Who is the Rogue State in the South China Sea?

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by Mark J. Valencia

The term rogue state was coined by the United States to condemn states that violated the post-World War II international order which it led and helped build to its advantage. In 1994, Bill Clinton’s National Security Advisor Tony Lake singled out Cuba, Iran, Iraq, Libya, and North Korea as rogue states. To qualify as “rogue,” a state had to be trying to obtain weapons of mass destruction, support “terrorism” and suppress the human rights of its citizens. The U.S. State Department supposedly officially stopped using the term in 2000. But now U.S. Secretary of State Mike Pompeo has revived the use of the term and applied it to China. 

Among China’s alleged international sins are its policies and actions in the South China Sea. Pompeo alleged that China is “militarizing” the Sea, illegally claiming maritime space and resources, bullying rival claimants and threatening freedom of navigation. There is some truth to some of these allegations—at least from the U.S. government’s perspective. But if China is a “rogue” state actor in the South China Sea, it is not the only one. Indeed, the United States has also engaged in rampant violations of the international order—including that in the South China Sea.

The ‘international order’ was—and still is—centered on enabling U.S. grand strategy, the rules-based free trade system, a hub and spoke military alliance system with the United States as the hub, multilateral cooperation, its interpretation of international law and the proselytizing of democracy and other American “values.”

Indeed, the United States seems to equate challenges to this “international order” with challenges to its own principles, norms and values and thus considers such challenges an attack on its primacy and legitimacy. Naturally, it defends and wants to strengthen the existing status quo in which it is the dominant actor and patron.

But ironically, the capricious manner in “which U.S. President Donald Trump has denounced treaties and international agreements has significantly diminished the United States’ credibility as a central partner in the management of international affairs.”

Indeed, under Trump and Pompeo, the United States has dramatically undermined the existing international order and the concept of international community. It has alienated many allies and friends and politically undermined NATO. It has refused to join the International Criminal Court and tried to obstruct the court’s investigations against the U.S. military for war crimes in Afghanistan by banning entry and sanctioning its senior officials. It withdrew from the Paris climate accords, the Trans-Pacific Partnership, the Intermediate-Range Nuclear Forces Treaty and the Iran nuclear treaty. More dangerous, in China’s eyes it has pushed the limits if not violated its understandings with China regarding Taiwan. Moreover, it often appears to violate the UN Charter by threatening and even using force—like in Iraq—to achieve its international political objectives.

Regarding the South China Sea, the United States refuses to ratify the UN Convention on the Law of the Sea (UNCLOS), yet severely criticizes China—a ratifier—for violating it. This raises the question of which is worse: ratifying a treaty and not abiding by some of its provisions—a common occurrence regarding UNCLOS—or not ratifying it, interpreting some of its provisions to one’s own advantage, and even enforcing its own interpretation with a threat of use of force. The latter is rare considering that the United States is the only major power that has not ratified the treaty. But that is what the United States is doing—especially with its Freedom of Navigation Operations challenging China’s claims in the South China Sea.

Pompeo has now asserted that the United States “opposes any attempt to use coercion or force to settle disputes” or to “make might right.” But this proclamation came on the heels of the U.S. deployment to the South China Sea of two its most iconic symbols of might, aircraft carrier strike groups and a nuclear-capable bomber, operating together.

This was an implied threat to use force to achieve its political objectives. According to U.S. Deputy Assistant Secretary of Defense Chad Sbragia, “Our leadership has called repeatedly on the Chinese to limit the activities of what they’re doing. As a result, we have increased our military operations and activities in the South China Sea.”

It is not surprising that the United States and China have starkly different interpretations of how the “rules” apply in the South China Sea. Indeed, these different interpretations reflect diverging fundamental strategic core interests. For example, the United States accuses China of “militarizing” the South China Sea. But “militarization” means different things to China and to the United States. To China, its emplacement of “defensive weapons” on its own territory does not constitute “militarization” but is an exercise of the right of self-defense as enshrined in the UN Charter. In China’s view, the United States has clearly “militarized” and continues to “militarize” the region with its forward-deployed troops, assets and patrols.

While the United States has criticized China for not adhering to the arbitration panel’s legally binding decision, the United States is hardly a paragon of virtue in such matters. When in 1986 the International Court of Justice determined that the United States had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua’s harbors, the United States refused to abide by the legally binding decision. It has also refused to recognize the overwhelming majority opinion of the International Court of justice and the UN General Assembly that Diego Garcia—where it has massive strategic air and naval bases—belongs to Mauritius.

More specific to the South China Sea, the United States supports the Philippines-China arbitration decision and criticizes China for not abiding by it. In dismissing any possibility of a legitimate China claim to extensive maritime space, Pompeo pointed out that the arbitration decision held that all the Spratlys are only legal rocks that cannot generate 200 nautical mile Exclusive Economic Zones (EEZ) or continental shelves. That is true. But Pompeo neglected to mention that this precedent calls into question many U.S. EEZ claims in the Pacific including the enormous area it claims from the uninhabited Northwestern Hawaiian Islands.

Moreover, as the United States singles out and bashes China for its non-conformity with what it declares to be the international order, it neglects to call out similar “violations” thereof by its “allies and partners” that it is purportedly defending. For example, the claims by the Philippines to a large swath of features and sea as Kalayaan, and that of Malaysia to various “rocks” because they lie on its claimed continental shelf are just as bizarre as China’s nine-dash line claim and not supported by UNCLOS. Vietnam, like China (and Taiwan), requires prior notification for foreign warships to enter its legal 12 nm territorial seas which extend from claimed baselines along their coasts and from their claimed rocks in the South China Sea. Some have even more controversial claims regarding activities in their EEZs. Malaysia requires prior consent for foreign military exercises or maneuvers therein. Others claim illegal baselines and other regimes that are not consonant with UNCLOS. There are no innocents in the South China Sea.

Moreover, when it backs Vietnam in its maritime disputes with China, does the United States really expect the world to believe that its support for communist Vietnam vis-à-vis China is anything more than “the enemy of my enemy is my friend?” Or that it backs Brunei vis-à-vis China because of shared ‘democratic values’?

While it may be fashionable to demonize China regarding its policies and practices in the South China Sea, China is not the only country acting contrary to existing international law there. Indeed, there is plenty of blame—and guilt—to share for the current dangerous situation.

Mark J. Valencia is an Adjunct Senior Scholar at the National Institute for South China Sea Studies.

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