Water Wars: Lines in the Great Wall of Sand

On July 13, the United States hardened its position against the People’s Republic of China (PRC) on the South China Sea. A statement from U.S. Secretary of State Mike Pompeo declared that “Beijing’s claims to offshore resources across most of the South China Sea” and “its campaign of bullying” are “completely unlawful.”

Since the July 12, 2016, arbitral tribunal ruling in Philippines v. China (South China Sea Arbitration), the United States has insisted that the decision is “final and legally binding” on both parties. The tribunal rejected China’s claims to “historic rights” and its “nine-dash line” in the South China Sea. In calling for all sides to abide by the tribunal decision, Washington—along with dozens of other countries—had thus aligned itself in support of international law and against China’s claims that fell outside the U.N. Convention on the Law of the Sea (UNCLOS).

But Pompeo’s announcement stresses U.S. support not only for the tribunal’s jurisdiction over the disputes but also for the merits of the tribunal’s findings. His statement asserts that China “has no legal grounds” to continue claiming maritime dominion throughout the nine-dash line. The statement’s strong rhetoric lambasts Chinese behavior since the 2016 ruling, saying: “The world will not allow Beijing to treat the South China Sea as its maritime empire.” Moreover, the statement paints the United States as the defender of Southeast Asian countries facing a China that is attempting to “bully them out of offshore resources, assert unilateral dominion, and replace international law with ‘might makes right.’”

In a U.S. position paper for diplomats briefing their Southeast Asian counterparts on the policy shift, Washington stated that “China’s maritime claims pose the single greatest threat to the freedom of the seas in modern history.” The paper declared that the world “cannot afford to re-enter an era where states like China attempt to assert sovereignty over the seas,” in an apparent nod to the 17th-century “Battle of the Books” between scholars Hugo Grotius and John Selden. Grotius’s view on the “freedom of the seas”—free to all and belonging to none—generally prevailed over Selden’s argument for “closed seas.” These views constituted a foundational philosophy for UNCLOS.

Unsurprising, China condemned the U.S. policy shift. The PRC Foreign Ministry Spokesperson said that China “earnestly upholds international law including the UNCLOS.” He added, “We must tell Pompeo that the South China Sea is not Hawaii; the regional countries and all peace-loving people won’t stand by if several U.S. politicians attempt to muddy the waters.”

The new U.S. position also articulates specific implications for key land features in the South China Sea. The statement says that China cannot assert a maritime claim within areas that the tribunal found to be within the Philippines’s Exclusive Economic Zone (EEZ) or its continental shelf. Such Chinese claims would include any derived from Scarborough Reef (Mandarin: Huangyan Dao; Tagalog: Panatag Shoal) or the Spratly Islands. Citing the tribunal decision, the statement says China has “no lawful territorial or maritime claim” to either Mischief Reef (Mandarin: Meiji Jiao; Tagalog: Panganiban Reef) or Second Thomas Shoal (Mandarin: Ren’ai Jiao; Tagalog: Ayungin Shoal) in the Spratlys. Both features are within the EEZ off the Philippines off Palawan Island. The Philippines has occupied Second Thomas Shoal ever since the Philippine Navy intentionally grounded its transport ship BRP Sierra Madre on the reef in 1999.

However, China has occupied Mischief Reef since 1994, when China took advantage of a lull in Philippine maritime patrols and quickly erected a stilted structure. The Philippines protested the seizure, but Chinese forces remained. China began major land reclamation at the reef in 2014—about a year after the Philippines first filed the South China Sea arbitration at the Hague. Then-Commander of U.S. Pacific Fleet Admiral Harry Harris called China’s artificial island creation in the Spratlys a “great wall of sand.” China has turned the low-tide elevation of Mischief Reef into one of its most significant military bases in the Spratlys, “complete with radar domes, shelters for surface-to-air missiles and a runway long enough for fighter jets.”

Asserting that China has no territorial claim to Mischief Reef is a significant escalation of U.S. rhetoric. The new U.S. position also goes beyond the explicit conclusion of the 2016 tribunal decision, which only stated that that there was “no possible entitlement by China to any maritime zone in the area of either Mischief Reef or Second Thomas Shoal” (emphasis added) because both features are low-tide elevations located within the Philippine’s EEZ and continental shelf. The tribunal did not seek to resolve the sovereignty disputes over the features themselves.

The implications of this policy shift for Mischief Reef’s future are ambiguous. China’s recent militarization of the reef makes it exceedingly unlikely Beijing will relinquish the base to the Philippines. And the United States has conducted at least six operations near the features since 2017. Because the tribunal ruled Mischief Reef was a low-tide elevation that does not garner a territorial sea in itself, the frequent U.S. freedom of navigation operations (FONOPs) near the feature exercise “high seas freedoms” within 12 nautical miles of the base. Low-tide elevations can never garner territorial seas—whether under the jurisdiction of China, the Philippines, or any other state—so these “highs seas freedoms” FONOPs have already been serving as a challenge to Chinese assertions of sovereignty. Pompeo’s statement thus makes explicit what was already implied from the tribunal’s 2016 decision and subsequent U.S. naval operations.

