Washington’s Welcome South China Sea Policy Review

For much of the Trump administration, U.S. policy toward the South China Sea hadn’t changed much since the Obama years. True, the administration did take steps to increase the frequency of the U.S. Navy’s legal signaling by means of freedom of navigation operations, but the broad policy contours remained predicated on what the Obama administration had initially outlined in 2010 and 2011. The Obama administration had identified “freedom of navigation” as a core U.S. interest in the waters, where China and five other countries have competing claims.

In this context, the July 2020 announcement by U.S. Secretary of State Mike Pompeo that the United States would more closely align its own understanding of the South China Sea with that of the July 12, 2016 award of the Hague-based arbitral tribunal in Philippines v. China is a significant development. On July 13, the U.S. Department of State unveiled an important set of clarifications concerning U.S. policy for these disputed waters. In broad terms, U.S. policy didn’t change, but it did become more specific about what exactly Washington seeks in the South China Sea.

“We are strengthening U.S. policy on South China Sea maritime claims, according to international law, in rejection of Beijing’s intimidation, bullying, and claims of maritime empire,” Pompeo declared on Twitter after the announcement was made public.

Three core issues define the change. First, the United States was taking a stand that Chinese activity to inhibit the ability of other South China Sea littoral states to access marine resources, including hydrocarbons and fisheries, could not be tolerated any longer. Second, in line with the 2016 ruling, the United States now would specifically treat as illegal any Chinese maritime claims from the Spratly Islands that implied the existence of an exclusive economic zone (EEZ) around those features. Third, the United States more broadly rejected Chinese maritime claims in waters disputed elsewhere, including the Natuna Sea (with Indonesia), Luconia Shoals (off Malaysia), and Vanguard Bank (off Vietnam).

What the update did not do was cross the important rubicon of taking a position on the sovereignty of features. This distinction was blurred in much of the coverage of the U.S. policy change, but it is deeply important. The United States continues to take no particular position on which claimant state owns a specific feature (with two important exceptions I’ll highlight below), but it does take a position on maritime claims made from those features. For instance, as per the 2016 tribunal’s findings, the U.S. now concurs that none of the features in the Spratly Islands are capable of generating legitimate maritime entitlements beyond 12 nautical miles. This includes the waters around each of China’s seven artificial islands in the Spratlys.

The U.S. position, however, effectively amounts to a rejection of Chinese sovereignty over territory in the cases of Mischief Reef and Second Thomas Shoal. The former is the site of one of China’s largest artificial islands and one of the three in the region that features a large airstrip. In line with the 2016 tribunal’s finding, the United States now concurs that those two features fall on the Philippines’ continental shelf. Given the anxieties last year and this year in the U.S.-Philippines alliance, including over the fate of the Visiting Forces Agreement, such an assurance should be welcomed in Manila.

The focus on maritime entitlements gets to the broader political issue at the center of this policy review, which is China’s coercive attempts to claim and exploit offshore marine resources in the exclusive economic zones of other countries. The revised U.S. policy notes that “Beijing’s claims to offshore resources across most of the South China Sea are completely unlawful, as is its campaign of bullying to control them.”

Last year, the United States threw its support behind Vietnam, calling out China’s “bullying” behavior as a Chinese survey ship conducted exploratory activity in Hanoi’s EEZ. An important shift in this regard is also the United States’ adoption of the broader phrase “freedom of the seas” versus the older focus on “freedom of navigation,” which Southeast Asian states always saw as a narrow focus on the navigational rights for U.S. military warships in the South China Sea.

The Trump administration’s move is, in many ways, deeply discordant with nearly every other aspect of its foreign policy: It reinforces the value of international law instead of dismantling established global precedent. But given the ongoing intensification of U.S.-China competition and the administration’s doubling down on pressuring China on all fronts, it’s perhaps less surprising that U.S. officials are happy to use any and all tools available to pressure Beijing.

There are still remaining hypocrisies, of course, that China may seek to exploit. For example, Washington continues to tout the 1982 United Nations Convention on the Law of the Sea (UNCLOS) as the basis of its legal reasoning, but still has not ratified the agreement. The Trump administration may be willing to wield international law as a useful cudgel in this case, but it is unlikely to press on the Republican-controlled U.S. Senate to advice and consent to the final ratification of UNCLOS.

Another way in which the move goes against the Trump administration’s typical practices is the manner in which American allies and partners had been consulted beforehand. A day after Pompeo’s announcement, David Stilwell, the top State Department official responsible for East Asia and the Pacific, discussed the broader impetus for the strategy and how it tied into broader U.S. reassurance activities in Southeast Asia.

In general terms, the move is one to be welcomed and is almost certain to outlast the Trump administration should it leave office in January 2021. (At the time of writing, polling averages in the United States do not bode particularly well for the incumbent president.) As the United States continues to step its criticism of China on all fronts, from Hong Kong to Xinjiang, this policy change in the South China Sea will likely not change much practically in U.S.-China relations. Beijing, after all, will continue to maintain the upper hand when it comes to its artificial islands. Where this administration – and the next – can make the most of this recalibration of American policy to better match the July 2016 award is in outreach to allies and partners in the region. By supporting international law, the United States can also create incentives for other states, like Vietnam, to potentially consider the benefits of legal action against China themselves. For now, the gesture is a reminder that despite Beijing’s best efforts, might does not make right in the South China Sea.