International Law and U.S. Policy in the South China Sea: A Marriage of Convenience?

October 9, 2020 by Digital Editor

Thunderstorms over the South China Sea (NASA)

By: Austin Lowe

Despite the paralyzing effects of the COVID-19 pandemic on federal government operations in recent months, the Trump administration has maintained its focus on upping the ante in its approach to China. While tougher rhetoric focused on China is par for the course in an election year, Secretary of State Mike Pompeo’s July statement regarding the U.S. position on China’s maritime claims in the South China Sea marks a significant evolution in U.S. policy in this area and could have lasting implications for the disputes in this region going forward. Pompeo’s invocation of the July 2016 international tribunal ruling finding most of such claims unlawful illustrates the uneasiness with which the United States approaches questions of international law, particularly in the context of China policy.

To be clear, the latest iteration of U.S. policy in the South China Sea does not include an articulation of the U.S. position on the competing sovereignty claims. Despite the U.S. interests in protecting freedom of navigation and open sea lanes in this area, as well as the peace and stability of the Indo-Pacific region writ large, the United States is not a claimant state in the disputes over maritime features in the South China Sea. The United States also did not formally endorse the 2016 ruling prior to Pompeo’s announcement in July.

Perhaps more significant, the Pompeo announcement was followed by the first-ever punitive actions against Chinese individuals and entities that the Administration alleges have engaged in China’s land reclamation and militarization efforts on the disputed features in the region. On August 26, the Department of Commerce added 24 Chinese companies to its Entity List, a tool that the Bureau of Industry and Security utilizes to restrict exports of U.S. goods and technology to persons involved in activities contrary to U.S. national security and foreign policy interests. That same day, the State Department announced the imposition of visa restrictions on unnamed individuals “responsible for, or complicit in, either the large-scale reclamation, construction, or militarization of disputed” features in the South China Sea.

The Commerce press release referred to “internationally condemned” artificial islands, and the State Department statement on visa restrictions made a vague reference to U.S. support for international law. Neither, however, focused much on the inconsistency of China’s claims with international law despite this serving as the long-held basis for U.S. policy on the South China Sea. Pompeo’s July statement endorsing the 2016 ruling also does not change the fact that the United States has yet to ratify the United Nations Convention on the Law of the Sea (LOS Convention), the underlying treaty and basis under which the Philippines brought case against China to arbitration in 2013.

What, then, is the significance of the rather late endorsement of the 2016 ruling by the current administration? Not much, given that the United States already embraces much of the LOS Convention as legally binding customary international law. As some commentators have noted, the invocation of the 2016 ruling does not provide the Executive Branch with any new legal authority to take additional punitive actions against China. And given Pompeo’s seemingly inconsistent attitude toward international legal regimes, it could be perceived as nothing more than an opportunistic rhetorical flourish.

Recent developments, however, might suggest otherwise. Although U.S. allies and partners have in many instances expressed dismay at the Trump administration’s penchant for unilateralism, the recent actions taken by the United States may have inspired similar rhetoric on the part of European allies. The submission of a joint Note Verbale by France, Germany, and the United Kingdom in September—an unprecedented move to date—suggest that the more formal U.S. endorsement of the 2016 ruling bolstered the willingness among the so-called E3 to confront China through multilateral diplomatic channels. Although the Note does not explicitly reference any recent activity by China in the region, the timing of the submission followed reports of increased activity by the Chinese military.

Senior officials at a ministerial meeting of the Association of Southeast Asian Nations (ASEAN) last month also responded in kind, with the meeting’s joint communique referencing concerns around “land reclamations, activities, and serious incidents in the [South China Sea]”—though it fell short of expressly attributing such behavior to China. The Foreign Ministers’ Meeting was preceded by Chinese Minister of Defense Wei Fenghe’s visits to multiple Southeast Asian capitals, part of China’s ongoing efforts to prevent a unified front on this issue within ASEAN—four members of which are claimant states in the disputes.

Regardless of the Trump administration’s motivation or the lack of concrete legal consequences, a U.S. policy on the South China Sea that expressly aligns itself with the Permanent Court of Arbitration’s 2016 ruling could sow the seeds for a more united coalition of like-minded countries with interests in the South China Sea and ultimately pressure China to cease its unlawful activity. Senior advisors to U.S. presidential candidate Joe Biden have suggested that elements of Trump’s tougher approach to China would be maintained under a Biden administration, but would involve more of a focus on confronting shared challenges among U.S. allies and partners. The invocation of international law could serve as a rallying cry in this regard. A second Trump term, meanwhile, might see an uptick in U.S. military exercises in the region or additional sanctions on Chinese entities, but the newly articulated policy at the very least suggests some degree of adherence to multilateralism in this area.

Austin Lowe is a 2L student and co-president of the Global Law Scholars program. He previously worked at the DC-based strategic advisory firm The Asia Group and has prior experience working on South China Sea issues at the State Department. He currently serves as a teaching assistant to Professor Yvonne Tew for Constitutional Law I: The Federal System and is also a staff editor for the Georgetown Journal of International Law.