3.4 Official Position by the U.S.
As a non-claimant party to the dispute, the U.S. does not assert any territorial or maritime claims in the SCS. Regardless, it plays a crucial role therein not least as the region borders three core U.S. treaty allies (South Korea, Philippines and Japan) and partners (Vietnam, Indonesia). Therefore, a glance at the SCS approach of the U.S. is inevitable. The official U.S. stance toward the SCS entails several elements and dimensions. Against the background of a statement by the U.S. State Department in 1995, official U.S. policy on the SCS can be summarized as follows:
- peaceful dispute resolution,
- peace and stability,
- freedom of navigation,
- neutrality,
- respect of maritime norms (incl. UNCLOS) (U.S. Gvt., 1995).
[83] Other elements of U.S. policy include the support for a code of conduct and a transparent and clear articulation of claims on the side of the claimant parties. In this context, the aspect of neutrality is particularly interesting. Neutrality had traditionally included a neutral stance regarding the claimant parties’ positions regarding issues of territorial sovereignty and maritime jurisdiction (Fravel, 2014; U.S. Gvt., 1995). However, despite its neutrality principle several official statements and documents illustrate the strategic significance that the U.S. attaches to the SCS. More specifically, official U.S. policy underwent slight changes as of the second half of 2012. In an official statement by the U.S. State Department on August 3, 2012, China was explicitly singled out for the first time. Instead of merely referring to general principles, as had been the case in past statements by the U.S. government, China was directly criticized for its behavior around Scarborough Shoal in April 2012. As a consequence, this statement marked the first shift away from total neutrality toward a more active interest and involvement. On February 5, 2014, the U.S. government delivered another detailed policy statement. During congressional hearings on the U.S. ‘pivot to Asia’ strategy, Daniel Russel, former Assistant Secretary of State for East Asia and the Pacific, directly expressed concern about a number of activities by the PRC in the SCS and also about Chinese SCS claims; other SCS claimant parties were not referred to as contributing to instability and tensions. Moreover, Russel clarified that in line with customary international law “all maritime claims must be derived from land features and otherwise comport with the international law of the sea”. In doing so, he deemed “any use of the ‘nine-dashed line’ by China to claim maritime rights not based on claimed land features would be inconsistent with international law”. Ultimately, Russel expressed U.S. support for the Philippine decision to initiate compulsory legal arbitration proceedings against the PRC (Russel, 2014, para. 1). Further documents demonstrating an abandonment of unconditional neutrality and mere utilization of general principles are the 2017 ‘Free and Open Indo-Pacific Strategy’ promoted by the Trump administration113 as well as the 2013 and 2015 ‘Asia-Pacific Maritime Security Strategy’ documents. To exemplify, the 2013 version identifies regional stability in the SCS as one of Washington’s core objectives. Moreover, its overall SCS stance is delineated as follows:
“In the South China Sea, we urge all parties to pursue peaceful means of resolving their disputes, which includes diplomacy as well as third-party dispute settlement, such as the Philippines’ submission of its claims for arbitration in accordance with the dispute resolution procedures in the Law of the Sea Convention. We also urge all parties to take action to [84] implement the Declaration on the Conduct of Parties in the South China Sea (DoC) and take steps toward early conclusion of a meaningful Code of Conduct (CoC), which would provide agreed upon rules of the road to reduce tension among claimant States“ (U.S. Gvt., 2013a, p. 6).
As this text segment depicts, multilateral approaches with the purpose of generating stability have been given a higher priority than fully-fledged conflict settlement itself. Washington’s support for a Binding Code of Conduct (BCoC) in the SCS serves as an example thereof. In addition, economic interests, including open access to the region’s maritime commons, are repeatedly listed as vested U.S. interests:
“[T]he SCS contain(s) potentially significant oil and gas exploration areas.18 Exploration activities there could potentially involve U.S. firms. The results of exploration activities there could eventually affect world oil prices“ (Dolven et al., 2018, p. 6).
Moreover, the 2015 version of its Asia-Pacific Maritime Security Strategy, emphasizes the significance of freedom of commerce and navigation in the SCS as it does the rule of law:
“The United States has, throughout its history, advocated for the freedom of the seas for economic and security reasons […]. Freedom of the seas, however, includes more than the mere freedom of commercial vessels to transit through international waterways. While not a defined term under international law, the Department uses ‘freedom of the seas’ to mean all of the rights, freedoms, and lawful uses of the sea and airspace, including for military ships and aircraft, recognized under international law. Freedom of the seas is thus also essential to ensure access in the event of a crisis“ (U.S. Gvt., 2015b, pp. 1–2).
In so doing, the U.S. definition of freedom of navigation and rights to evolve from an EEZ deviates from the one put forward by the PRC. This particularly applies to the concept of innocent passage in a coastal state’s EEZ and the question as to whether or not innocent passage also applies to military vessels and airplanes (chapters 4.2, 4.3; also cf. O’Rourke, 2017). Moreover, even though the U.S. does not assert any claim to territorial sovereignty or maritime rights itself, it is subject to heated debate to what extent the U.S. actually constitutes a neutral stakeholder given its openly articulated interests as well as its partnerships and alliances with direct claimant parties to the SCS (chapter 4.2.1.2). Neutrality is further questioned due to the significant U.S. military footprint in the SCS region and the scope of its military, economic and political involvement at large. Similarly, the U.S. is directly challenging China’s role in the SCS. This is underscored by a range of official documents such as the ‘Annual Report to Congress. Military and Security Developments Involving the PRC 2017’ and the 2017 National Security Strategy. In the latter, the U.S. is considered to be severely challenged by the “revisionist powers of China”
[85] (U.S. Gvt., 2017a, p. 25) and its SCS conduct114:
“China seeks to displace the United States in the Indo-Pacific region“ (U.S. Gvt., 2017a, p. 25).
Overall, the U.S. has a keen interest in the SCS and pursues a balancing SCS strategy between overall neutrality, multilateral conflict management and risk prevention. At the same time, it gives prominence to its regional allies and partners and their security while seeking to effectively deal with the growing regional role, capacities and objectives of China at the same time. As such, the overall approach toward the SCS needs to be viewed in the context of the so-called ‘U.S. rebalancing to Asia’ strategy proclaimed by former U.S. President Obama in 2011 (chapter 4.3.1.3). Hence, the U.S., despite being a non-claimant state, constitutes a key actor, which is capable of projecting military power in Southeast Asia and without which the SCS dispute cannot be effectively managed.
3.5 Official Position by the ASEAN
In general, the 10 Member States of the Association of Southeast Asian Nations (ASEAN), a regional organization in South East Asia, hold diverging points of view in regard to the SCS dispute. The majority thereof are non-claimant parties to the dispute; only Vietnam, the Philippines, Malaysia and Brunei epitomize claimant ones. Due to its intergovernmental character and its endorsement of Southeast Asian norms such as consultation, decision-making by consent, and non-interference, ASEAN can only take common denominator decisions. That said, in recent years115, claimant states like the Philippines and Vietnam have repeatedly made strong efforts to place their individual SCS claims on the ASEAN’s collective political agenda and to jointly criticize Chinese SCS behavior in order to give additional weight to their individual points of view and bargaining position, respectively. Those attempts were frequently met with strong reservations by other states, also due to their significant economic ties with and dependencies on China. Hence,