Luca Winer, Associate Editor, Michigan Journal of International Law
Even though the United States does not make any territorial claim to the Spratly Islands, it still has important legal and strategic interests in what plays out in the South China Sea.[i] The Spratly Islands, unprepossessing in and of themselves, are important in two primary ways: economically and geo-strategically. Economically, the islands provide fish resources as well as possible natural gas and oil extraction. [ii] Moreover, whichever nation controls the Islands also has the legal rights to whatever lies within the 200 nautical miles of “exclusive economic zone” surrounding them.[iii] Maintaining freedom of navigation through the South China Sea, especially through the choke points of the Straits and Malacca and Taiwan Strait, is a fundamental regional security requirement for not only the United States, but for any country with major economic and military interests in the Pacific.[iv] These include each of the six claimants[v] to the Islands. Unsurprisingly, every one of the six asserts claims under various principles of international law and the UN Convention on the Law of the Sea (UNCLOS) to bolster their conflicting claims of sovereignty to the region. The United States, the strongest Pacific power not staking its own claim to the islands[vi], should be uniquely positioned to act as a referee in these disputes and to shape their behavior by insisting that they comport themselves within international legal constraints.[vii] But its own position is handicapped by the failure of the U.S. Congress to ratify the central instrument relevant to resolving the dispute, the UN Convention on the Law of the Sea (UNCLOS).[viii]
China is the state that has currently played the loosest with international laws, and its actions regarding the islands have already strained U.S.-China relations.[ix] Under international law, to claim sovereignty over a territory, a nation must have a permanent settlement and a historical commitment to that area. China’s behavior towards the Islands, much like the other claimants, does not meet these requirements. [x] Accordingly, the United States does not acknowledge China’s claims to them. Indeed, the United States argues that China’s historical claim to the islands is weak and that only Chinese acts of intimidation to assert its rights through intentional provocations at sea and newly-founded assertions of control over the land have kept it a player in the dispute.[xi] The United States also argues that China’s pattern of provocative and unilateral behavior raises concerns about China’s intentions to adhere to international law at all in regards to this disputed area, challenging China’s standing as a claimant even if it decides to come to the negotiating table.[xii] In an ongoing expression of the United States’ lack of regard for Chinese claims to the area, the U.S. Pacific fleet continues to sail regularly through the South China Sea, which has led to a several incidents in which Chinese ships have threatened U.S. ones and demanded they leave the area.[xiii][xiv]
Despite this aggressive language against Chinese claims, the United States has not shown preferential treatment towards any other claimants, even the Philippines, a long time U.S. ally. Although the United States ratified the 1951 United States-Philippine Mutual Peace Treaty, which states the United States should support the Philippines in territorial disputes, [xv] on July 11, 2014, in the course of a speech which still generally committed to strengthening U.S.-Philippine relations, United States Department of State Deputy Assistant Secretary Michael Fuchs stated that the United States “does not take a position on the sovereignty over land features in the South China Sea.”[xvi]
Some international observers of the Spratly Islands dispute suggest that the U.S. is not well positioned to press China too hard due to its own failure to ratify the UNCLOS, the critical international legal instrument covering rights of the kind at stake in the dispute over control of these islands. Though the U.S. generally recognizes UNCLOS as customary international law, ratification of UNCLOS has languished for some twenty years, despite the convention having been largely written by U.S. lawyers.[xvii] Despite the failure by the U.S. to ratify UNCLOS, the U.S. cites its provisions to justify its policy positions on the Spratly Islands, as reflected in statements by then Secretary of State Hilary Clinton in 2010, that the United States believes that all claimants should pursue their territorial claims in accordance with UNCLOS: “legitimate claims to maritime space in the South China Sea should be derived solely from legitimate claims to land features.”[xviii] [xix] Separately, the Department of State, has singled China out as taking actions raising doubts about its intentions under the 2002 Declaration on the Conduct of the Parities in the South China Sea, and asked China to avoid such activities in the future.[xx]
That the United States continues to cite to international instruments to push back against Chinese assertions of rights over the Spratly Islands may be seen as an example of the use of international law as a stopgap to hard power. Though the Association of Southeast Asian Nations (ASEAN) has political legitimacy and plenty of soft power, its Asian member states lack the hard power necessary (such as a defense arrangement or military) strong enough to counter China. [xxi] The Philippines, Brunei, Malaysia, Vietnam and Taiwan similarly are not strong enough to force China to come to the bargaining table. The United States itself has economic, political and security reasons for avoiding any maritime confrontation with China in the Pacific. Accordingly, the United States has relied on international norms to discourage Chinese assertions of its rights, even one such as the UNCLOS, which it has not itself ratified.[xxii]
For the Spratly Island dispute, the U.S. has asserted international law, rather than ‘a sense of historical entitlement’ as the appropriate basis of enforcing maritime claims. [xxiii] This legalistic approach has helped mitigate Chinese claims, but facts on the ground (and on the water) also matter. Accordingly, U.S. policy also includes encouraging the various claimants to desist in establishing new outposts, encouraging settlements, or creating islands via land reclamation to bolster sovereignty claims[xxiv], and asking all claimants instead to settle their rights in an international forum.[xxv]
Asking the parties to cool down confrontations and instead to cooperate has already generated some positive results, even in the often tense U.S-Chinese bilateral relationship. There has been promising cooperation between the U.S. Coast Guard and various Chinese maritime enforcement agencies, with bilateral exercises in search and rescue training and port security.[xxvi] This type of cooperation should be strengthened further: for example, again with regards to China, the United States could defuse the freedom of navigation issue by indicating that it would no longer exercise (or severely curtail) it rights to navigate in the South China Sea.[xxvii] In return, the United States could secure a concession from China, such as ceasing island creation.
