US report on the South China Sea provides early indications of a change in its approach

A new report of the US State Department on the Beijing’s extensive territorial claims of “historic rights” in the South China Sea (SCS) has rejected them as being “plainly inconsistent with international law”. Crucially. the report concludes that these claims gravely undermine the rule of law in the oceans and numerous universally recognised provisions of international law reflected in the convention.  The Ruling of 2016 was a serious blow to the Chinese claims.  It was based on the UNCLOS which China had ratified. Five dimensions of the Ruling are important. First, the Ruling dismissed Beijing’s claims on the entire area in the nine-dashed-line in the SCS. The Ruling stated that UNCLOS “comprehensively” governs the parties’ respective rights to maritime areas in the SCS and that the China’s nine-dashed-line claim of “historic rights” to the waters of the SCS is invalid.  Second, it clarified the definition of the “islands”. It found that none of the Spratlys- including Itu Aba, Thitu, Spratly Islands, Northeast Cay, and Southwest Cay- are legally islands because they cannot sustain a stable community or independent economic life. As such, they are entitled only to 12-nautical mile (22-km) territorial seas under UNCLOS, to which China and the Philippines are signatories. The Court also agreed with the Philippines that Johnson Reef, Cuarteron Reef, and Fiery Cross Reef are rocks. Hughes Reef and Mischief Reef were found to be below water at high-tide, generating no maritime entitlements. The Court also ruled that Second Thomas Shoal and Reed Bank are submerged and belong to the Philippines’ continental shelf thereby denying any right to China there. Third, significantly the Court also ruled against the Chinese ‘land-reclamation activity’ stating that this had caused ‘severe harm to the coral reef environment’. This imposed a stricture on China over its land reclamation activity. Fourth, the Tribunal confirmed that China violated Philippines’ rights in seizing Scarborough Shoal, the 2012 incident that drove Manila to file a suit. Fifth, it pointed out that China had breached the Philippines’ sovereign rights by exploring for oil and gas near the Reed Bank.   The Chinese response was on the earlier lines. The Chinese spokesperson Wang Wenbin responded by saying that the report “distorts international law, misleads the public, sows discord and disrupts the regional situation”. He also pointed out that the US considers itself a judge of the convention which US had not ratified while China has ratified it. He further said to allay the fears of other claimants that Beijing would work with ASEAN countries towards “peace and stability in the South China Sea and promote regional prosperity and development”. The ground realities are far from this statement. The discussions with ASEAN are not progressing and the Single Draft for negotiations only contains irreconcilable issues. Any progress in the near future given the attitude of the China appears unlikely.      China soon after the Ruling in 2016 had rejected it on the following three grounds. First, China termed it as ‘null and void’ and stressed that there was no binding force to impose the verdict upon China. Second, China challenged the jurisdiction of the Tribunal over the submissions made by the Philippines. Third, China blamed the Hon’ble Judges for impartiality by alleging that out of five Judges, four were under the influence of Japan. Such an unjustified criticism from a country that was signatory to UNCLOS was infelicitous.   While it may be early to conclude that the US is subtly shifting its approach, this report provides early indications of a subtle change. The US appears to be moving from countering militarily the Chinese coercive activities to the legal and diplomatic approach. The stress of the report was on legal aspects, supporting the international law. If this approach persists, it would encourage other claimants to stand up to China at international forums. Vietnam, Indonesia and Malaysia have approached the UNSC and the Philippines is also considering this. Their confidence in ASEAN-China dialogue may be enhanced.   A settlement of this issue is utmost necessary for international trade. An estimated $5 trillion in global trade travels each year and which holds rich fishing stocks and significant undersea oil and gas deposits. China has created artificial islands and militarised them to assert its claims. It is displaying its military might to deter smaller nations. Military coercion is on the increase. The EEZs of smaller nations are frequently encroached. It is challenging the freedom of navigation and flight in international waters. It has illegally established ADIZ in East China Sea and reports suggests that it considering a similar move in the SCS. Its propaganda machinery is working overtime, using novel ways. The worrisome aspect of such a high-voltage propaganda is that the Chinese CCP may devel

US report on the South China Sea provides early indications of a change in its approach

A new report of the US State Department on the Beijing’s extensive territorial claims of “historic rights” in the South China Sea (SCS) has rejected them as being “plainly inconsistent with international law”. Crucially. the report concludes that these claims gravely undermine the rule of law in the oceans and numerous universally recognised provisions of international law reflected in the convention. 

