Dr. Lynn Kuok is Shangri-La Dialogue Senior Fellow for Asia-Pacific Security at the International Institute for Strategic Studies.
It's taken four years, but the U.S. has finally thrown its weight behind a UN tribunal's sweeping rejection of Beijing's maritime claims in the South China Sea. Long overdue, Washington's support for the resource rights of Southeast Asia's littoral states is nonetheless positive.
Despite the COVID-19 pandemic, China has intensified its relentless attempts to strengthen its claims to and control of the South China Sea. Among its transgressions, it has further encroached upon the exclusive economic zones, or EEZs, of Indonesia, Vietnam and Malaysia, in direct contravention of the tribunal's ruling. Outmatched militarily, and wanting to maintain good relations with Beijing, these states have resisted Chinese incursions but within limits.
The COVID-19 crisis is only increasing this imperative. Indonesia, Malaysia and the Philippines are working with China on their respective responses to the pandemic. Ties are set to deepen as countries seek to rebuild their economies. Still, one area of progress regarding the South China Sea has been the emergence since late last year of a clear sense that, apart from China, important players are operating under a common understanding of international law.
The Philippines and, within the last half a year, Vietnam, Indonesia and Malaysia, have made it clear through a series of diplomatic notes submitted to the United Nations that the UN tribunal ruling against China is an authoritative interpretation of the law and that China's asserted maritime rights to the South China Sea contravene the United Nations Convention on the Law of the Sea, or UNCLOS.
The U.S. too, submitted a note to the UN in early June rejecting China's maritime claims, though it remained silent on the question of whether China can validly claim an EEZ from small individual islands in the South China Sea.
That changed last month when U.S. Secretary of State Mike Pompeo made a high-profile statement "aligning" the U.S. position on China's maritime claims in the South China Sea with the UN tribunal's decision.
Declaring that neither the Spratly Islands, individually or as a group, nor Scarborough Shoal were entitled to an EEZ, Pompeo went on to condemn as unlawful China's actions harassing Philippine fisheries and offshore energy development within its EEZ, and any unilateral action on China's part to exploit these resources. Notably, Pompeo also declared any Chinese action to harass Southeast Asian states' fishing or hydrocarbon development or to carry out such activities itself within their EEZs as unlawful.
What this important clarification means for U.S. practice is unclear. Despite never previously endorsing the merits of the UN tribunal's decision, the U.S. had taken steps consistent with the ruling such as condemning China's interference with oil and gas activities, including Vietnam's long-standing exploration and production activities.
But Pompeo's explicit endorsement of the tribunal ruling is nonetheless positive for several reasons. First, it goes toward reassuring Southeast Asian countries that the U.S. cares about their economic rights, even if no one is under the illusion that such concerns arise from anything other than escalating U.S.-China rivalry.
Second, actions that are explicitly in line with the tribunal judgment enjoy greater legitimacy, and will likely boost support for bilateral and multilateral efforts to defend the rules-based order.
Third, recent U.S. statements help to counter China's false narratives. Accusations that "foreign powers are stirring up trouble in the South China Sea" ring hollow if those actions are clearly supported by international law. Further, while it is within a country's rights to construct and build facilities on its own territories, as China claims, sovereignty over land features in the South China Sea are hotly contested and in the case of low-tide or submerged features, jurisdiction and control lies with the coastal state -- a matter the UN tribunal ruled upon and which the U.S. has explicitly endorsed.
Finally, recent developments pave the way for stronger actions against China, which are likely to include sanctions. The day after Secretary Pompeo's statement, Assistant Secretary of State for the Bureau of East Asian and Pacific Affairs David Stilwell took aim at China's state-owned enterprises, highlighting China Communications Construction Co. (CCCC), which led the dredging for China's South China Sea military bases, and China National Offshore Oil Corp. (CNOOC), which encroached upon coastal states' exclusive economic rights through various survey activities.
When asked whether the U.S. was contemplating sanctions against officials or state-owned enterprises involved in coercion in the South China Sea, Stilwell responded that "nothing is off the table."
Though privately welcomed, Southeast Asia's response to recent U.S. statements has been relatively muted. Vietnam and Malaysia urged a peaceful resolution of disputes in accordance with principles of international law, including UNCLOS. The Philippines called on China to comply with the 2016 tribunal ruling.
A week after Secretary Pompeo's statement, Vietnam signed a memorandum of understanding with the U.S. to strengthen Vietnam's fisheries management and law enforcement capabilities. To date, the Philippines and Indonesia are the only Southeast Asian countries to invoke the tribunal ruling on resource rights.
Navigating the turbulent seas ahead will be difficult, but a principled approach supporting a rules-based order and international law will provide much-needed stability, which all states would do well to support. It should hardly be controversial to support the ruling of an international tribunal validly constituted under the United Nations Law of the Sea.