Secondly, the United States must facilitate all claimants to join and submit to a multilateral, international arbitration, as called for by UNCLOS. [xxviii] [xxix] This second component will likely be more difficult, as China has resisted efforts to approach the issue multilaterally before- partly due to its obvious military superiority in the region, and partly due to its refusal to acknowledge Taiwan as a separate nation with any territorial claims whatsoever.[xxx] Even if full-blown multilateral talks are currently unfeasible, the United States could also support the creation of a joint “Spratly Resource Development Authority” which China has indicated it would not be opposed to. The Chinese government has explicitly stated, “joint ventures to exploit the natural resources of the South China Sea may be discussed.”[xxxi] The more international institutions that the claimants accept and use to strengthen their claims of legitimate sovereignty of the Spratly Islands, the more likely they are to be forced into acknowledging the requisite responsibilities that come along with the benefits of being an international law team player.
The United States is not as well positioned to encourage Spratly Island claimants to adhere to international law as it could be if the Obama Administration or its predecessors had secured ratification of the UNCLOS. But it is a fight worth continuing, as the recent Chinese creations of artificial islands increases regional tensions to a breaking point.[xxxii] In the absence of a successful multilateral arbitration, the risks of another international incident involving the islands and any of their six major claimants could be substantial.
[i] Clarence J. Bouchat, Dangerous Ground: The Spratly Islands and U.S. Interests and Approaches,
Strategic Studies Institute and U.S. Army War College Press, 18 (2013), available at http://www.strategicstudiesinstitute.army.mil/pdffiles/pub1187.pdf.
[ii] Id. at 1,4—8.
[iii]Id. at 54.
[iv] Christopher C. Joyner, The Spratly Islands Dispute in the South China Sea: Problems, Policies, and Prospects for Diplomatic Accommodation, in Investigating Confidence-Building Measures in the Asia-Pacific Region, 53, 55 (Ranjeet Singh ed., 1999), available at http://www.stimson.org/images/uploads/research-pdfs/cbmapspratly.pdf.
[v] The six nations claiming part or all of the Spratly Islands are China, Vietnam, the Philippines, Taiwan, Malaysia and Brunei. Bouchat, supra note 1, at 41.
[vi] Michael Fuchs, Deputy Assistant Sec’y, Bureau of E. Asian and Pac. Affairs
Ctr. for Strategic and Int’l Studies, Fourth Annual South China Sea Conference, July 11, 2014, available at http://www.state.gov/p/eap/rls/rm/2014/07/229129.htm.
[vii] Bouchat, supra note 1, at xi.
[ix] David Wagner & Edsel Tupaz, China, the Philippines and the Rule of Law, The World Post, Jan. 23, 2013, available at http://www.huffingtonpost.com/daniel-wagner/china-philippines-rule-law_b_2533736.html.
[x] David Livingstone, The Spratly Islands: A Regional Perspective, 1 Journal of Wash. Institute of China Studies, 149, 150—51 (2006), available at http://www.bpastudies.org/bpastudies/article/view/7/16.
[xi]Jim Haw & Brittany Cheng, The Philippines and Spratly Islands: A Losing Battle, Sci. Am., June 04, 2013, available at http://blogs.scientificamerican.com/expeditions/2013/06/04/the-philippines-and-spratly-islands-a-losing-battle/.
[xii] Fuchs, supra note 6.
[xiii] There have been at least ten documented cases of harassment by Chinese ships against U.S. ships between the years 2001-2009. Chinese ships would claim the U.S. was sailing in Chinese waters, while the U.S. maintained that their boats were in international seas. Bouchat, supra note 1, at 19.
[xiv] Rupert Wingfield-Hayes, China’s Island Factory, BCC News, Sept. 09, 2014, available at http://www.bbc.co.uk/news/special/2014/newsspec_8701/index.html.
[xvi] Fuchs, supra note 6.
[xvii] Bouchat, supra note 1, at xi.
[xviii] Id. at 40.
[xix] Technically, UNCLOS does not apply to any disputes that arose before it was created, which includes all Spratly Islands claims, but there is still an expectation for signatories (of which all states claiming rights to the Islands are, except Taiwan due to being ineligible) to abide by its tenants despite it being applied retroactively. Id. at 41.
[xx] Fuchs, supra note 6.
[xxi] Here ‘soft’ and ‘hard’ power is used in accordance with Joseph Nye’s definitions. Hard power is the direct application of force or using money as a means of persuasion, while soft power is the ability to attract and co-opt rather than coerce, often through possessing moral authority, political legitimacy and/or cultural dominance. For more information on soft power in regards to China, see Joseph Nye, What China and Russia Don’t Get About Soft Power, Foreign Policy, Apr. 29, 2013, available at http://www.foreignpolicy.com/articles/2013/04/29/what_china_and_russia_don_t_get_about_soft_power.
[xxii] Bouchat, supra note 1, at xii.
[xxiii] Fuchs, supra note 6.
[xxiv] Wingfield-Hayes, supra note 14.
[xxv] Fuchs, supra note 6.
[xxvi] Bouchat, supra note 1, at 75.
[xxvii] Id. at 73.
[xxviii] What Should the US do in the South China Sea?, Global Post, Aug. 16, 2012, available at http://www.globalpost.com/dispatches/news/regions/asia-pacific/china/us-south-china-sea-spratly.
[xxix] UNCLOS calls for states in conflict to submit to dispute resolution, with arbitration being he assumed format, unless stated otherwise. Bouchat, supra note 1, at 41.
[xxx] Joyner, supra note 4, at 77—78.
[xxxi] Id. at 81.
[xxxii] Wingfield-Hayes, supra note 14.