China has unveiled a new talking point against U.S. policy in the South China Sea. Recently, the Diplomatic Academy of Vietnam convened its 12th annual South China Sea International Conference, during which a Chinese law professor criticized U.S. policy in the South China Sea. In particular, she attempted to compare policy statements on the U.S. government’s position on the South China Sea issued by the U.S. Department of State, the first in 1995 and the others in June and July 2020. She then made a critical conclusion, “We see that the position of the U.S., to take no position on the territorial issues, has been derogated.”
Some observers might dismiss this criticism as merely the views of one Chinese scholar sharing her personal opinion, but the public record suggests otherwise. Immediately after the United States issued its July 2020 South China Sea policy statement, which reiterated, clarified, amplified and strengthened U.S. policy, China’s Ministry of Foreign Affairs spokesman made a similar point during a daily press briefing, claiming the U.S. statement “breaks the US government’s public commitment of not taking a position on the South China Sea sovereignty issue.” Five days later, another Chinese legal scholar accused the United States of changing “from a neutral third party to an active supporter of part [sic] of the claimants against another.” Yet another Chinese legal scholar posted online a lengthy analysis of U.S. South China Sea policy statements over the past 25 years and argued that the U.S. government now “take sides” in the sovereignty issue. With official and unofficial Chinese voices recently singing in such harmony, one could reasonably conclude that this is a new Chinese talking point in the battle of South China Sea narratives.
But this new Chinese talking point can and should be scrutinized on several levels. Below is an analysis of the main aspects of this talking point. First, this analysis will assume arguendo that the underlying premise of this new Chinese talking point is true and then briefly identify three implications of the talking point and quickly discredit each of those implications. Second, this analysis will focus on the core assertion of this new Chinese talking point and refute its substance. Ultimately, this analysis will show that this new Chinese talking point is false and should be dismissed as such because the U.S. has not, in fact, abandoned its position on sovereignty disputes in the South China Sea.
Discrediting the Implications of the New Chinese Talking Point
Initially, assume for the sake of argument that the substantive assertion of this new Chinese talking point is true—that is, the United States is now taking a side in the sovereignty disputes among the South China Sea claimant states. This talking point contains three implications, each of which is not credible.
First, the talking point implies that the U.S. government is somehow violating one of its international obligations with its July 2020 South China Sea policy statement. But law is law, and policy is policy. Thus, if the U.S. government or any other nation-state’s government deliberately decides to change its foreign policy on a particular matter and that policy change does not violate any of the state’s existing legal obligations, it fully possesses the discretion to do so. Any insinuation by this new Chinese talking point that the United States has disobeyed a rule or broken an obligation with its South China Sea policy is false. Moreover, through China’s “cabbage strategy” and “salami-slicing tactics,” China has visibly imposed a more aggressive policy in the South China Sea toward other claimant-states and toward the United States over the past 25 years. In essence, China implies that the United States must not change its policy, even if China chooses to change its policy—which it has.
Second, the talking point implies that the United States is required to remain neutral among the South China Sea claimant-states in their competing territorial and maritime claims. But as a matter of international law, sovereign states are not generally prohibited from aligning with other sovereign states in their international relations. Moreover, no sovereign state—including the United States, China or any other state—is obligated as a matter of international law to refrain from favoring one claimant-state over another claimant-state in their disputes over competing territorial or maritime claims to which that state is not a party. Thus, if the United States adopted a policy taking a side in competing claims in the South China Sea, such policy would be lawful under international law.
Third, it also implies that China is adamant that the United States not take any side in South China Sea disputes, as a matter of principle. But consider the following hypothetical scenario: What if the leaders of the U.S. government woke up tomorrow and decided to adopt a policy that definitively takes a side in the South China Sea disputes—and that side happened to be China’s side? Would Beijing decline or criticize such a new U.S. policy? During the days leading up to the South China Sea arbitration ruling in July 2016, China’s official state-run news agency Xinhua published an article proudly announcing, “Many African countries have recently voiced their support to China over the Philippine-initiated arbitration on the South China Sea dispute[.]” For a moment, assume the veracity of that previous Xinhua article. If the United States similarly “voiced support to China” in the South China Sea disputes tomorrow, one could reasonably predict that every Chinese spokesperson, state-run news outlet and proxy would immediately wave that U.S. endorsement in the faces of the other claimant-states and to the rest of the world. Thus, while the new Chinese talking point implies that China wants the United States not to take any side in the South China Sea disputes, it actually wants the United States not to take a side other than China’s side in these disputes.
