong China CorrespondentIn Beijing, Nirmal Ghosh, Danson Cheong
A report by the US State Department detailing the case against Beijing's extensive territorial claims in the South China Sea has rejected them as being "plainly inconsistent with international law".
"These claims, especially considering their expansive geographic and substantive scope, gravely undermine the rule of law in the oceans and numerous universally recognised provisions of international law reflected in the Convention," the 47-page report concluded.
That Convention is the 1982 United Nations Convention on the Law of the Sea (Unclos).
The report released on Wednesday by the State Department's Office of Ocean and Polar Affairs was seen as the most detailed yet by Washington on the issue.
Not surprisingly, it drew an immediate riposte from China, with a Foreign Ministry spokesman saying the report "distorts international law, misleads the public, sows discord and disrupts the regional situation".
The spokesman, Mr Wang Wenbin, said the US "considers itself a judge of the Convention" even though it - unlike China - has not ratified Unclos.
Beijing would work with Asean countries towards "peace and stability in the South China Sea and promote regional prosperity and development", he said.
China's expansive claims in the South China Sea are disputed by several countries in South-east Asia, including Brunei, Malaysia, the Philippines and Vietnam, all of which, analysts said, would likely welcome the report.
Maritime security expert Collin Koh from the S. Rajaratnam School of International Studies in Singapore, said: "Asean countries will look at this report with great interest.
"The materials enshrined in the report will be very useful in helping to further strengthen the position of Asean parties in a negotiation with China."
The State Department report is the latest move in a gradual shift from the former Trump administration's often military-focused approach of confronting China in the South China Sea, to a more "political and legal" approach, he said.
What US State Dept report says
The study examines China's maritime claims in the South China Sea. It postulates that China's claims are inconsistent with international law as reflected in the 1982 United Nations Convention on the Law of the Sea. The study says that China asserts four categories of maritime claims in the South China Sea.
Below are excerpts from the 47-page research paper.
SOVEREIGNTY CLAIMS OVER MARITIME FEATURES
China claims "sovereignty" over more than 100 features in the South China Sea that are submerged below the sea surface at high tide and are beyond the lawful limits of any state's territorial sea.
Such claims are inconsistent with international law, under which such features are not subject to a lawful sovereignty claim or capable of generating maritime zones such as a territorial sea.
STRAIGHT BASELINES
China has either drawn, or asserts the right to draw, "straight baselines" that enclose the islands, waters and submerged features within vast areas of ocean space in the South China Sea.
None of the four "island groups" claimed by China in the South China Sea (Dongsha Qundao, Xisha Qundao, Zhongsha Qundao and Nansha Qundao) meets the geographic criteria for using straight baselines under the Convention.
Additionally, there is no separate body of customary international law that supports China's position that it may enclose entire island groups within straight baselines.
MARITIME ZONES
China asserts claims to internal waters, a territorial sea, an exclusive economic zone and a continental shelf that are based on treating each claimed South China Sea island group "as a whole".
This is not permitted by international law. The seaward extent of maritime zones must be measured from lawfully established baselines, which are normally the low-water line along the coast.
Within its claimed maritime zones, China also makes numerous jurisdictional claims that are inconsistent with international law.
HISTORIC RIGHTS
China asserts that it has "historic rights" in the South China Sea. This claim has no legal basis and is asserted by China without specificity as to the nature or geographic extent of the "historic rights" claimed.
International relations expert Shi Yinhong of Renmin University in Beijing also said the study would likely encourage South-east Asian countries that dispute Beijing's claims to stand up to China.
"With the US holding such a tough position, countries like Vietnam, Malaysia, Indonesia will feel a sense of reassurance," said Professor Shi.
Indonesia is not a claimant state in the South China Sea, but is in an ongoing dispute with China over control of waters around the Natuna islands.
In Washington, Dr Patrick Cronin, Asia-Pacific Security chair at the Hudson Institute, told The Straits Times the report explained clearly major ways in which China had "overreached on its maritime claims in the South China Sea in a manner Asean members should be able to agree".
"Perhaps the most important thing is the State Department's use of international law to buttress diplomacy," Dr Cronin said. "This study may be the important legal foundation for some muscular diplomacy."
The report noted that since 2014, China has continued to assert claims to a wide swathe of the South China Sea as well as to what it has termed "internal waters" and "outlying archipelagos" - all of which are "inconsistent with international law" as reflected in the Unclos.
"This includes any claim to sovereignty over entirely submerged features like James Shoal, Vanguard Bank and Macclesfield Bank," it said.
James Shoal is about 45 nautical miles off Sarawak. Vanguard Bank, also entirely submerged, is within Vietnam's exclusive economic zone and occupied by Hanoi. Macclesfield Bank is also claimed by Vietnam.
The report also rejected China's claims to sovereignty over features exposed at low-tide elevations, such as Mischief Reef and Second Thomas Shoal, which fall "entirely beyond a lawful territorial sea entitlement and which are not subject to appropriation under international law".
The report also rejected China's argument about a separate body of customary international law, outside of the Convention, that justified its straight baseline claims in the South China Sea.
