What Options are On the Table in the South China Sea? - War on the Rocks

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U.S. policy in the South China Sea hasn’t dented Chinese coercion against its neighbors, so the Trump administration is upping the ante. Last Monday, U.S. Secretary of State Mike Pompeo decried China’s “campaign of bullying” in the South China Sea and pledged that the United States would “not allow Beijing to treat the South China Sea as its maritime empire.” The next day, Assistant Secretary of State David Stilwell asserted that the United States is “no longer going to say we are neutral on these maritime issues” and warned “nothing is off the table.” The spokeswoman for China’s Foreign Ministry, Hua Chunying, called the comments “very pathetic” and cautioned, “If the US wants to make a storm, then just let the storm rage with greater force.” Matching its words with deeds, China then sent military aircraft to Woody Island, including at least eight fighter jets, four of which were anti-ship fighter-bombers. Meanwhile, two U.S. aircraft carriers and their strike groups were sailing in the South China Sea. Is the change in Trump administration’s South China Sea policy significant? What additional measures might be on the table as a result?

Small Clarifications, Big Implications

On July 13, the State Department clarified that “the United States rejects any PRC claim to waters beyond a 12-nautical mile territorial sea derived from islands it claims in the Spratly Islands.” This more closely  aligns U.S. policy with a July 2016 decision by an arbitral tribunal that there was “no legal basis for China to claim historic rights to resources within the sea areas falling within the ‘nine-dash line’.” Specifically, U.S. policy now matches the tribunal’s finding that “none of the Spratly Islands is capable of generating extended maritime zones” and that “the Spratly Islands cannot generate maritime zones collectively as a unit.” As a result, China has no legal basis to claim most of the South China Sea, nor to challenge fishing or oil and gas exploitation by other claimants within their rightful exclusive economic zones.

In response, Beijing advised Washington against “taking sides on the issue of territorial sovereignty.” But the Trump administration has done nothing of the sort. It is critical to understand the difference between the territorial and the maritime disputes in the South China Sea. The administration wisely left Washington’s neutrality on sovereignty over rocks, reefs, and islets in place. Instead, the administration focused on the illegitimacy of China’s claims to both the water extending beyond 12 nautical miles from land features and to other features that are submerged, and therefore are not entitled to a territorial sea or exclusive economic zone.

Washington is not taking sides in the long-standing territorial disputes. Rather, it is explicitly declaring that China’s harassment of other states’ fishing and hydrocarbon development is illegal. This move is long overdue. Arcane debates over international law and the fact that the United States is not a party to the Convention on the Law of the Sea delayed unqualified and explicit backing of the 2016 ruling. Doing so now clears the path for U.S. policies to support allies and partners in their efforts to rebuff Beijing’s coercive maritime practices.

Although some observers will frame the administration’s policy shift as a politically motivated step to bolster President Donald Trump’s claims to be tough on China, it is mainly focused on supporting regional states. In announcing the change, Pompeo asserted, “America stands with our Southeast Asian allies and partners in protecting their sovereign rights to offshore resources.” A year earlier, the State Department called out “China’s repeated provocative actions aimed at the offshore oil and gas development,” but did not say they were illegal and took no position on the respective maritime claims. Now, Stilwell has declared that the United States is “no longer going to say we are neutral on these maritime issues.”

Previously the Trump administration opposed Chinese coercion but refrained from backing the legality of other countries’ exclusive rights to resources in waters that are rightfully theirs under the Law of the Sea. Now the administration can take further steps in the waters surrounding Vanguard Bank (off Vietnam), Luconia Shoals (off Malaysia), Natuna Besar (off Indonesia), and Brunei’s exclusive economic zone. Furthermore, this clarification means that China “has no lawful territorial or maritime claim to Mischief Reef or Second Thomas Shoal,” which are part of the Philippine exclusive economic zone and continental shelf. American policy already suggested this was the case, but these clear statements in support of U.S. allies and partners, and the application of international law, will be welcomed in Southeast Asia.

Although these changes were somewhat technical, they have significant implications. By making this position explicit, U.S. leaders can stand firmly behind the Philippines, Vietnam, Malaysia, Brunei, and even Indonesia. Stilwell downplayed the shift, calling it “housekeeping… we are simply making words and deeds match.” Yet, the administration should get credit for this smart and carefully crafted move. Indeed, leading Republicans and Democrats in both the House and Senate have already heralded the decision. The policy shift has already been applauded by leaders in the Philippines, who were no doubt heartened by Stilwell’s warning that “any move to occupy Scarborough Shoal would be a dangerous move.”