Refuting the Substance of the New Chinese Talking Point
Taken together, the above implications would discredit the new Chinese talking point. But what really makes the talking point flawed is that its core assertion is false. Has the United States abandoned a long-standing element of its South China Sea policy and is now, in fact, taking a side in the competing claims among the South China Sea claimant-states? The short answer is no, but the explanation for that short answer requires a more detailed analysis.
Consider what exactly this new Chinese talking point says on the issue of sovereignty. The Chinese scholar speaking recently in Vietnam quoted part of the 1995 U.S. statement: “The United States takes no position on the legal merits of the competing claims to sovereignty over the various islands, reefs, atolls, and cays in the South China Sea.” That same scholar then quoted from a U.S. diplomatic note issued a few weeks before the July 2020 policy statement, which stated, “China may not assert sovereignty over, or claim maritime zones derived from, entirely submerged features[.]” Comparing the 1995 and 2020 policies, she then concluded that the U.S. “changed” its policy toward the “territorial disputes in the South China Sea since 1995.” Similarly, one of the other Chinese scholars accused the United States of “‘taking sides’ in the sovereignty issue” (emphasis added). Most importantly, the Chinese government’s spokesperson alleged that the United States has broken its commitment “of not taking a position on the South China Sea sovereignty issue” (emphasis added).
But this new Chinese talking point has several substantive flaws. More specifically, it oversimplifies the complex nature of the South China Sea situation, it conflates the issues of competing territorial claims with excessive maritime claims, and it overlooks that this complex situation triggers multiple U.S. foreign policies concurrently.
At the outset, one should understand that the South China Sea situation is a complex problem, which involves four categories of territorial and maritime disputes: competing territorial claims, competing maritime claims, overlapping maritime claims and restrictive maritime claims. Competing territorial claims occur when two or more nations are claiming sovereignty of the same territory, whether it is continental territory or an island. Competing maritime claims flow from competing territorial claims. That is, if two or more nations claim sovereignty of the same island, then they likewise are both claiming maritime zones around that island. Overlapping maritime claims occur when the waterspace between two claimants is less than the maximum breadth of maritime zones that coastal states may claim from their territory. For example, if there are less than 24 nautical miles of waterspace between two states, then those states are unable to enjoy the full entitlement of a 12-nautical mile territorial sea. Likewise, if there are less than 400 nautical miles of waterspace between two states, then they are unable to enjoy the full entitlement of the maximum breadth of a 200-nautical mile exclusive economic zone. Restrictive maritime claims occur when a coastal state attempts to restrict the activities of other states within that state’s maritime zones in a manner or to an extent greater than the applicable international law would permit. All four types of territorial and maritime disputes exist in the South China Sea simultaneously.
It is important to understand the differing natures of these four categories of disputes in the South China Sea because different bodies of international law apply. For competing territorial claims and competing maritime claims, the applicable body of international law is the customary law of sovereignty. Concurrently, for overlapping maritime claims and restrictive maritime claims, the applicable body of international law is the international law of the sea, reflected primarily in the U.N. Convention on the Law of the Sea (UNCLOS).
Additionally, it is important to distinguish among these four categories of disputes because different national policies might apply to different disputes. In situations involving competing territorial claims and competing maritime claims, one national policy might apply. When the United States is not a claimant in a dispute over competing claims to a particular island, the long-standing U.S. policy is generally not to take a particular claimant’s side on the ultimate issue of which claimant-state has sovereignty of the island or the sovereign territorial seas surrounding the island. Instead, the United States calls on the claimants to resolve the dispute by peaceful means and in accordance with international law. This U.S. policy has been declared and reiterated specifically for the competing claims in the South China Sea.
But in situations involving restrictive maritime claims, a different national policy might apply. For the United States, that would be a second, long-standing policy that applies globally: specifically, the U.S. freedom of navigation (FON) policy, which respects lawful maritime claims asserted by coastal states but challenges “excessive” (in other words, restrictive) maritime claims. Applying this policy for decades in the South China Sea, the U.S. government has carried out diplomatic activities (such as diplomatic protests) and operational activities (such as FON operations or FONOPs) to preserve its rights, freedoms and lawful uses of the sea guaranteed under international law. In short, the complex South China Sea situation triggers both of these U.S. policies simultaneously: The United States does not take a side among the claimant-states on their competing territorial and competing maritime claims, but it does challenge the restrictive maritime claims asserted by some of the claimant-states.
