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July 16, 2020

US/CHINA: New US position on South China Sea raises risk of naval confrontation

BY Gabriel Wildau

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  • A US statement on the South China Sea shifts Washington’s position to align fully with a 2016 ruling by a Hague tribunal under the UN Convention on the Law of the Sea (UNCLOS).
  • The new US position maintains Washington’s neutrality on most disputed territorial claims but rejects Beijing’s maritime claims over coastal waters near the Philippines, Vietnam, Indonesia, Malaysia, and Brunei.
  • Outright military conflict remains highly unlikely, but the US may increase naval patrols in the region, raising the risk of a misunderstanding or accidental naval incident.

The US State Department issued a statement on 13 July revising the US’ position on disputed territorial and maritime claims in the South China Sea. The statement aligns the official US stance with a 2016 ruling by an arbitral tribunal in the Hague in a case brought by the Philippines against China. That ruling rejected China’s “nine-dash line,” which asserts broad claims over most of the South China Sea.

Contrary to some reporting, the US statement stops short of rejecting all or even most Chinese territorial claims in the South China Sea. Rather, the statement largely maintains the pre-existing US position of neutrality on territorial claims. On maritime claims, however, the US statement marks a more decisive shift. The statement supports the tribunal’s rejection of Chinese maritime claims derived from claims to nearby territorial features (islands, shoals, formations) in the Spratly Islands and Scarborough Shoal. The Philippines, Vietnam, Indonesia, Malaysia, and Brunei hold exclusive rights over resources within their exclusive economic zones (EEZs), including fishing and oil, according to the US, which means China cannot lawfully interfere with resource use in these EEZs. The Philippines, Vietnam, and Indonesia all expressed support for the new US position, while Singapore and Malaysia have not commented publicly.

The US position on the tribunal ruling is somewhat awkward because the Hague tribunal was established pursuant to UNCLOS, which the US has declined to join. Still, the revised US position lays the groundwork for more frequent and assertive US freedom of navigation operations in the region. The US has conducted four freedom of navigation operations in 2020 alone, compared to only six such operations during the entire Obama administration. In early July, two US aircraft carrier groups conducted joint exercises in the South China Sea for the first time.

Beyond the South China Sea, the State Department’s move seems to be part of an accelerated push across the US government in recent weeks, led by Secretary of State Mike Pompeo, to confront China on issues including Xinjiang, Hong Kong, US-listed Chinese companies, and alleged threats from Chinese apps like TikTok.

On territorial claims, the US statement does reject Chinese claims on three specific maritime features – Mischief Reef, Second Thomas Shoal, and James Shoal. The arbitral tribunal ruled that these are low-tide elevations located within the Philippines’ EEZ. In general, a country’s EEZ grants that country exclusive rights to all activity below the surface of the sea – such as energy exploration and fishing – while surface waters in an EEZ are considered international waters. Insofar as the tribunal classified these three features as low-tide elevations, rather than islands, their location within the Philippines’ EEZ means that Manila holds full rights to them.

US Assistant Secretary of State for East Asia David Stilwell said that the revised US position means that “we are no longer going to say we are neutral” on maritime claims. The result is that if, for example, a Chinese drilling vessel enters Vietnamese or Malaysian waters, “we’re going to be able to make a positive statement.” Nevertheless, the US remains unlikely to deploy use military force to roll back Chinese land reclamation and construction on disputed territorial features.

China responded that the US statement “deliberately distorts the facts and international law” but did not threaten specific retaliation. China may respond to more assertive US operations with more confrontational naval actions of its own. Outright military conflict remains highly unlikely, but the risk of a misunderstanding or accidental naval incident has increased.

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