The South China Sea, Southeast Asia’s Patrimony, and Everybody’s Own Backyard
DAVID R. STILWELL, ASSISTANT SECRETARY
BUREAU OF EAST ASIAN AND PACIFIC AFFAIRS
CENTER FOR STRATEGIC AND INTERNATIONAL STUDIES (VIRTUAL)
JULY 14, 2020
Remarks as prepared
Thank you, Greg. I’m honored to join you. I commend CSIS for regularly convening leading thinkers on the Indo-Pacific and on the South China Sea in particular. Your work is an invaluable resource to us all.
This is a timely and important discussion. In recent months, while the world has focused on the fight against COVID-19, the People’s Republic of China (PRC) has doubled-down on its campaign to impose an order of “might makes right” in the South China Sea. Beijing is working to undermine the sovereign rights of other coastal states and deny them access to offshore resources – resources that belong to those states, not to China. Beijing wants dominion for itself. It wants to replace international law with rule by threats and coercion.
In recent months, Beijing has sunk Vietnamese fishing vessels, sent an armed flotilla to harass Malaysian offshore energy exploration, and wielded maritime militia to surround Philippine outposts. Beijing has further militarized its artificial islands in the Spratlys with new aircraft deployments. It has announced unilateral fishing bans. It has conducted destabilizing military exercises in contested waters around disputed features. And it increasingly uses its artificial islands as bases for harassment operations – to curtail access of Southeast Asian coastal states to offshore oil, gas and fisheries.
We all know why this matters. By claiming “indisputable sovereignty” over an area larger than the Mediterranean and trampling the rights of others, Beijing threatens the existing order that has given Asia decades of prosperity. That order has been based on freedom and openness, ideas that Beijing opposes.
Nearly $4 trillion in trade transits the South China Sea each year. More than $1 trillion of that is linked to the U.S. market. The sea is home to an estimated $2.6 trillion in recoverable offshore oil and gas. It also has some of the world’s richest fishing grounds that employ an estimated 3.7 million people in coastal Southeast Asian states.
These resources are the birthright of Southeast Asian nations, the lifeblood of their coastal communities, and the livelihood of millions of their citizens. They are the inheritance of each nation’s children and grandchildren. Beijing’s behavior is an assault on the people of Southeast Asia today, and from generation to generation.
ANNIVERSARY OF TRIBUNAL RULING
This week marks the anniversary of a historic statement on international law in the South China Sea: the 2016 Arbitral Tribunal ruling.
This case of peaceful arbitration was brought – with real courage – by the Philippines. And the verdict was unanimous: Beijing’s Nine-Dash line maritime claim has no basis in international law. The tribunal sided squarely with the Philippines on the bulk of its legal claims.
Beijing has since tried to delegitimize and ignore the verdict, despite its obligations to abide by it as a party to the United Nations Convention on the Law of the Sea. Beijing likes to present itself as a champion of multilateralism and international institutions, but it has dismissed the verdict as “nothing more than a piece of paper.”
Only the gullible or the co-opted can still credit Beijing’s pretense of good global citizenship. Today we are hearing more and more voices raised against Beijing’s aggressiveness and unilateralism.
We welcome the clear insistence last month by Leaders from the Association of Southeast Asian Nations that South China Sea disputes should be resolved on the basis of international law, including UNCLOS.
The wider world is also speaking up and taking action, in recognition that Beijing’s actions pose the greatest threat to freedom of the seas anywhere on the planet. South China Sea issues have direct bearing on the future of the Arctic, the Indian Ocean, the Mediterranean, and other vital waterways. What is at stake in the South China Sea has a direct impact on every nation and person who relies on freedom of the seas and the free movement of maritime commerce to ensure their nation’s prosperity.
U.S. POLICY IN THE SOUTH CHINA SEA
The United States has strengthened our own approach to the South China Sea.
Our policy is to champion a free and open Indo-Pacific in which all the region’s diverse nations can live and prosper in peace. Our policy appreciates the diversity of those nations. It defends sovereignty, independence, and pluralism. A free and open Indo-Pacific means a region where countries are secure in their sovereignty and equal in their shared use of the global commons. No hegemonic power dominates others or turns international waters into a zone of exclusion.