The substantive flaw in the new Chinese talking point is that it incorrectly accuses the United States of reneging on a purported national policy to steer completely away from any issues in the South China Sea that involve sovereignty. These Chinese voices speak of “the” sovereignty issue, as if there could be only one type of dispute or situation in the South China Sea that touches on, involves or implicates questions of sovereignty. Traditionally, there have been only two categories of South China Sea disputes that touched on sovereignty: competing territorial claims (that is, different claimant-states had been claiming that they had sovereignty of the same South China Sea islands) and competing maritime claims (that is, claimant-states had been claiming sovereignty of the same territorial seas surrounding islands). The United States has long maintained a take-no-side policy for these two types of competing claims to sovereignty. A closer look at the first element of the 1995 statement by the U.S. Department of States reflects this nuance: “The US takes no position on the legal merits of the competing claims to sovereignty over the various islands, reefs, atolls, and cays in the South China Sea” (emphasis added).
But after 1995, particularly between 2013 and 2016, China injected a new legal issue of sovereignty into the South China Sea situation. Beginning in September 2013, China undertook massive land reclamation and, what I have previously described as, “clamation” (that is, creating entirely new above-water artificial features, as opposed to restoring geographic features to their original, natural status) on a number of individual features in the South China Sea. Previously, some of these features were naturally submerged features or stand-alone, low-tide elevations. For features like these, the applicable rules of international law are clear. Article 2 of UNCLOS states that a coastal state has “sovereignty” of its territorial sea, both along its coastline and around its islands. But Article 13 of UNCLOS clearly states that naturally submerged features or stand-alone, low-tide elevations are not entitled to a territorial sea of their own. Moreover, Article 60 of UNCLOS clearly states that artificial islands are not islands, have no territorial sea of their own, and do not affect delimitations of exclusive economic zones. Therefore, before China’s reclamation and clamation between 2013 and 2016, these features and the surrounding waters were not entitled to any lawful claims of sovereignty.
When China undertook these island-building efforts, then-Commander of the U.S. Pacific Fleet Harry Harris publicly stated that “the scope and pace of building man-made islands raises serious questions about Chinese intentions.” Would China attempt to claim some special status of these features and surrounding waters based on China’s human modification of them? Soon thereafter, China began to answer that question indirectly in its public statements, when responding to FONOPs in the vicinity of China’s artificial islands in the South China Sea.
Consider, for example, Mischief Reef, which is a feature located in the southern portion of the South China Sea. In 2016, the UNCLOS arbitral tribunal conducted an extensive review of historical evidence, found Mischief Reef to be a low-tide elevation, and concluded it is not entitled to a sovereignty claim of territorial seas. Since the tribunal’s 2016 ruling, the U.S. Navy has conducted FONOPs within 12 nautical miles of Mischief Reef in a manner that challenges any purported claims of sovereignty to a territorial sea around this artificial island. But China’s Ministry of Foreign Affairs stated that such FONOPs “violated China’s sovereignty and security interests” (emphasis added).
For four decades, the United States has conducted FONOPs challenging excessive maritime claims asserted by many coastal states around the world. These have included FONOPs challenging several categories of excessive maritime claims asserted by China in the South China Sea. Because of China’s artificial island-building in the South China Sea between 2013 and 2016, however, the United States began to conduct FONOPs in 2017 and years thereafter that challenge a new excessive maritime claim asserted by China: “[a]ctions and statements that indicate a claim to a territorial sea around features not so entitled (i.e., low-tide elevations).”
Contrary to the new Chinese talking point, the U.S. policy in the South China Sea has not been contradictory on issues of sovereignty. For competing claims of sovereignty in the South China Sea, the United States has not taken and continues not to take a side on which claimant-state has sovereignty of specific islands. At the same time, however, the United States does not recognize any claim in the South China Sea by any claimant-state that expressly or implicitly asserts sovereignty to geographic features located in the South China Sea that are not entitled to sovereignty or a sovereign territorial sea as a matter of international law (such as submerged features and stand-alone, low-tide elevations). Such maritime claims would be excessive maritime claims.
In theory, a state could be fairly described as “taking a side” in a dispute between two other states if those other two states were undertaking similar actions and the third state characterized those similar actions differently under international law. Consider the following hypothetical scenario: If State A and State B were engaged in an armed conflict and both states were employing chemical weapons in the conflict contrary to their respective treaty obligations, then State C could be fairly described as “taking a side” if it criticizes only State A’s behavior as violating international law. However, if State A was employing chemical weapons in violation of its treaty obligations but State B was not, then State C would not necessarily be “taking a side” in the conflict by criticizing State A’s actions and not criticizing State B’s. Instead, State C would be following a principled approach to the situation, by speaking out against specific actions undertaken by a particular state that violate applicable international law.