If “Nothing Is Off the Table,” What Might Come Next?

With its new policy position, the United States will come under pressure to demonstrate that it is willing to punish actions by China that it deems illegal. Asked about the potential for U.S. sanctions on Chinese entities, Stilwell insisted “nothing is off the table.” Among the measures Washington might consider are economic sanctions, more military patrols, direct support, capacity building, and tougher multi-lateral diplomacy.

Economic Sanctions

The United States could sanction Chinese companies operating illegally in other countries’ exclusive economic zones. The most obvious targets for sanctions would be Chinese state-run companies that own vessels that illegally conduct fishing, surveys, or oil and gas exploration in the exclusive economic zones of China’s neighbors. Sanctions could also target Chinese marine scientific research vessels or individuals associated with the China coast guard or maritime militia that repeatedly operate within other claimants’ exclusive economic zones without permission.

Increased Patrols

Washington could also conduct patrols to challenge or expel fishing boats or oil and gas exploration vessels operating without permission in other states’ exclusive economic zones. To embolden claimants to defend their rights, which U.S. officials have stated is one of their objectives, the United States could provide video surveillance to highlight China’s coercive behavior and intelligence to help regional claimants respond more effectively.

Direct Support

American leaders might also consider providing more direct support to ally and partner forces. The United States has provided overwatch for previous resupply efforts by the Philippines at Second Thomas Shoal. Now the United States might also use its own vessels for these purposes, raising the bar for a Chinese escalation. U.S. leaders set a precedent for this action in May when they deployed the USS Gabrielle Giffords near the West Capella drillship, operated by Malaysia’s state-run oil company, to signal concern about harassment by a Chinese state-owned research vessel, armed Chinese coast guard ships, and China maritime militia vessels.

Capacity Building

American leaders might also look to help regional allies and partners build their own capabilities to resist coercion. Key leaders in the U.S. Congress are already pushing to devote more resources to deterrence and reassurance efforts with friends in the Indo-Pacific. Working with Japan, Australia, and other countries, the United States could seek to further enhance the ability of states in the region to defend their own maritime rights and resist Chinese coercion. American leaders might also explore ways to help regional states impose penalties on China for causing severe harm to the coral reef environment and violating its obligation under the U.N. Convention on the Law of the Sea to preserve and protect fragile ecosystems and the habitats of endangered species.

Collective Statements

Finally, U.S. leaders could seek to issue joint statements with allies and like-minded partners in support of the legal rights of the South China Sea’s other claimants. The G7 (or the expanded D10) provides a potential platform for more forceful statements in support of enforcing the arbitral tribunal’s ruling. In addition, U.S. leaders might urge Taiwan to make public its extensive historical archives on the origins of the eleven-dash line, the precursor to the nine-dash line which was established by the Republic of China, and ask Taiwan to issue a revised claim that is consistent with international law. These efforts are unlikely to reverse Chinese behavior, but Beijing has often been sensitive to regional pressure and as Stilwell noted, “words are powerful.”

A Smart Move

All these possible actions carry increased risk. But the United States cannot prevent China from dominating the South China Sea and undermining the application of rules and norms in Asia’s maritime littorals without accepting more risk. By carefully manipulating risk, the United States may also embolden other countries to hazard Chinese displeasure by criticizing destabilizing policies more sharply and challenging coercive behavior more directly.

Many experts, to include both of us, have at times been critical of the Trump administration’s heavy-handed approach to China. But this was a smart move. It seems to have been carefully calibrated to reinforce international law and to align U.S. policy more closely with the interests of America’s allies and partners in Southeast Asia. And it focuses on the rights of regional states — namely the Philippines, Vietnam, Malaysia, Brunei, and Indonesia — to the oil, gas, and fish within their rightful exclusive economic zones. By doing so, U.S. policy has wisely moved beyond simply protecting freedom of navigation to defending freedom of the seas and the maritime rights of all nations in the South China Sea.

Zack Cooper is a research fellow at the American Enterprise Institute and co-host of the Net Assessment podcast at War on the Rocks.

Bonnie S. Glaser is senior adviser for Asia and director of the China Power Project at the Center for Strategic and International Studies.

Image: U.S. Navy (Photo by Mass Communication Spc. 3rd Class Olivia Banmally Nichols)

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July 22, 2020 at 02:56PM
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What Options are On the Table in the South China Sea? - War on the Rocks

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