Our approach builds on America’s long record in the Pacific of preserving the peace, upholding freedom of the seas in line with international law, maintaining the unimpeded flow of commerce, and supporting peaceful settlement of disputes. These are important and abiding interests we share with our many allies and partners.
In recent years we have deepened our collaboration across the region. We have increased our maritime capacity-building support for Southeast Asian partners, reaffirmed alliances, and maintained a robust tempo of military activities to keep the peace. These include freedom-of-navigation operations, including five in the South China Sea so far this year; presence operations, including dual-carrier operations earlier this month; strategic bomber patrols; and combined operations and exercises with our allies and partners.
The United States continues to be the largest source of commercial investment in the region, by far. Our nearly $300 billion in annual trade in goods and services with the 650 million people of ASEAN help ensure the growing prosperity of that dynamic region. ASEAN nations now produce almost $3 trillion of annual GDP. Living standards have improved tremendously, thanks to ASEAN’s incredible energy, and a global system that has long sustained stability, security, and prosperity.
Yesterday, Secretary Pompeo announced an important step to strengthen our policy, and to stand firmly with our Southeast Asian partners in defense of their sovereign rights. The Secretary issued a statement of policy on maritime claims in the South China Sea, on the occasion of the anniversary of the 2016 tribunal ruling. Since that ruling, we have said that it is “final and legally binding” on both parties, China and the Philippines. This announcement goes further, to make clear: The PRC has no right to bully Southeast Asian states for their offshore resources.
Specifically, Secretary Pompeo said three main things:
First, the PRC has no lawful maritime claim vis-a-vis the Philippines over waters determined by the Tribunal to be in the Philippines’ Exclusive Economic Zone (EEZ) or on its continental shelf. Within those areas, Beijing’s harassment of Philippine fisheries and offshore energy development is unlawful, as are any unilateral PRC actions to exploit those resources. Nor does
the PRC have a legal claim to Mischief Reef or Second Thomas Shoal, both of which are under Philippines jurisdiction.
Second, because Beijing has failed to put forth a lawful, coherent maritime claim in the South China Sea, the United States rejects any PRC claim to waters beyond a 12 nautical mile territorial sea derived from islands it claims in the Spratly Islands. This means that the United States rejects any PRC maritime claim in the waters surrounding Vanguard Bank (off Vietnam), Luconia Shoals (off Malaysia), Natuna Besar (off Indonesia), or in the waters of Brunei’s EEZ. Any PRC action to harass other states’ fishing or hydrocarbon development — or to unilaterally carry out such activities on its own – is unlawful. Period.
Third, the PRC has no lawful territorial or maritime claim to James Shoal, off Malaysia. This one deserves a moment of study. James Shoal is a submerged feature on the sea floor some 20 meters beneath the surface. It is also only 50 nautical miles from Malaysia – and over 1,000 nautical miles from the Chinese mainland. Yet Beijing claims it as the “southernmost point of China”! The claim is absurd – appearing to derive from an erroneous old British atlas and a subsequent translation error, suggesting the underwater shoal was actually a sandbank above the waves. But it isn’t. And yet Beijing’s propaganda touts James Shoal as PRC territory and PLA Navy ships deploy there to stage ostentatious oath-swearing ceremonies. International law is clear: An underwater feature gives no rights. James Shoal is not and never was Chinese territory, nor can Beijing assert any lawful maritime rights from such spurious claims.
In all these cases, the United States stands with our Southeast Asian allies and partners in upholding their sovereign rights, and with all the rest of the law-abiding world in defending the freedom of the seas. As the Secretary has said, the world cannot – and will not – allow Beijing to treat the South China Sea as its maritime empire.
Let me briefly raise four other important aspects of the South China Sea issue: (1) the role of Beijing’s state-owned enterprises (SOEs); (2) the negotiations between China and ASEAN over a Code of Conduct; (3) Beijing’s push for “joint development” of Southeast Asian resources; and (4) Beijing’s campaign for a seat on the International Tribunal on the Law of the Sea (ITLOS).
First, on state-owned enterprises: In the South China Sea, as elsewhere, Beijing has used state-owned enterprises as tools of economic coercion and international abuse.