In the South China Sea context, the United States has consistently characterized certain restrictive maritime claims by coastal states as “excessive” under the international law of the sea. For example, when the U.S. Navy conducts a FONOP to protect the right of innocent passage through the territorial sea surrounding one of the naturally formed Spratly Islands to which multiple claimants claim sovereignty, the U.S. government publicly states that this FONOP is challenging multiple excessive maritime claims simultaneously: the prior notification requirement by Taiwan, the prior notification requirement by Vietnam and the prior authorization requirement by China. While not taking a side on which claimant has sovereignty of specific Spratly Islands, the United States is challenging restrictive maritime claims asserted by three claimants, which the United States considers as a matter of principle to be “excessive” under international law. What about when the United States criticizes China’s “nine-dash line” in the July 2020 statement? Like State A in the second hypothetical scenario above, China is the only South China Sea claimant—indeed, the only coastal state in the world—that has asserted a patently invalid claim like the nine-dash line. Thus, the United States is not “taking a side” when it criticizes the nine-dash line, which was invalidated by an UNCLOS arbitral tribunal and has been criticized by every other state that has chosen to speak publicly about it. It is following a principled approach to the situation.
Of note, this element of 2020 U.S. policy is entirely consistent with another paragraph in the U.S. policy statement issued in 1995: “The US is opposed to any maritime claim or restriction on maritime activity in the South China Sea that is not consistent with the 1982 United Nations Convention on the Law of the Sea.” In 1995, that element of U.S. policy was addressing attempts by China, Taiwan and Vietnam to restrict the right of innocent passage guaranteed to all ships, including foreign warships, guaranteed under the international law of the sea. But fast-forward 25 years and that same 1995 statement would also apply to China’s efforts to claim a sovereign territorial sea around artificial islands that it is has subsequently constructed in the South China Sea, as well as China’s attempt to assert some special status to all of the waters enclosed within its infamous nine-dash line.
Therefore, despite the efforts of the new Chinese talking point to conflate all issues involving sovereignty in the South China Sea, this situation cannot be oversimplified. In fact, sovereignty issues can be implicated in more than just competing claims in the South China Sea to include restrictive maritime claims. In other words, due solely to China’s overreaching behavior in recent years, another sovereignty issue has triggered the application of another, long-standing U.S. policy: its FON policy.
Deriving the Purpose of the New Chinese Talking Point
Given the falsity of this new Chinese talking point, the question is whether it is based on an unintentional misunderstanding or involves a malevolent intention. If it is the latter, we must be mindful that China’s government sees the purpose of strategic communications as to “guide public opinions.” In the context of battling South China Sea narratives, if China employs a particular talking point, then the logical questions for one to ask are: which “public” (target audience) and where are they being “guided” (intended effect).
The answers to these questions are not entirely clear for this new Chinese talking point, but one could reasonably speculate as follows: If the target audience of the new talking point is the Chinese people, then perhaps the intended effect is to reinforce a long-standing, domestic Chinese narrative that the United States seeks to “contain” China, in this case by purportedly siding with the other South China Sea claimant-states against China. If the target audience of the new talking point is the U.S. government, then perhaps the intended effect is to shape and influence U.S. policymakers, in hopes that they will either hesitate or otherwise decide to engage less in the South China Sea situation, or that they will feel like they are on the defensive and must overcompensate in subsequent policy actions in order to reassure China. If the target audience of the new Chinese talking point is other claimant-states, then perhaps the intended effect is to create doubts about whether the United States can be trusted to follow a principled approach to managing and resolving the South China Sea situation, implying that the alleged change in U.S. policy shows that the United States is motivated by politics. In reality, this new Chinese talking point is not necessarily confined to merely one of these target audiences or intended effects but could be aimed to achieve multiple messaging objectives.
As analyzed above, this new Chinese talking point against U.S. policy in the South China Sea is flawed on several grounds. It is based primarily on three flawed implications, which rely on a false assertion. Due to all of these flaws, China’s government officials and proxies should cease using this new talking point, or they will continue to undermine their own credibility. But assuming that China will continue to employ this new talking point, what should others do?
First and foremost, government officials and experts from other countries should highlight these flaws and demonstrate the falsity of this new Chinese talking point at every appropriate opportunity. Additionally, future U.S. presidential administrations should consistently reiterate all of the elements of the July 2020 statement, to demonstrate to China, U.S. allies and partners, and other nations that the policy statement is an enduring national policy. Lastly, senior U.S. officials should make clear to China that the United States always reserves the right to take a side other than China’s in the competing South China Sea claims, and it may, in fact, shift to such a policy if China continues to assert itself unlawfully and improperly in the South China Sea. If so, then China would be responsible for transforming its new talking point into a self-fulfilling prophecy.