The following is an excerpt from Remarks of Assistant Secretary Daniel Russel (Bureau of East Asian and Pacific Affairs, U.S. State Department) at “Looking East-Trend Lines in the Asia Pacific” at Hertie School of Governance in Berlin on March 22, 2016. In this excerpt, Russel discussed about the South China Sea situation, China’s militarization in the South China Sea, and implications of the arbitration between Philippines and China.
So maybe this is a good time to just spend a few minutes on that thorny issue, the South China Sea, because it is really a very important one, and it is every bit as important to the countries of the Atlantic as it is to the countries who border on the South China Sea itself, and I’ll explain why.
Now, I said a minute ago that anybody who dreamed up a new system for dealing with international problems would want to have in place some basic agreements and some arbitration mechanisms for dealing with problems and disputes that couldn’t be hashed out bilaterally.
One example of that is the 2002 Declaration of Conduct that China and the ten ASEAN countries negotiated over 13 years ago, in response to an escalating pattern of confrontation in the South China Sea. This was in the years following China’s occupation of Mischief Reef and some very bloody and very brutal encounters that cost the lives of a lot of Vietnamese sailors and soldiers.
So in this 2002 Declaration, the countries, 11 countries, pledged not to use coercion, not to use force, not to use the threat of force. And they pledged further to exercise self-restraint in terms of activities and avoiding activities that would complicate or would escalate disputes, that would affect peace and stability. That was a solemn pledge that frankly, helped maintain calm and the status quo there for quite a few years.
But what we’ve seen is that the status quo has been up-ended by an unprecedented campaign of digging up the coral reefs, dredging the sand from the ocean floor, reclaiming land on submerged reefs, building military facilities, large-scale construction there. And claims of national control over international waters. Over international airspace. And over the disputed maritime areas of claims in the South China Sea.
So it is absolutely true that in the course of the decade or so after the Declaration of Conduct was issued there have been cases where claimants have at times put military personnel or weapons on the outposts that they occupy. Nobody ever made a new outpost, nobody ever seized an outpost, nobody ever did anything on a large scale. But it is correct to say that others have built breakwaters or in a few cases small runways, and this was not a good thing.
But in under two years, despite the very strong objections of all of the other claimants and most of its neighbors, China has chosen to build seven advanced outposts on top of these fragile coral reefs using thousands of acres of landfill and tons of concrete with state-of-the-art ports and runways and other significant military facilities. The scale and the scope of this campaign vastly outstrips what all other claimants in the proceeding decade combined have done.
So the question is why? Particularly in light of its pledge not to militarize its outposts.
Is this to protect civilian populations? I’ve heard that. But these features are uninhabited. I mean they’re basically uninhabited features other than the personnel the government puts there.
Is it to assist fishermen in need? I’ve heard that argument too. But why now? People have been fishing there for generations. And why are Philippine fishermen and fishing boats chased away? Why are Malaysian and Vietnamese fishing boats chased away? These are their traditional fishing grounds, too.
Are these outposts there to monitor the weather? That’s another argument I’ve heard. Well, last time I looked, surface-to-air missiles were not categorized as meteorological equipment.
Is it to conduct humanitarian relief missions? Well, one point is that all the countries in the region have put together a collaborative mechanism for cooperating on humanitarian relief and coordinating it. For one country unilaterally to tackle that seems inconsistent with the collective work of the region. But even if you set that aside, why build a 3,000-meter runway on three different military airfields in the middle of nowhere?
Another argument I’ve heard is to safeguard freedom of navigation. But it’s pretty hard to argue that you’re safeguarding freedom of navigation when your military radio operators challenge a ship or a plane from a neighboring country and say hey, you’ve got to get out of here, even though it’s international space.
So we’re faced with a real paradox, a conundrum here. But in the coming months, the tribunal, an arbitration tribunal that has been convened under the Law of the Sea Convention which is a treaty that all of the claimants in the Asia-Pacific region have both signed and ratified, this tribunal is expected to make a decision on a case that was brought by the Philippines.
Now this case addresses some very specific issues. It does not address the question of which island belongs to whom, which claimant owns what island. That’s not what this case is about. And whether it is the United States or whether it’s Germany, no outside country, no third party takes a position on the question of sovereignty over the land features in the South China Sea. We don’t say we think the Philippines has a better claim than China or China has a better claim than Vietnam. We stay out of that piece.
What the tribunal will do is to make some important decisions about the maritime space, not the land, but the sea — and some important decisions about the rights that claimants have to the sea.
But regardless of how this tribunal ultimately rules, I’d say there are three important things to note here. Number one, the decision will be binding on both China and the Philippines. Those are the two countries, the two states, parties to the treaty, that are subject to this arbitration.
I should add that the Chinese flagged early on their view that the tribunal had no jurisdiction over this case. So in reviewing the question of whether in fact the tribunal had jurisdiction or not under the Law of the Sea Convention, whether it could hear the Philippines’ case, the judges who are designated by the tribunal under the treaty to make that decision reviewed a very lengthy legal position paper that China submitted.
They considered all the arguments. And they issued their decision. And their decision as the judges was that they rejected the Chinese arguments and found that the court did have jurisdiction over this particular case.
So China has had its day in court already on the issue of jurisdiction. The question of how the tribunal will find on the maritime entitlements won’t be answered for another few months.
The second point I’d flag about this case is that it could significantly narrow the geographic area of the maritime space that’s in dispute. In other words, shrink the areas of disputed water among not only China and the Philippines, but presumably the other claimants as well.
And thirdly and more importantly, I think that this verdict can serve as a pivot point, as a launching pad for a very positive, constructive diplomatic process towards a modus vivendi, towards a new arrangement that would reduce tensions and that would open the door to cooperation.
Another way of looking at it is this, that the ruling in this case under the Law of the Sea Treaty is going to be an important test of our collective efforts to uphold a rules-based system in East Asia, a system that protects the rights of all states, and a system that continues to underpin the region’s success.
So in that respect, even though Germany and the rest of Europe aren’t on the Pacific, and like the United States have no stake in who gets what island, we don’t take a position on that.
We do have a stake in the success of the effort to apply the rule of law. And it’s very important that in this regard everybody’s voice, including European voices, be heard in support of the rule of law, in support of peaceful resolution of disputes.
Read the full remarks at http://www.state.gov/p/eap/rls/rm/2016/03/255135.htm