In his first official press conference, the White House spokesman Sean Spicer surprised the audience with his strong yet confusing comments on U.S. policy with regard to the South China Sea (SCS). Although it seems still too early to conclude that the newly sworn-in Trump Administration has settled on a new SCS policy, it is appropriate to ask questions about Spicer’s comments.
Spicer responded to one question regarding the SCS that “the U.S. is going to make sure that we protect our interests there.”
Question # 1: What is U.S. interest in the South China Sea?
The previous Obama administration has loosely categorized American interest in the SCS as (1) maintaining freedom of navigation (FON); (2) commitment to allies and assurance to regional partners; and (3) upholding international laws and rules.
On the issue of FON, commercial shipping in the SCS has never been an issue for no such traffic has been impeded by any state. Freedom of navigation in this regard is in everyone’s interest and no one is against it. The difference results from the interpretations of FON when the term is used. Fishing activities are sometimes disrupted due to disputing claims of fishing rights, which should not be put into the FON category. However, the U.S. is at odds not only with China, but with most SCS coast states over the right for military ships transiting their territorial waters without prior notification or consent, or conducting reconnaissance and surveillance operations in their EEZ against them. Apparently China and the U.S. do not share the same view of FON in this regard and the same interpretation of relevant UNCLOS articles. As a result, crisis occurred when their military or government ships ran into each other.
To credit its defense commitment to allies and partners, the U.S. is beefing up its military presence around the SCS, which deepens China’s concern of being encircled and contained, and promotes its own military buildup. If this negative dynamics continues, the SCS will see even more dangerous confrontations.
Both China and the U.S. are very comfortable with the current system of international laws and rules: the former benefits a lot by abiding to them, and the latter has been the builder as well as the keeper of them. However, laws and rules are never neat and clear-cut. They have loopholes. How to apply them to the SCS cases? Who has the right to explain them? What are the best ways to enforce them? These are some of the fundamental issues that China and the U.S. have to talk about with each other. A rule-based SCS maritime order is what China wants, what all SCS parties desire, and what the U.S. calls for.
Therefore, for the new administration, it is necessary to specify the U.S. interest in the SCS, before lashing out against China for impeding its interests.
Mr. Spicer also commented, “It’s a question of if those islands are in fact in international waters and not part of China proper, then yeah, we’re going to make sure that we defend international territories from being taken over by one country.”
Question # 2: Are the land features in the SCS, “international territories” or “national territory”?
There is no need to delve into a pedantic study on the connotations of “international territory”. Territories, by default, are national, not international. After WWII, the U.S. decided to give up its sovereignty over a piece of land in New York City as the site for UN headquarters, and other countries followed suit in hosting UN organizations. These pieces of lands might in a sense be viewed as “international territories”.
However, hundreds of land features in the Spratlys have been claimed by China for centuries and mapped officially for decades. These land features are not only claimed by China, but also by other SCS coastal states, none of them has ever offered any land feature to international organizations and renounced their sovereignty. As facts on the ground (or on the sea) show, each of the claimants has occupied a number of the land features in the Spratlys, and has been expanding them in one way or another. There is no law to delegitimize such practice whether it is accomplished piecemeal or all at once. Therefore, the core of the disputes is not over the encroachment of one country into “international territory”, but over whose national territory these land features are. Being no party to such disputes, the U.S. is considered an external factor to the disputes, which, notwithstanding its stand of taking no position in territorial disputes, has meddled in the SCS affairs in recent years.
Question # 3: Does the U.S. have the authority to defend other countries’ territories?
The U.S. has taken on the responsibility of defending its treaty allies. Among the SCS coastal states, it has only one such ally –
the Philippines. However, the disputed land features are not in the geographic coverage of the defense treaty, so the U.S. is not committed to defending the disputed land features by treaty obligations. Does the U.S. have the right to defend “international territories”, or “international interests”, whatever they might mean? In fact, the U.S., as the world’s only superpower, has assumed the role of the world police since the end of the Cold War. Policing must be carried out in accordance of laws and regulations, and as the U.S. leaders so frequently call for, in a rule-based manner. Currently, there is simply no international law authorizing the U.S. to defend whoever’s territory in the SCS, especially through military means.
When thinking about Mr. Spicer’s comments on the American SCS policy, one cannot help linking them to the statement made by the in-coming Secretary of State Rex Tillerson. When testifying before the Senate Foreign Relations Committee on Jan 11, Tillerson suggested that China’s “access to those [newly built] islands is also not going to be allowed.”
Question # 4: What does a denial of China’s access to the land features mean?
If a military blockade is implemented to deny China the access to the islands, which China has for decades been exercising administrative and military control, it means an invasion against Chinese territory, and an armed confrontation, with the danger of escalation between the two greatest powers and also between the two nuclear armed powers.
Last question: What should we do in the SCS?
For months, the SCS has seen a reduction in tension, thanks to the bilateral efforts of China, Vietnam and the Philippines, as well as the multilateral endeavors among ASEAN states and China. The relevant parties are able to keep their competing claims under control and refocus on issues of common interest. The Declaration on the Conduct of Parties in South China Sea is being further implemented, and the Code of Conduct is being negotiated. The U.S. is not a party directly relevant to territory disputes. Any role it plays should be conducive to the recent positive developments. A peaceful and stable SCS maritime order is beneficial to China, to all the surrounding states and to the United States.
The Trump Administration is brand new in office. The leadership, the media, and the public in both China and the U.S. need time to know each other. People in charge need time to complete their learning curve. Extensive consultations with those who have accumulated expertise in handling difficult and complicated issues are more than necessary. It is a critical moment for both to exercise prudence and patience. Random statements would hurt a relationship, which is most difficult and complex, and too consequential to fail.