Who is the Rogue State in the South China Sea?

US Secretary of State Mike Pompeo has called China a rogue state. Among its alleged international sins are its policy and actions in the South China Sea.   But if China is a “rogue” state actor in the South China Sea, it is not the only one. Indeed, the U.S. has also engaged in rampant violations of the international order –including that in the South China Sea.

The term rogue state was coined by the U.S. to condemn states that violated the post-WWII 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 US State Department supposedly officially stopped using the term in 2000.

But now US Secretary of State Mike Pompeo has revived the term and applied it to China. Among its alleged international sins are its policy 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 U.S. 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  US grand strategy–the rules-based free trade system, a hub and spoke military alliance system with the US as the hub, multilateral cooperation, its interpretation of international law and the proselytizing of democracy and other American ‘values’. [3]Indeed, the U.S. 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 US 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 U.S. 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 its investigations against it 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, it refuses to ratify the UN Convention on the Law of the Sea, 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 – an unfortunate but common occurrence – 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 U.S. is the only major power that has not ratified the treaty.  But that is what the U.S. is doing—especially with its Freedom of Navigation Operations challenging China’s claims in the South China Sea.

Pompeo has now asserted that the U.S. “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 US deployment to the South China Sea of two its most iconic symbols of power – 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 US 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 U.S. 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 U.S. accuses China of ‘militarizing’ the South China Sea.  But ‘militarization’ means different things to China and to the U.S. To China, its emplacement of ‘defensive weapons‘ on its own territory does not constitute ‘militarization’ but is an exercise of the right of self-defence enshrined in the UN Charter. In China’s view, the U.S. has clearly ‘militarized’ and continues to ‘militarize’ the region with its forward-deployed troops, assets and patrols.

While the U.S. has criticized China for not adhering to the arbitration panel’s legally binding decision, the U.S. is hardly a paragon of virtue in such matters. When in 1986 the International Court of Justice determined that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua’s harbors, the U.S. 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.[8]

More specific to the South China Sea, the U.S. 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.

Pompeo conflates China’s transgressions against the international order in the South China and East China Seas.  But these are two very different situations that reflect the U.S. attempt to contain China.  In the East China Sea, China has a legitimate claim to the Japan administered features as well as part of Japan’s claimed continental shelf and EEZ.  The U.S. is involved because it controlled them after WW II and eventually transferred their administration to Japan. As a military ally of Japan, it now backs the status quo over China’s virulent objections. Japan aggressively nationalized the features, and enforces its claim with coast guard patrol boats. It has also made controversial maritime claims from them.

In the South China Sea, China’s claim to the features above high tide is as legitimate as others.  It is its claim to all the waters within it nine-dash line that is illegitimate. Moreover,  it has backed up this claim by ‘bullying’ its rivals.  The U.S. has inserted itself in the dispute on behalf of China’s rival claimants as the self appointed interpreter and preserver of the ‘international order’, sometimes with threat of use of force.

Moreover, as the U.S. 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 not supported by UNCLOS.

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—for the current dreadful situation to go around.

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Mark J. Valencia is an internationally known maritime policy analyst focused on Asia and currently Adjunct Senior Scholar at the National Institute for South China Sea Studies, Haikou, China

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