They have been used to dredge, construct, and militarize the PRC’s artificial island fortresses in the Spratlys, from which Beijing now violates the exclusive economic zones of Southeast Asian
states. One of Beijing’s leading infrastructure contractors that works all around the world – China Construction & Communications Corporation, or CCCC – led the dredging for Beijing’s South China Sea military bases, with terribly destructive effects on the marine environment and regional stability.
State-owned enterprises have been used as battering rams to attempt to enforce Beijing’s unlawful “Nine Dashed Line.” China National Offshore Oil Corporation, or CNOOC, used its mammoth survey rig HD-981 to try intimidating Vietnam off the Paracel islands in 2014. It is telling that CNOOC’s chief executive touted that oil rig as “mobile national territory.” The implications of such a statement should give pause to every nation that relies on the freedom of the seas for prosperity and security.
Other PRC commercial survey ships and rigs have been sent repeatedly into Southeast Asian waters in which China has no rights. Numerous PRC state-owned tourism, telecom, fisheries and banking firms invest in ways to enable Beijing’s unlawful claims and bullying. PRC fishing fleets in the South China Sea often operate as maritime militia under the direction of China’s military, harassing and intimidating others as a tool of violent state coercion.
These state-owned enterprises are PRC instruments of abuse, and we should highlight their improper behavior. We should also shine light on how these companies operate around the world, including across Southeast Asia and in the United States. In all our societies, citizens deserve to know the differences between commercial enterprises and instruments of foreign state power. These state enterprises are modern-day equivalents of the East India Company.
Second, on Code of Conduct talks: There are clear red flags about Beijing’s intentions. For years Beijing has insisted that ASEAN states keep silent on the proceedings. Press reports have shown why: Behind closed doors, the PRC has pushed ASEAN states to accept limits on core matters of national interest.
These include limits on who ASEAN states can partner with for military exercises and offshore oil and gas work. Beijing is also pressuring ASEAN nations to cut ties with “outside” states and to dilute references to international law. These are demands of a bully, not a friendly neighbor. Beijing may have backed off its arbitrary 2021 deadline for concluding the talks, but its hegemonic goals remain.
U.S. interests are clearly at stake in the Code of Conduct process, as are those of all states who value freedom of the seas. A Code of Conduct that in any way legitimates Beijing’s reclamation, militarization, or unlawful maritime claims would be severely damaging, and unacceptable for many nations. We urge greater transparency in the Code of Conduct process to ensure a positive outcome that is fully consistent with the principles enshrined in the U.N. Convention on the Law of the Sea.
Third, on “joint development” deals: The PRC seeks to dominate the South China Sea’s oil and gas resources. To achieve this, Beijing is pursuing a campaign to deny Southeast Asian states access to desperately needed oil and gas resources except through “joint development” deals that disadvantage the smaller parties – that is, the non-Chinese parties.
The PRC gambit works like this. By aggressively deploying military forces, maritime militia, state-directed oil rigs and the like, Beijing tries to drive up risk for energy firms that want to operate in the South China Sea, in hopes of pushing out foreign competition. Once accomplished, Beijing pushes other states to accept “joint development” with its own state-owned firms, saying “if you want to develop those resources off your coast, your only option is to do so with us.” These are gangster tactics.
The United States supports nations in standing up for their sovereign rights and interests, and in resisting pressure to accept any deal whereby the PRC pushes its way into a share of offshore resources it has no right to claim.
Fourth, on the International Tribunal on the Law of the Sea: Beijing is running an uncontested candidate for a judge’s position on this tribunal at an election currently slated for late August/early September.
Like the Arbitral Tribunal that ruled against Beijing in 2016, the International Tribunal is established under the U.N. Convention on the Law of the Sea. Electing a PRC official to this body is like hiring an arsonist to help run the Fire Department.
We urge all countries involved in the upcoming International Tribunal election to carefully assess the credentials of the PRC candidate and consider whether a PRC judge on the Tribunal will help or hinder international maritime law. Given Beijing’s record, the answer should be clear.
THE GLOBAL SCOURGE OF PRC BULLYING
There are lessons here that apply well beyond the Western Pacific. When Beijing uses coercion, empty promises, disinformation, contempt for rules, bad-faith diplomacy, and other underhanded tactics in the South China Sea, it is drawing on a playbook that it uses worldwide.
