Secretary of State Mike Pompeo’s South China Sea statement on Monday is significant for two reasons: It shifts formal U.S. policy and it establishes a quiet jus ad bellum legal foundation for the use of military force against China in these waters.
Let’s start with the shift in U.S. policy. When the United States had previously condemned Chinese claims in the South China Sea, it had also called for regional negotiation to establish territorial ownership rights. This statement endorses a different approach, actively rejecting Chinese claims outright.
“Beijing’s claims to offshore resources across most of the South China Sea are completely unlawful,” the statement said, “as is its campaign of bullying to control them.”
This includes, Pompeo said, the assertion that “Beijing’s harassment of Philippine fisheries and offshore energy development within those areas is unlawful, as are any unilateral [Chinese] actions to exploit those resources.” The U.S. now takes the same stance toward the “Vanguard Bank (off Vietnam), Luconia Shoals (off Malaysia), waters in Brunei’s [exclusive economic zone], and Natuna Besar (off Indonesia). Any [Chinese] action to harass other states’ fishing or hydrocarbon development in these waters — or to carry out such activities unilaterally — is unlawful.”
There’s a deliberate disdain in the U.S. language here. The Trump administration isn’t simply rejecting China’s claims. It is suggesting that other regional nations have far better rights to the waters in question. Pompeo wants to impress the idea not simply of China’s claims being unlawful in legal terms but also absurd in practical reality. We see this with his assertion that China has “no lawful territorial or maritime claim to (or derived from) James Shoal, an entirely submerged feature only 50 nautical miles from Malaysia and some 1,000 nautical miles from China’s coast.” Fifty nautical miles versus 1,000 nautical miles.
That said, a more hawkish line that “China’s maritime claims pose the single greatest threat to the freedom of the seas in modern history” appears to have been removed from the final draft. The Wall Street Journal reported that the line was in an early draft. The removal likely reflects concerns that its inclusion would lead to the impression that the U.S. believes China’s claims are more dangerous than those of 1930s Imperial Japan. (I would suggest they are equally dangerous.)
The jus ad bellum legal case here is even more significant.
Identifying the legal basis for rejecting China’s claims and concluding with a commitment that “America stands with our Southeast Asian allies and partners in protecting their sovereign rights,” the Trump administration is establishing the justifying authority and cause for the prospective use of military force — stages one and two, that is to say, under the general understanding of just war theory in international law. This is not to say that Trump and Pompeo seek war in the South China Sea. But the choice of language here, “unlawful,” “unprecedented threat,” “sovereign rights,” “will not allow Beijing,” will raise eyebrows in foreign ministries the world over and must be considered to have been designed as such.
Neither China nor the U.S. seeks a South China Sea conflict. But as I noted last week, the risks of such a conflict occurring are growing faster than is commonly assumed. Centered amid a broader environment of U.S.-China hostility over the coronavirus, Hong Kong, human rights, trade policy, and cyberactivity, the risk of near-term conflict should not be underestimated. As I say, this is a significant statement.
