In particular, Trump’s emphasis on ‘America First’ worried many. It did not sound inclusive, and was not reassuring to allies dealing with the security implications of China’s rise. Will unilateralism serve US interests in the South China Sea?
The South China Sea issue is both an opportunity and a challenge to Trump’s promise to make America great again. The US could use the South China Sea case to demonstrate its commitment to a stable, rules-based international maritime order. This means honouring the Permanent Court of Arbitration’s 2016 ruling and not recognising Chinese-imposed restrictions on navigation in the sea.
Alternatively, Washington could fold to Chinese pressure, exempt Beijing from established international maritime rules and norms and consequently cede leadership to China in maritime Southeast Asia. This would mean that what applies to the Mediterranean Sea, the Gulf of Mexico, the Sea of Japan and all other maritime zones of the world would not apply to the South China Sea, which would effectively become a Chinese lake.
The choice could not be clearer.
International law is only as good as its enforcement. The United Nations Convention on the Law of the Sea (UNCLOS) is perhaps the fairest international law of all. It provides the same entitlements to all coastal states, regardless of economic size, military prowess or international political influence. The July 2016 ruling, which the US has insisted is binding, needs enforcement for the South China Sea to remain a rules-based international waterway.
As Trump formulates his administration’s Asia policy, the South China Sea will remain high on the agenda. During his first overseas trip as Secretary of Defense, James Mattis said that ‘freedom of navigation is absolute, and whether it be commercial shipping or our US Navy, we will practice in international waters and transit international waters as appropriate’. Many perceived the statement as measured and well-calibrated. But his words had echoes of the US unilateralist approach.
This was the case when Secretary of State Rex Tillerson floated the idea of physically blocking China’s access to its artificial islands in the South China Sea during his confirmation hearing. There was no mention of working with partners, allies and the international community at large in upholding the rule of law.
While unilateral US Navy freedom of navigation operations (FONOPs) should continue, including in waters surrounding Chinese-built artificial islands, Washington should establish another mechanism that engages its treaty allies and partners in the Pacific on freedom of navigation issues: bilateral and multilateral freedom of navigation patrols. In essence, Washington should institute another instrument that involves allies and regional partners that not only challenges excessive maritime entitlement claims, but also reinforces the rule of law in other areas that could be subject to new and illegal restrictions by any state in the future.
Australia and the Philippines are ideal partners for bilateral or trilateral FON patrols. Canberra has been conducting overflight exercises in the South China Sea since the 1970s and its involvement should not be too surprising to the Chinese. Manila is a direct claimant and a US treaty ally. In early 2016, a joint patrol was integrated as one manifestation of the long overdue US–Philippines Enhanced Defense Cooperation Agreement forged in 2014. But the Duterte government decided to end this cooperation.
A clearer US commitment to defend Philippine vessels in the South China Sea, as per Article 5 of the 1951 US–Philippines Mutual Defense Treaty, could encourage an increasingly unpredictable Manila to begin to trust Washington again. The transition from the Obama to the Trump administration provides an opportunity to reset relations between the two allies.
Moreover, a multilateral mechanism could coordinate multi-party FON patrols, not just in the South China Sea, but in all of East Asia’s maritime commons. The mechanism should be open to China to avoid any misconception of ‘containment’ or of the US and its allies ‘ganging up’ on Beijing. The US could propose this to the ASEAN Regional Forum or any ASEAN dialogue as a confidence-building measure in the maritime Asia Pacific, with the goal of maintaining open, secure and unimpeded access to East Asia’s maritime commons without prejudice to any sovereignty claims.
The first such exercise could begin in the Sea of Japan, then move south to the East China Sea, passing through the Luzon Strait towards the South China Sea, exiting through the Malacca Strait and then to the Indian Ocean or vice versa. The guiding mechanism should be relevant provisions of UNCLOS — nothing else.
China could complain, but if many countries are involved the pressure for compliance will be greater. If FON exercises, including FONOPs, are conducted only unilaterally by the US Navy, the South China Sea issue could easily spiral into a great-power struggle and the importance and essence of the rule of law will be sidestepped.
Since respect for international law in East Asia’s maritime commons is a vital US national interest, Washington should take the lead and engage East Asia. Unilateralism can only do so much.
Jeffrey Ordaniel is a resident Vasey fellow at the Pacific Forum Centre for Strategic and International Studies, Honolulu and PhD candidate at the Graduate Institute for Policy Studies, Tokyo.
It is admittedly only 4 weeks since Trump was inaugurated. But the record up to now has been one where the right hand does not seem to know what the left hand is doing. The contradictory statements by Mattis vs Tillerson is one example. Another is the development and roll out of the so called travel ban against people from 7 Muslim majority nations.