We see it in the East China Sea and around Taiwan, where Beijing has expanded its maritime provocations and threatening sorties. We see it in the Himalayas, where Beijing
recently took aggressive action on its frontiers with India. We see it along the Mekong River, where Beijing has used its massive cascade of dams to hold back water from downstream neighbors in Southeast Asia, contributing to the worst drought in the Mekong’s recorded history. I urge everyone to read the recent report from the Stimson Center, “New Evidence: How China Turned Off the Tap on the Mekong River.”
But Beijing’s aggressive mode of operation is visible not only in other disputes over territory and natural resources.
It is also visible in Hong Kong, where Beijing’s new national security law flouts its commitments under the Sino-British Joint Declaration of 1984 – an agreement now derided by PRC officials as nothing but a scrap of paper. Just as they said about the 2016 Arbitral Tribunal ruling on the South China Sea.
Aggressive behavior is Beijing’s general approach to international organizations. When the South China Sea came up at an ASEAN meeting in 2010, Beijing’s top diplomat thundered at his Southeast Asian counterparts: “China is a big country and other countries are small countries, and that’s just a fact.” This sort of contempt helps explain Beijing’s subversion of international institutions from the World Health Organization to Interpol, the World Trade Organization and beyond.
A few years ago, many believed that Beijing’s South China Sea abuses were mostly a local phenomenon, a kind of limited indulgence for a rising power finding its way in the world. Today we know that the Chinese Communist Party’s neo-imperial ways aren’t incidental to its character but are an essential feature of a nationalist and Marxist-Leninist mindset. Beijing wants to dominate its immediate neighborhood – and eventually impose its will and its rules on your neighborhood too, wherever you may be.
You could be a university student in Australia, a book publisher in Europe, or the general manager of an NBA franchise in Houston. You might work for an international hotel chain, a German car company, or a U.S. airline. You could be a 5G customer in Britain – or anywhere else in the world. Wherever you are, Beijing increasingly wants to stake claims, coerce, and control. By its nature, it cannot accept a pluralistic world with fundamental freedoms of choice and conscience.
The South China Sea, then, is less a faraway exception and more a sign and a threat of how the Chinese Communist Party will seek to act – unless it faces pushback. So it is good to see a wide range of countries increasingly stand against Beijing’s abuses, on a range of fronts including the South China Sea.
At the United Nations, a succession of formal declarations by Southeast Asian coastal states show clear resolve to uphold international law and reject pressure to accept Beijing’s unlawful claims. These include Vietnam, Indonesia, and Malaysia in the past months alone.
Likewise, the United States and other countries have raised concerns for the first time in the U.N. Security Council and General Assembly over the dangers of PRC actions in the South China Sea.
Australia, Britain, France, Germany and India have all recently issued statements of unprecedented concern over South China Sea activities by Beijing that put regional stability and international law at risk. Meanwhile we see promising new defense and security arrangements among allies and partners from Australia to Southeast Asia, Japan and India.
As mentioned, all the Leaders of ASEAN last month insisted that South China Sea disputes must be resolved on the basis of international law, including UNCLOS.
I’ll close by citing the statement put out Sunday by the Philippines on the fourth anniversary of the Arbitral Tribunal ruling. “The arbitration case initiated and overwhelmingly won by the Republic of the Philippines versus the People’s Republic of China is a contribution of great significance and consequence to the peaceful settlement of disputes in the South China Sea and to the peace and stability of the region at large. . . . The arbitral tribunal’s award of 12 July 2016 represents a victory, not just for the Philippines, but for the entire community of consistently law-abiding nations.”
For our part, the United States is resolved to protect our vital interests and those of our allies and friends. We are building our military capabilities. We are vigilant. We are exercising and operating wherever international law allows. We are strengthening ties with our friends. We stand ready to help bolster the military capabilities of concerned nations. We support multilateral diplomatic efforts to resist PRC encroachments. And we are providing economic options to underscore that nations need not depend on initiatives from Beijing that are fundamentally predatory.
The community of law-abiding nations will indeed stand together. For a free and open South China Sea, a free and open Indo-Pacific, and a free and open world.
Many thanks for your time. I welcome your questions.