On January 11, Secretary of State nominee Rex Tillerson testified in his hearing before the Senate Foreign Relations Committee that perhaps the United States should deny China access to its artificial islands in the South China Sea. Tillerson is correct that in recent years the United States has forgotten basic lessons of deterrence when it comes to China and the South China Sea.
Latest in UN Convention on the Law of the Sea (UNCLOS)
On December 16 a Chinese warship snatched a U.S. underwater drone literally from under the eyes of the crew of a U.S. survey ship. The USNS Bowditch is an unarmed naval oceanographic vessel that was recovering two underwater drones in the Philippine exclusive economic zone (EEZ), about 50 miles northwest of Subic Bay.
It has been two months since the UN Convention for the Law of the Sea arbitral tribunal issued its blockbuster award ruling against China’s maritime claims and activities in the South China Sea. Given all the buildup, it is remarkable how little has changed since the award was released. Was the award much ado about nothing? Not quite, or at least not yet. The award still matters, although the award’s continued significance depends almost entirely on the U.S. government’s reaction.
While substantial ink has been spilled (and continues to be spilled) over Russia’s de facto annexation of Crimea and South Ossetia, comparatively little attention has been paid to the Russia’s attempted expansion in the Arctic Ocean.
In the two weeks that have passed since the UN Convention on the Law of the Sea (UNCLOS) arbitral tribunal issued its award against China, no drastic actions have been taken by any of the key parties. China has not acted to further militarize or otherwise bolster its presence in the Spratlys, and the Philippines has not demanded immediate Chinese withdrawal. Bilateral negotiations may indeed occur.
U.S. Response to the South China Sea Arbitration and the Limits of the Diplomatic “Shamefare” Option
In a post last week, I argued that the recent UN Convention for the Law of the Sea (UNCLOS) arbitral award against China opens the legal door to more aggressive U.S. freedom of navigation operations (FONOPs) to directly challenge Chinese artificial islands in the South China Sea. This week, I turn to another possible U.S. response to the arbitral award: diplomatic “shamefare.”
One of the big takeaways from the South China Sea arbitration is that the high-tide features in the Spratly Islands are mere “rocks” under Article 121(3) of the UN Convention on the Law of the Sea because they “cannot sustain human habitation or economic life of their own.” This means that even the largest islands within the group lack an exclusive economic zone and a continental shelf.
Much has been written over the past several days regarding the unanimous landmark decision in the arbitration case between the Philippines and China, which soundly repudiates China’s excessive claims and activities in the South China Sea.
What will be the effect of yesterday’s blockbuster South China Sea arbitral award on the U.S. government’s policy in the region? Reportedly, an inter-agency working group in the U.S. government has been considering this question for months.
The wait is over: a judgment has been issued in the Philippines v. China South China Sea arbitration. A five-judge tribunal constituted under the Permanent Court of Arbitration (PCA) in The Hague has released its much-anticipated Award concerning the Philippines’ challenge to a number of China’s maritime claims and activities in the region.