For the first time, the United States government has come out publicly with an explicit statement that the so-called “nine-dash line,” which the People’s Republic of China (PRC) and Taiwan assert delineates their claims in the South China Sea, is contrary to international law. Assistant Secretary of State for East Asian and Pacific Affairs Danny Russel, in testimony before the House Committee on Foreign Affairs on February 5, said, “Under international law, maritime claims in the South China Sea must be derived from land features. Any use of the ‘nine-dash line’ by China to claim maritime rights not based on claimed land features would be inconsistent with international law. The international community would welcome China to clarify or adjust its nine-dash line claim to bring it in accordance with the international law of the sea.”
The South China Sea encompasses several hundred small islands, reefs, and atolls, almost all uninhabited and uninhabitable, within a 1.4 million square mile area. The PRC inherited from the former Kuomintang government of China the nine-dash line, which draws a line around all of these islands, asserts sovereignty over all of them, and makes ambiguous claims about rights to waters within the line. Under the U.N. Convention on the Law of the Sea (UNCLOS), negotiated in the 1970s and 1980s, countries can claim exclusive rights to the fish and mineral resources within Exclusive Economic Zones, which can extend 200 nautical miles from a continental shore line or around islands that can support habitation. There is no provision in the convention granting rights to waters, such as in the South China Sea, without regard to land-based sovereign rights. So it has long been implicit in the U.S. interpretation of UNCLOS that claims to the mineral and fish resources of the South China Sea, unless they are linked to specific inhabitable islands, are invalid. Assistant Secretary Russel’s statement has made that position explicit.
U.S. attention to the South China Sea has increased visibly under the Obama administration. The first manifestation of that attention was a highly publicized statement by Secretary of State Clinton at an international gathering in Hanoi in 2010, in which she laid out principles governing U.S. policy in the South China Sea: respect for freedom of navigation, peaceful resolution of disputes, freedom of commerce, negotiation of a Code of Conduct for dispute resolution and, most relevant here, the view that claims to water could only be based on legitimate land-based claims. Clinton’s statement took a hitherto obscure, below the radar issue and made the South China Sea the subject of accelerated regional diplomacy, numerous analyses by commentators and national security specialists and in some cases sharpened rhetoric by the various claimants. It was welcomed by all of the Southeast Asian claimants (i.e., Vietnam, Philippines, Malaysia, Brunei), though resented by China.
Secretary Clinton made the statement in response to growing concern among China’s neighbors that China was advancing its claims through political and military means and in the absence of any diplomatic process to reduce tensions. In 1994-1995, there had been a similar period of heightened tensions when China built installations on Mischief Reef in the Spratly Islands, claimed by the Philippines. A deterioration in Chinese relations with Southeast Asian countries led the Chinese leadership, spearheaded by then State Councilor Qian Qichen, to negotiate a regional Declaration of Conduct and a pledge not to take actions that would change the status quo. Sporadic seizure of fishing vessels by one party or another continued, and countries, principally Vietnam, granted exploration rights to oil companies in disputed areas, but none of these episodes triggered war alarms.
In the last several years, however, there has been a growing concern in the region, and in the U.S., that China had turned its back on diplomacy and was using military and legal means to advance its claims to all of the South China Sea. Statements to U.S. diplomats characterizing the South China Sea as an issue of prime importance to China involving sovereignty and on which it would not accept interference raised the ante. In 2012, China expelled Filipino fishermen from traditional fishing grounds around Scarborough Shoal, less than 125 miles from the main Philippine islands, and has used its coast guard to maintain control. In 2012, it established an administrative and military district covering portions of the claimed Paracel Islands. In establishing an Air Defense Identification Zone over portions of the East China Sea in late 2013, Chinese spokesmen indicated an intention at some point to establish a similar zone in the South China Sea, which inevitably would cover at least some areas claimed by others.