Pompeo’s statement also rejects “any PRC maritime claim” that extends beyond the 12-nautical mile territorial seas of its claimed Spratly features. The statement identifies the waters surrounding Vietnam-administered Vanguard Bank (Vietnamese: Bãi Tư Chính; Mandarin: Wan’an Tan), Malaysia-administered Luconia Shoals (Malay: Raja Jarum/Patinggi Ali; Mandarin: Kang Ansha), Brunei’s EEZ and Indonesia-administered Natuna Besar. Pompeo says any “PRC action to harass other states’ fishing or hydrocarbon development in these waters” is unlawful. Chinese harassment has been particularly aggressive towards Malaysian and Vietnamese undersea oil and gas exploration in recent months. The statement also rejects China’s claim to James Shoal (Malay: Beting Serupai; Mandarin: Zengmu Ansha), a fully submerged feature 50 nautical miles from Malaysia that is a site for Malaysian hydrocarbon exploration. Beijing also claims the shoal is the “southernmost territory of China.” But UNCLOS considers a submerged feature to be part of the seabed and belonging to whoever owns the continental shelf underneath it—in this case, Malaysia.

Since the U.S. policy announcement, regional countries have largely been in tune with Pompeo. In a note verbale to the United Nations on July 29, Malaysia rejected any lawful basis for “China’s claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the ‘nine-dash line.’” Vietnam said it welcomed views on the South China Sea that followed international law, while Australia said it continued to support freedom of navigation in the area “very strongly.”

A Philippine presidential spokesperson took a softer line, saying the country would work with China and that “the Permanent Court of Arbitration ruling has no way of being enforced by the body which rendered it, so we must look to other means to resolve the dispute.” Later, Philippine President Rodrigo Duterte said there was little the Philippines could do because Beijing was already “in possession” of the disputed South China Sea. Duterte has allegedly blocked Philippine naval forces from conducting exercises with the U.S. military in the South China Sea. But the Philippine Navy will still participate in the upcoming 2020 Rim of the Pacific (RIMPAC) naval exercise off Hawaii from August 17 to 31.

Naval Operations in the South China Sea

While diplomats in Washington and Beijing drew lines in the sand, both countries engaged in significant naval activities in the South China Sea. A day after Pompeo’s July 13 policy announcement, USS Ralph Johnson (DDG 114) conducted a FONOP within 12 nautical miles of Cuarteron Reef (Malay: Terumbu Calderon; Mandarin: Huayang Jiao; Tagalog: Calderon Reef; Vietnamese: Bãi Châu Viên) and Fiery Cross Reef (Mandarin: Yongshu Jiao; Tagalog: Kagitingan Reef; Vietnamese: Đá Chữ Thập). China occupies both of these artificial islands in the Spratlys.

Earlier in July, the USS Nimitz and USS Ronald Reagan Carrier Strike Groups conducted dual carrier operations along with U.S. Air Force B-52s in the South China Sea. It was the first time two U.S. carriers operated together in the disputed waters since 2014. A Seventh Fleet press release said, “Together, the strike force was able to extend the reach of air superiority, and provide greater security throughout the region.”

In response, a Chinese Foreign Ministry spokesman asserted that the United States had “ulterior motives” and was “creating division among nations in the region and militarising the South China Sea.” Citing unnamed analysts, the Chinese Communist Party (CCP) mouthpiece Global Times stated that the “South China Sea is fully within the grasp of the Chinese People’s Liberation Army (PLA), and any US aircraft carrier movement in the region is solely at the pleasure of the PLA, which has a wide selection of anti-aircraft carrier weapons like the DF-21D and DF-26 ‘aircraft carrier killer’ missiles.” The U.S. Navy Chief of Information responded on Twitter: “And yet, there they are.” U.S. Secretary of Defense Mark Esper added that U.S. aircraft carriers are “not going to be stopped by anybody.”

During the same first week of July, China held large naval exercises near the Paracel Islands (Mandarin: Xisha Qundao; Vietnamese: Quần đảo Hoàng Sa) that simulated seizing contested islands. The PRC has occupied the Paracels since a naval battle in 1974 in which it expelled South Vietnam from the island group; Vietnam continues to claim sovereignty over the islands. Vietnam’s foreign ministry called China’s naval exercises “a violation of sovereignty that could harm Beijing’s relationship with the Association of Southeast Asian Nations” (ASEAN). Philippine Defense Secretary Delfin Lorenzana also characterized the exercises as “highly provocative.” A U.S. Defense Department statement similarly called the exercises part of China’s long-standing strategy

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