If Trump cannot/will not bother to coordinate actions within his own administration, how will he do so with other countries as proposed by this author? Does he even see the potential benefits of doing this kind of thing?
1 “The US could use the South China Sea case to demonstrate its commitment to a stable, rules-based international maritime order.”
Yes, only after the US Senate ratifies the UN Convention on the Law of the Sea (Unclos).
How is it possible for the US to commit “to a stable, rules-based international maritime order” when it does not even recognize the provisions in Unclos and the US Navy can sail anywhere it wants?
2 “This means honouring the Permanent Court of Arbitration’s 2016 ruling..”
This shows the author’s misunderstanding of the mission of the Permanent Court of Arbitration (PCA) at the Hague.
Despite its legal sounding name the PCA is not even a court. It only provides a registry and secretarial assistance to “arbitral tribunals constituted to resolve specific disputes” for a large fee.
Also, the PCA did not make the ruling on 12 July 2016. The ruling was made by an ad hoc arbitral tribunal, constituted under Annex VII of Unclos.
UN spokesman Stephane Dujarric confirmed that the PCA “has nothing to do with the UN”. He added: “The UN doesn’t have a position on the legal and procedural merits of the South China Sea arbitration case.”
3 “The United Nations Convention on the Law of the Sea (UNCLOS) is perhaps the fairest international law of all.”
So what is stopping the US Senate from ratifying Unclos since 1982?
4 “But the Duterte government decided to end this cooperation.”
He wants a settlement through peaceful negotiation and consultation, like the other three claimants: Vietnam, Malaysia and Brunei.
5 “If FON exercises, including FONOPs, are conducted only unilaterally by the US Navy, the South China Sea issue could easily spiral into a great-power struggle and the importance and essence of the rule of law will be sidestepped.”
The rule of law has already been sidestepped since the US has persistently refused to ratify Unclos, while China did in 1996.
Also there are no restrictions to FON as over 200,000 seaborne vessels have sailed through the South China Sea in recent times without a single FON incident.
China is also committed to FON in the South China Sea as the success of her multi-billion dollar Maritime Silk Road initiative vitally depends on it.
Yes, only after the US Senate ratifies the UN Convention on the Law of the Sea (Unclos).— No Sir! The US has said time and again, that it is committed to customary international law, as reflected in UNCLOS.
How is it possible for the US to commit “to a stable, rules-based international maritime order” when it does not even recognize the provisions in Unclos and the US Navy can sail anywhere it wants?— It recognizes UNCLOS provisions. Check State Department website. Non-ratification does not equal non-recognition.
2 “This means honouring the Permanent Court of Arbitration’s 2016 ruling..”
Despite its legal sounding name the PCA is not even a court. It only provides a registry and secretarial assistance to “arbitral tribunals constituted to resolve specific disputes” for a large fee.—- emphasis on the large fee? As if it is some Chinese courts that can be bribed!
Also, the PCA did not make the ruling on 12 July 2016. The ruling was made by an ad hoc arbitral tribunal, constituted under Annex VII of Unclos.
UN spokesman Stephane Dujarric confirmed that the PCA “has nothing to do with the UN”. He added: “The UN doesn’t have a position on the legal and procedural merits of the South China Sea arbitration case.” ———-Of course it has nothing to do with those. The fact of the matter is, China’s nine-dash line map has NO BASIS WHATSOEVER under international law. And the Arbitral Tribunal duly constituted as provided for by UNCLOS, which CHINA HAS ratified, HAS DECIDED that CHINA HAS no basis for its nine dash-line map!
3 “The United Nations Convention on the Law of the Sea (UNCLOS) is perhaps the fairest international law of all.”
So what is stopping the US Senate from ratifying Unclos since 1982?——— Oh please, if you are indeed curious about this, GOOGLE it! It’s all over the internet.
4 “But the Duterte government decided to end this cooperation.”
He wants a settlement through peaceful negotiation and consultation, like the other three claimants: Vietnam, Malaysia and Brunei. ——- And you believe this?
5 “If FON exercises, including FONOPs, are conducted only unilaterally by the US Navy, the South China Sea issue could easily spiral into a great-power struggle and the importance and essence of the rule of law will be sidestepped.”
The rule of law has already been sidestepped since the US has persistently refused to ratify Unclos, while China did in 1996. ———– and yet still believing that the SOuth China Sea is under its jurisdiction? On what account? Fake history?
Also there are no restrictions to FON as over 200,000 seaborne vessels have sailed through the South China Sea in recent times without a single FON incident.
China is also committed to FON in the South China Sea as the success of her multi-billion dollar Maritime Silk Road initiative vitally depends on it.—– Being committed to FON means no new restrictions – commercial or military, FON is guaranteed under international law. Why do Aussies and Americans keep getting the “this is Chinese Military Alert Zone” bla bla as soon as the FAKE islands were built?