Secretary Pompeo’s Surprising Defense of International Law, Allies, and the Law of the Sea Convention

On Monday, Secretary of State Pompeo issued a strongly worded, highly legalistic statement lambasting excessive Chinese maritime claims in the South China Sea.

I welcome Pompeo’s statement as a substantive legal matter. It is long overdue. Nevertheless, it showcased the United States’ current schizophrenic approach to the UN Convention on the Law of the Sea (UNCLOS), its international allies in the Indo-Pacific region and elsewhere, and international law more generally. The United States should seek to reaffirm and reinforce its commitment to international law through UNCLOS Senate ratification. While doing so is by no means a magic bullet, it would serve as an important signal of the U.S. commitment to a rules-based order in the South China Sea and beyond.

To recap: for years, China has been making excessive claims in the region, pointing to a so-called historic “Nine-Dash Line” as the legal basis for these claims. This envelops an enormous swath of the South China Sea, encroaching on other nations’ maritime boundaries. And China is following through on its excessive claims: it has shown a willingness to employ aggressive tactics — including flexing military muscle — against other coastal states in Southeast Asia. It also has been building massive structures on contested “low tide elevations” and “rocks” in the area. These formerly uninhabited formations barely rise above sea level. They don’t qualify as “islands” under international law and, therefore, don’t create a critically important exclusive economic zone around them. But that has not stopped China from building and asserting one.

In his statement this week, Secretary Pompeo explicitly aligned the U.S. position with a 2016 Philippines v. China international Permanent Court of Arbitration decision that flatly rejected China’s sweeping Nine-Dash Line-based claims in the South China Sea. Pompeo pointed to the Tribunal’s decision as “final and legally binding on both parties” and noted that China’s maritime claims lacked any basis in international law. While the Tribunal was a notable win for the Philippines, China nevertheless expressly rejected the Tribunal’s jurisdiction and continued building apace.

The irony in Secretary Pompeo’s full-throated defense of the Tribunal’s decision is that the United States is not a party to UNCLOS, the near-universally accepted “Constitution of the Seas” that established the Permanent Court of Arbitration (China and the Philippines are two of the 168 parties). Even the United States’ earlier request to observe the Tribunal’s proceedings was rejected: the United States was deemed “a non-interested Party” and left outside. Despite not being a party to UNCLOS, Secretary Pompeo relied heavily upon the provisions in UNCLOS and the Permanent Court of Arbitration’s decision in challenging China’s claims.

What is the international community to make of the United States’ divergent views on UNCLOS’ importance?

On one hand, the U.S. government applauds the Philippines v. China decision as legally binding as applied to China’s excessive maritime claims. In doing so, it rightly highlights the importance of specific maritime claims provisions and points to China’s status as a party to UNCLOS. Because China is a party, Pompeo asserts, it must abide by UNCLOS and the Tribunal’s ruling.

On the other hand, the U.S. Senate cannot be bothered to provide its advice and consent to a treaty governing over 70% of the earth’s surface and much of the world’s economy.  This is despite efforts on the part of the Executive branch for multiple past administrations. A wide-ranging and diverse coalition of U.S. national security, military, commercial, and environmental interests have pushed for UNCLOS ratification, to no avail. Due to the Senate’s failure, the United States relies upon a 1983 Oceans Policy Statement from President Reagan, asserting that the United States complies with many of UNCLOS’ provisions as reflective of customary international law.

In truth, this is an unsatisfactory state of affairs. The United States remains a junior-varsity member of the international law of the sea team, unable to fully participate in its adjudicatory bodies. China, in turn, is quick to remind the United States of its non-party status and continues to aggressively build infrastructure in the South China Sea. Low tide elevations and rocks—which have limited maritime economic rights—transform to islands with China asserting a new territorial sea and exclusive economic zone. And so it goes. Raw power supplants the international rule of law.

Longstanding U.S. allies in the region are taking notice. For example, the United States and Philippines have a longstanding Mutual Defense Treaty. But despite its Tribunal “victory” over China, the Philippines is beginning to hedge its bets in light of rising Chinese influence. Indeed, the Philippines recently sought to reassess this treaty in the face of Chinese expansion.

In sum, there is a high-stakes standstill in the South China Sea. China continues to militarize the South China Sea, turning rocks and low tide elevations into habitable islands and asserting a massive exclusive economic zone. The U.S. Navy continues freedom of navigation exercises to challenge Chinese claims in an increasingly dangerous environment. As I have previously argued, the South China Sea is facing a muddled and increasingly militarized future with no end in sight.

Outside the South China Sea, the U.S. approach to international legal governance is, at least under the current administration, dismissive or outright hostile. The United States has been exiting international agreements and institutions that aim to solve global problems – like the Paris Climate Accord the World Health Organization – handicapping its ability to have a seat at the global decision-making table. More broadly, the U.S. has been quick to dismiss international law’s requirements when it constrains certain policy preferences. In taking military action in Syria in 2018, for example, the Trump Administration used force without UN Security Council authorization and lacked a clear self-defense justification under international law (a point that Professors Oona Hathaway and Jack Goldsmith previously made in “Bad Legal Arguments for Syria Strikes.”) As former National Security Advisor John Bolton recently detailed in his book, when the U.S. was criticized by the UN Secretary General for failure to follow international law, many in the Trump Administration dismissed this as ridiculous.

This “LOL” approach to international law harms U.S. credibility and interests in the South China Sea and elsewhere. International law is not an optional switch that the United States can toggle on and off based upon policy preferences. It provides the legal canvas for legitimate state action. Moreover, painting outside the lines whenever it suits a policy preference undermines the U.S.’s credibility and commitment to international law in other contexts—a point that is not lost on China and the rest of the world.

Remarkably, Secretary Pompeo’s South China Sea statement offers what amounts to a full-throated defense of international law and the importance of allies. It reinforces UNCLOS’ centrality in peacefully resolving disputes, all while the United States remains on the outside looking in. As China’s illegal claims in the South China Sea showcase, international law and institutions provide the language, forum, and tools to counteract excessive claims. They offer the only roadmap for the peaceful settlement of disputes.

Secretary Pompeo concluded that the United States “stands with the international community in defense of freedom of the seas and respect for sovereignty.” It is the tools provided by international law that provide the only legal antidote to the current “might makes right” approach embraced by China in the South China Sea. More broadly, using these tools instead of shunning them would signal a serious commitment to the international rules-based order and bolster U.S. credibility with allies and adversaries alike.

Image: US Marine Amphibious Assault Vehicles (AAV) prepare to hit the beach during the amphibious landing exercises as part of the annual joint US-Philippines military exercise on the shores of San Antonio town, facing the South China sea, Zambales province on April 11, 2019. (TED ALJIBE/AFP via Getty Images)

 

About the Author(s)

Mark Nevitt

Class of 1971 Distinguished Military Professor of Leadership & Law at the United States Naval Academy; previously Sharswood Fellow at the University of Pennsylvania Law School and former commander in the Navy, serving as a tactical jet aviator and attorney in the Judge Advocate General’s Corps for 20 years. Follow him on Twitter (@marknevitt).