The United States’s Commitment and International Law in the South China Sea

By Daniel J. Kritenbrink, U.S. Ambassador to Vietnam

On July 12, 2016, the Arbitral Tribunal established under the UN Convention on the Law of the Sea (UNCLOS) 1982 concluded there is “no legal basis” for any PRC historic rights, or sovereign rights and jurisdiction, beyond those provided for in the Convention within the areas of its so-called “Nine-Dashed Line.”Vietnam, the United States, and like-minded countries around the world showed great interest in how the PRC would react.  As a party to UNCLOS, China is obligated to comply with the Tribunal’s decision. Instead, Beijing dismissed it as a “scrap of paper” and proceeded to push its unlawful maritime claims through a mounting campaign of bullying against Vietnam and other claimants.

China ignores the ruling

On the day of the ruling, the United States called the Tribunal’s decision an “important contribution to the shared goal of a peaceful resolution to disputes in the South China Sea.”  We called on claimants to clarify their maritime claims in accordance with international law as reflected in UNCLOS.  And we described the Tribunal’s decision as “final and legally binding” as provided in the Convention.

The world has watched for the last four years with growing concern as Beijing disregarded the Tribunal’s decision and accelerated its campaign of intimidation to undermine the sovereign rights and interests of Vietnam and other Southeast Asian coastal states. The PRC’s actions are part of a larger pattern of troubling behavior — coercion, subversion, disinformation, abrogation of agreements, and disregard for international treaties that it willingly helped negotiate and to which it has consented to be bound.  Our concerns have only grown as Beijing exploits the world’s focus on fighting the COVID-19 pandemic to press its claims even further, replacing international law with a mentality [of?] [that] “might makes right.”

In the face of the PRC’s relentless efforts to spurn international law and chip away at the sovereign rights and interests of Southeast Asian countries, Secretary of State Pompeo announced a change in U.S. policy on maritime claims on July 13.

Broadly speaking, the Secretary announced that because the PRC has never put forward a lawful credible maritime claim, the United States rejects any PRC claim to waters beyond a 12 nautical mile territorial sea generated from islands it claims in the Spratlys or from Scarborough Reef.

This includes a clear rejection of PRC claims to the waters near Vanguard Bank, where the PRC has engaged in a campaign of coercion and harassment against long-standing Vietnamese oil and gas development.  As Secretary Pompeo outlined, we regard this bullying as not only provocative and destabilizing — but also unlawful as well.

Our policy shift comes after the United States, joining Vietnam and other Southeast Asian nations, submitted a legal protest on June 1 to the UN Secretary General regarding China’s maritime claims in the South China Sea, and the U.S. Navy conducted several operations defending freedom of navigation in the South China Sea.

Blatantly ignoring international law

UNCLOS has been rightly called the “Constitution for the Oceans.”  It has over 160 states parties.  Although the United States is not a party, every U.S. administration since its adoption has recognized its provisions on traditional uses of the ocean as reflecting customary international law and has affirmed the United States’ adherence to them.

The PRC, on the other hand, signed and ratified UNCLOS, but blatantly ignores its treaty obligations under the Convention.International law, as reflected in the Convention, is the foundation for the rules-based international order at sea; it defines navigational rights and freedoms, provides for the protection and preservation of marine ecosystems, and establishes the rules so that all countries– regardless of their size, military, or economic power — can lawfully exploit their offshore resources.

U.S. policy statements this week further showcase our commitment to the rule of law in the South China Sea by upholding international law as reflected inUNCLOS.  This is a commitment we share with Vietnam, one of the most active proponents of UNCLOS, as shown by the strong statements that ASEAN issued on June 26 under Vietnam’s Chairmanship.

Our announcements are also evidence of the strength of the U.S-Vietnam Comprehensive Partnership.  As we celebrate 25 years since the normalization of bilateral relations, our position on the South China Sea demonstrates that we stand with Vietnam to protect its sovereign rights and interests consistent with international law – including rights to offshore oil and gas resources and fisheries, which are vital to the economic prosperity of Southeast Asian nations. We stand with Vietnam to reject the imposition of a “might makes right” mentality in the South China Sea.