Thayer Consultancy Background Brief:

ABN # 65 648 097 123

South China Sea: Will New U.S.
Policy Have Any Effect?
Carlyle A. Thayer
July 20, 2020

We request your assessment of the new U..S policy on the South China Sea.
Here are our questions:
Q1. - What is the difference between the new U.S. South China Sea policy and previous
U.S. policy?
ANSWER: Previously, the United States declared it was neutral with respect to
maritime disputes in the South China Sea and that it would “fly or sail where ever
international law allows” that is, conduct freedom of navigation operational patrols
and overflight. Last year when Vietnam was confronting Chinese ships at Vanguard
Bank, Vietnam called for support of the international community. The U.S. responded
almost immediately condemning Chinese intimidation and bullying to deprive littoral
states legitimate access to hydrocarbons (oil and gas) in their Exclusive Economic
Zone.
The new U.S. policy position is to support the Award of Arbitral Tribunal in the case
brought by the Philippines against China. Secretary of State Mike Pompeo declared,
“the Arbitral Trubi9nal’s decision is final and legally binding on both parties.”
The Arbitral Tribunal was set up under Annex VII of the United Nations Convention on
the Law of the Sea (UNCLOS). The Tribunal ruled that China’s claim to historic rights
had been superseded by UNCLOS, China’s nine-dash line had no basis in international
law, China could not draw straight base lines around the Spratly islands, and that no
land feature in the Spratlys was an island entitled to a two hundred nautical mile
Exclusive Economic Zone.
As a result, the United States argued that “Beijing’s claims to offshore resources across
most of the South China Sea are completely unlawful.” Further, the U.S. argued that
China” has no legal grounds to unilaterally impose it will in the region.”
To drive home its legal argument, Secretary Pompeo specifically identified areas that
China could not claim under international law. He stated, for example, “China cannot
lawfully assert maritime claims…from Scarborough Reef and the Spratly islands.”
Finally, Secretary Pompeo identified features in all the littoral states where China had
“no lawful territorial or maritime claim.” These included the Philippines’ Mischief Reef
and Second Thomas Shoal, Vietnam’s Vanguard Bank, Malaysia’s Luconia Shoals and
James Shoal, Brunei’s EEZ, and Indonesia’s Natuna Besar.
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Q2. - How meaningful is this U.S. position to other claimants in the South China Sea?
ANSWER: Since December 2019, when Malaysia made a claim for an extended
continental shelf to the Commission on the Limits of the Continental Shelf (CLCS)
based on the Arbitral Tribunal Award, the Philippines, Vietnam and Indonesia all
submitted Notes Verbales making legal arguments based on the decision of the
Arbitral Tribunal. Brunei has been silent.
For the first time four littoral states, three claimants plus Indonesia, have a common
position. This was revealed in the Chairman’s Statement of the 36th ASEAN Summit
that declared, “We reaffirmed that the 1982 UNCLOS is the basis for determining
maritime entitlements, sovereign rights, jurisdiction and legitimate interests over
maritime zones, and the 1982 UNCLOS sets out the legal framework within which all
activities in the oceans and seas must be carried out.”
Secretary Pompeo said that “America stands with our Southeast Asian allies and
partners in protecting their sovereign rights to offshore resources… We stand with the
international community in defence of freedom of the seas…”
The new U.S. policy position must be viewed as a work in progress. Vietnam and other
littoral states will need to find out from the U.S. what does “stand by” mean. At the
moment it appears that the U.S. will give political and diplomatic support to ASEAN
and the littoral states. The U.S. position may lead other countries to lend their
diplomatic support. India declared the South China Sea a “global commons.” Australia,
however, has not yet aligned its policy with that of the United States.
Q3.- How can you suggest likely U.S. activities in the region after announcing its new
policy?
ANSWER: Late last year the Malaysia state-owned oil company Petronas contracted
the West Capella, a drill ship, to conduct operations off Sarawak. The West Capella
and its service ships were continually harassed by Chinese vessels. In April, China
dispatched the Hai Yang Dizhi 8, a survey ship, with several escort vessels, to conduct
an illegal survey of Malaysia’s continental shelf.
On 18 April, the United States unilaterally responded by dispatching the USS Bunker
Hill, a guided missile cruiser, and the USS America, an amphibious assault ship, to the
area to monitor the situation. After a few days the U.S. and Chinese ships left the area
without incident.
There are three possibilities if China resumes harassment of littoral states and their oil
exploration activities. The first possibility is that the United State only provides
diplomatic support in the form of verbal and/or written statements. The second
possibility is that the United States undertakes unilateral action to show its support
for the littoral state. The third possibility is that the littoral state and the United States
agree to take joint action to push back against China. This possibility is least likely
because all littoral states would be concerned about China’s response affecting their
interests.

Suggested citation: Carlyle A. Thayer, “South China Sea: Will New U.S. Policy Have Any
Effect?” Thayer Consultancy Background Brief, July 20, 2020. All background briefs are
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Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in 2002.