New U.S. harder line doesn’t demand a military solution in the South China Sea

The United States last week issued a statement dismissing China’s claims to resources in the South China Sea and condemning Beijing’s “bullying” to enforce them. Washington’s policy is not new, but it more clearly aligns U.S. policy with international law and offers renewed support for countries that China is challenging with its expansive territorial claims.

It is another front in the campaign that the Trump administration is waging against China, a reminder to Beijing that the U.S. is not distracted by the COVID-19 pandemic and is not to be counted out of regional security affairs.

Words alone will not move Beijing, however. The U.S. must back tough talk with action. Rhetorical support for international law is mere posturing if Washington won’t actively assist the countries that China is bulldozing. That raises the real risk of a clash, accidental or intended, in a vital waterway.

Six countries have territorial disputes in the South China Sea: Brunei, China, Indonesia, Malaysia, the Philippines and Vietnam. While it is latest to the contest and has been playing catch-up, Beijing has the most expansive claims. In 2016, the U.S. Department of Defense estimated that China had built 1,295 hectares of reclaimed land atop reefs and atolls in the sea, dotting them with defense facilities and equipment, despite a pledge by Chinese President Xi Jinping to not militarize them.

Beijing’s case for jurisdiction rests on a “nine-dash line” that includes about 80 percent of the South China Sea and inside of which “China has indisputable sovereignty” over islands and adjacent waters, and “enjoys sovereign rights and jurisdiction over relevant waters as well as the seabed and subsoil thereof.”

That claim is legally ambiguous. It isn’t clear whether China is claiming all land features within the line and their adjacent waters, or whether the line is a boundary of national sovereignty over all the enclosed waters, or if it represents some set of historic rights to the maritime space within the line. Whatever the intent, China is aggressively enforcing it.

Local Chinese governments have extended their jurisdiction to the new islands and China’s Coast Guard has chased and sunk foreign fishing vessels in waters that Beijing considers its own. China has pressured companies doing survey work or attempting to operate in those waters if they are doing so pursuant to rival claimants’ legal authority. In other words, no surveys are conducted or resources removed without Beijing’s permission.

Unfortunately for Beijing, those claims aren’t recognized by international law. The U.S. policy was released to mark the fourth anniversary of a 2016 decision by a United Nations tribunal in a case between the Philippines and China over Beijing’s claims to territory under the terms of the U.N. Conference on the Law of the Sea (UNCLOS), to which both countries are signatories. China lost in a cut-and-dried decision.

First, the tribunal dismissed the nine-dash line, arguing that its historical provenance was irrelevant. Instead, the court concluded, the terms of UNCLOS are all that matter in such cases. Second, the court determined that legal rights are determined by geology. Specifically, legal claims can only be created by features that can support human habitation or independent economic activity. In other words, a government can’t dredge a lagoon or build an island around a rock, call it an island and claim exclusive legal rights to the air, water or resources in the area. At most, a rock — and only one that stays above water at high tide — generates 12 nautical mile territorial seas.

In the China-Philippines case, the court concluded that China’s claims were based on features that did not even do that — they were technically underwater rocks — and therefore did not create claims to sovereignty. It was a complete victory for the Philippines.

China dismissed the ruling, and the Philippine government, now headed by President Rodrigo Duterte, has not pushed Beijing to respect its victory. Duterte has instead promoted relations with China, which has meant working with Beijing rather than asserting Manila’s claims.

The U.S. backed the tribunal ruling since it was issued. Immediately after it was announced, the State Department said that it was “final and legally binding on both China and the Philippines.” A few weeks later, then Secretary of State John Kerry repeated that conclusion and called for all countries to adhere to its guidance. Since then, the U.S. has been quick to criticize Chinese muscle flexing but its language has been measured.

No longer. The State Department statement, issued by Secretary of State Mike Pompeo, calls China’s claims “completely unlawful,” and its assertion of those claims a “bullying campaign.” He warned that Beijing is attempting to deprive Southeast Asian nations of their offshore resources and “replace international law with ‘might makes right.’”

David Stilwell, assistant U.S. secretary of State for East Asia and the Pacific, was blunter still. In a speech the next day, he charged that China seeks to “replace international law with rule by threats and coercion,” “wants to dominate its immediate neighborhood — and eventually impose its will and its rules on your neighborhood, wherever you may be,” and is using “gangster tactics” to do so.

Washington’s harder line reflects a desire to retake the initiative in dealing with Beijing when the U.S. is thought to be distracted and China more forward-leaning. Central to U.S. efforts is rallying allies and partners, and as Greg Poling, director of the Asia Maritime Transparency Initiative at CSIS, a Washington-based think tank, explained, “It is much easier to rally international support against ‘illegal’ activity than against actions that are merely distasteful or destabilizing.” That charge also undercuts China’s bid for global leadership, which is more difficult to take seriously at the same time it is “accused of gross violations of international law.”

Unfortunately, the U.S. position is weakened because it isn’t an UNCLOS signatory, and while U.S. policy honors the agreement, Washington’s refusal to join makes its protests ring somewhat hollow.

Japan, heavily dependent on the trade that traverses the South China Sea and nervous about Chinese claims elsewhere, has backed the U.S. Foreign Minister Toshimitsu Motegi applauded “the commitment of the United States…. This announcement … shows its unwavering commitment to regional peace and stability.” That is no abstract concern: The new Defense White Paper, approved by the Cabinet last week, highlights Chinese attempts “to alter the status quo in the East China Sea and the South China Sea,” pointing to “relentless” intrusions in the waters around the Senkakus, islets also claimed by China.

Thus far, the U.S. has made its point with freedom of navigation operations through disputed waters, insisting on its navigational rights. The continuing expansion of Chinese claims makes clear that that is not enough. The U.S. must provide effective backing for rival claimants — not just military support but diplomatic and economic as well.

According to its statement last week, the U.S. “stands with our Southeast Asian allies and partners in protecting their sovereign rights to offshore resources …” In a news conference, Pompeo offered them “the assistance we can, whether that’s in multilateral bodies, whether that’s in ASEAN, whether that’s through legal responses, we will use all the tools we can.”

Making that pledge real is the key. Anything less will expose the U.S. as a paper tiger that lacks credibility, encourage Chinese adventurism and harden skepticism about U.S. readiness to honor its security commitments. The U.S. must use all the tools at its disposal.

Southeast Asian governments — as the Philippines make clear — have no stomach for a direct military challenge to China. They prefer multidimensional responses with benefits for all parties. That echoes China’s own rhetoric, so the best U.S. policy is figuring out ways to strengthen the region’s hand in the ongoing negotiations on a Code of Conduct for the South China Sea. Beijing will object so the U.S. and its partners must ensure that they too speak the language of win-win solutions. The alternative is a steady and inexorable march toward conflict.

Brad Glosserman is deputy director of and visiting professor at the Center for Rule Making Strategies at Tama University as well as senior adviser (nonresident) at Pacific Forum. He is the author of "Peak Japan: The End of Great Ambitions."