The Ruling of 2016 was a serious blow to the Chinese claims.  It was based on the UNCLOS which China had ratified. Five dimensions of the Ruling are important. First, the Ruling dismissed Beijing’s claims on the entire area in the nine-dashed-line in the SCS. The Ruling stated that UNCLOS “comprehensively” governs the parties’ respective rights to maritime areas in the SCS and that the China’s nine-dashed-line claim of “historic rights” to the waters of the SCS is invalid.  Second, it clarified the definition of the “islands”. It found that none of the Spratlys- including Itu Aba, Thitu, Spratly Islands, Northeast Cay, and Southwest Cay- are legally islands because they cannot sustain a stable community or independent economic life. As such, they are entitled only to 12-nautical mile (22-km) territorial seas under UNCLOS, to which China and the Philippines are signatories. The Court also agreed with the Philippines that Johnson Reef, Cuarteron Reef, and Fiery Cross Reef are rocks. Hughes Reef and Mischief Reef were found to be below water at high-tide, generating no maritime entitlements. The Court also ruled that Second Thomas Shoal and Reed Bank are submerged and belong to the Philippines’ continental shelf thereby denying any right to China there. Third, significantly the Court also ruled against the Chinese ‘land-reclamation activity’ stating that this had caused ‘severe harm to the coral reef environment’. This imposed a stricture on China over its land reclamation activity. Fourth, the Tribunal confirmed that China violated Philippines’ rights in seizing Scarborough Shoal, the 2012 incident that drove Manila to file a suit. Fifth, it pointed out that China had breached the Philippines’ sovereign rights by exploring for oil and gas near the Reed Bank.  

The Chinese response was on the earlier lines. The Chinese spokesperson Wang Wenbin responded by saying that the report “distorts international law, misleads the public, sows discord and disrupts the regional situation”. He also pointed out that the US considers itself a judge of the convention which US had not ratified while China has ratified it. He further said to allay the fears of other claimants that Beijing would work with ASEAN countries towards “peace and stability in the South China Sea and promote regional prosperity and development”. The ground realities are far from this statement. The discussions with ASEAN are not progressing and the Single Draft for negotiations only contains irreconcilable issues. Any progress in the near future given the attitude of the China appears unlikely.     

China soon after the Ruling in 2016 had rejected it on the following three grounds. First, China termed it as ‘null and void’ and stressed that there was no binding force to impose the verdict upon China. Second, China challenged the jurisdiction of the Tribunal over the submissions made by the Philippines. Third, China blamed the Hon’ble Judges for impartiality by alleging that out of five Judges, four were under the influence of Japan. Such an unjustified criticism from a country that was signatory to UNCLOS was infelicitous.  

While it may be early to conclude that the US is subtly shifting its approach, this report provides early indications of a subtle change. The US appears to be moving from countering militarily the Chinese coercive activities to the legal and diplomatic approach. The stress of the report was on legal aspects, supporting the international law. If this approach persists, it would encourage other claimants to stand up to China at international forums. Vietnam, Indonesia and Malaysia have approached the UNSC and the Philippines is also considering this. Their confidence in ASEAN-China dialogue may be enhanced.  

A settlement of this issue is utmost necessary for international trade. An estimated $5 trillion in global trade travels each year and which holds rich fishing stocks and significant undersea oil and gas deposits. China has created artificial islands and militarised them to assert its claims. It is displaying its military might to deter smaller nations. Military coercion is on the increase. The EEZs of smaller nations are frequently encroached. It is challenging the freedom of navigation and flight in international waters. It has illegally established ADIZ in East China Sea and reports suggests that it considering a similar move in the SCS. Its propaganda machinery is working overtime, using novel ways. The worrisome aspect of such a high-voltage propaganda is that the Chinese CCP may develop a perception that its claims are being accepted in the absence of firm opposition to the Chinese claims by the International Community. China has been using its coercive diplomacy to keep the ASEAN divided. The need for strong diplomatic moves to counter the Chinese claims is needed and the current US report could be an important step in this direction. Other claimants hopefully would take the issue of implementation of the PCA Ruling firmly in international forums including in ASEAN dialogue               

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