The South China Sea is a complicated issue for the United States. We have no territorial claims there. We do not take sides on the respective sovereign claims of the parties, nor should we. It is highly unlikely that any country can establish effective means of projecting power from South China Sea islands that would threaten U.S. ships, military or otherwise, in the region. While there are believed to be considerable unexploited reserves of oil and gas within the South China Sea waters, they are not commercially viable for production on a large scale and are not expected to be for some time.
But the U.S. does have important interests in the South China Sea. They are:
- To ensure freedom of navigation, not as a favor from any country but as an international right in an area through which 50 percent of the world’s oil tankers pass, that is a major thoroughfare of international commerce, and where U.S. military vessels deploy and operate consistent with international law.
- To prevent use of force or coercion to resolve claims either to territory or to maritime rights.
- To advocate for respect for international norms and law for resolving all such issues.
- To ensure that all countries, including the U.S., have the right to exploit the mineral and fish resources outside of legitimate Exclusive Economic Zones.
- To prevent a U.S. ally, the Philippines, from being bullied or subject to use of force.
- To ensure that the rights of all countries, not merely large ones, are respected.
There are tensions between differing elements of U.S. interests. The U.S. does not wish to see China gain control over the area through coercion. But at the same time the U.S. does not have an interest in making the South China Sea a venue of confrontation or conflict between the U.S. and China. Frontal challenges to Chinese claims, if not founded on international norms and consistent with U.S. principles, run the risk of inciting heightened Chinese nationalism and paranoia over U.S. intentions and producing more aggressive Chinese behavior in the region that would victimize the other claimants without an effective U.S. response. On the other hand, a passive U.S. posture would undercut the interests outlined above and would persuade the other claimants that the U.S. was abandoning both them and our principles, thereby making a mockery of the Obama administration’s “rebalancing” toward Asia and badly damaging regional receptivity to U.S. presence and influence.
By explicitly rejecting the nine-dash line, Assistant Secretary Russel and the administration have drawn our own line in the right place. They have made clear that our objection is a principled one, based on international law, not a mere rejection of a claim simply because it is China’s. So long as our approach to the South China Sea remains firmly grounded on principle and international law, the U.S. can accomplish our objectives, strengthen the position of other claimants with respect to their rights and avoid the appearance of seeking confrontation with China over a sovereignty issue.
What else can and should the U.S. do? Several things:
- The U.S. should ensure that its approach is not seen as unilateral. It is not, but sometimes other countries are publicly quiet but privately supportive. The U.S. government should make clear to the other claimants, and to other ASEAN countries like Singapore and Thailand, that we expect them to be public in their rejection of the nine-dash line under international law.
- The U.S. should discuss with Taiwan whether it can clarify its position on the nine-dash line, to make clear that its claims are consistent with UNCLOS.
- The U.S. should continue to make a high priority negotiation of a Code of Conduct between China and the ASEAN states, as we have done since Secretary Clinton announced that objective in Hanoi. Indeed, the decision by China and ASEAN to begin talks on a Code of Conduct was one of the beneficial outcomes of Secretary Clinton’s statement.
- The U.S. should urge the Chinese not to establish any new Air Defense Identification Zone in the South China Sea. While a public position on this is necessary, private diplomacy is likely to be more effective in influencing Beijing.
- The U.S. should discuss with all the claimants possible agreement on exploitation of mineral and fish resources without regard to sovereignty, including the use of joint ventures between companies.
- The Senate should ratify the U.N. Convention on the Law of the Sea. That would give the U.S. legal and moral standing to participate more actively and effectively in decisions on the future of the South China Sea. All former U.S. Secretaries of State support such a decision. So does the U.S. Navy and former Chiefs of Naval Operations and Pacific Commanders. So does the overwhelming majority of concerned U.S. companies. We should put our money where our mouth is.
On April 11, Jamie Horsley spoke on a panel about China’s Belt and Road Initiative and Asian development during a session of the American Bar Association’s Section of International Law 2019 Annual Conference, held in Washington, D.C.