During his recent 12-day trip to Japan, South Korea, China, Vietnam, and the Philippines, US President Donald J. Trump focused mainly on North Korea and trade issues. However, he treated the South China Sea problems as a side issue or an afterthought. There had been plenty of opportunities for him to have raised these issues. In addition to bilateral summits at each of his stops, Trump attended the multilateral APEC meeting in Vietnam and the ASEAN-US Summit in the Philippines.
During his stops in East Asia, Trump did make a few perfunctory and superfluous statements on the South China Sea. He reaffirmed the need to uphold the principle of freedom of navigation and overflight, respect for international law and a peaceful and rules-based settlement of disputes. But when the issue of the South China Sea was raised at the closed-door meeting between ASEAN and the US, the only reported response from Trump was “a need for fair trade.” Given the bombastic and aggressive statements by Trump administration officials early in his term, this relatively milquetoast approach did not inspire confidence in friends and allies nor fear in the supposed targets of the US policy. Indeed, it only served to deepen the concern with US “staying power” in Southeast Asia.
In Vietnam and the Philippines, Trump issued joint statements with each of his respective hosts that among others elaborated at some length their shared policy regarding the South China Sea. Unfortunately, this policy potpourri only managed to confuse friends and rivals alike. Indeed, the parts of these joint statements that dealt with the South China Sea issues were a gobbledygook of redundancy and disingenuousness.
In the fourteen-paragraph joint statement of President Trump and Vietnamese President Tran Dai Quang, the longest paragraph was the one that addressed the South China Sea issues. The joint statement from Trump and Philippine President Rodrigo Duterte essentially repeated phrases from the US-Vietnam leaders’ joint statement.
The Trump-Tran statement began by underscoring the strategic importance to the international community of free and open access to the South China Sea. This agreed, the two then reaffirmed “the importance of unimpeded lawful commerce and the need to respect freedom of navigation and overflight and other lawful uses of the sea.” A little later in the paragraph, the statement proclaimed the parties’ commitment to “refrain from unlawful restrictions on freedom of the seas.” For Vietnam these phrases are particularly disingenuous.
First of all, Vietnam, by agreeing to this wording, has — unwittingly or not — signed on to the US interpretation of these phrases as meaning freedom of navigation for US naval intelligence, surveillance, and reconnaissance (ISR) vessels and aircraft in and over other countries’ 200 nm Exclusive Economic Zones (EEZ) — especially that of China. Such tacit agreement on this interpretation could come back to haunt it. These US ISR probes violate China’s domestic laws governing marine scientific research and environmental protection, as well as the responsibility in the UN Convention on the Law of the Sea (UNCLOS) to pay “due regard” to the rights of the coastal state while operating in its EEZ. They may even violate the UN Charter’s prohibition on threat or use of force.
The problem for Vietnam is that its own national laws restrict freedom of navigation and have been repeatedly challenged operationally by the US. This begs the question of whether Vietnam is changing its position, or is the US giving it a pass?
To seasoned observers, the glaring contradictions of fact render the Trump-Tran statement an embarrassment to both leaders.
The joint statement goes on to reiterate the parties’ commitment to “refrain from escalatory actions [and] the militarization of disputed features.” This would presumably include actions like Vietnam’s August 2016 installation on five of its occupied features of mobile rocket launchers capable of striking China’s runways and installations. At the time of its revelation, the US State Department admonished this action, saying: “We continue to call on all South China Sea claimants to avoid actions that build tensions.” Vietnam and the Philippines have reclaimed features and had “militarized” them years ago. Moreover, the Philippines used a naval vessel in a standoff with China at Scarborough Shoal — a clear threat of use of force and thus a violation of the UN Charter, UNCLOS and the ASEAN-China Declaration on the Conduct of Parties in the South China Sea (DOC).
Moreover, the US is well aware that Vietnam and the Philippines continue construction on and the “militarization” of the features they occupy. The US itself has increasingly raised tensions by militarizing the region with its forward deployed troops, assets, and patrols as part of the “rebalance” of its defense forces. Indeed, as Trump said onboard the homeward-bound Air Force One: “The Philippines is an unbelievably important military location because if you speak to the admirals and you speak to the generals that’s a perfect spot.”
The Trump-Tran statement then “called for the full and effective implementation” of the DOC. Fair enough. But the DOC includes the commitment to resolve territorial and jurisdictional disputes through friendly consultations and negotiations by sovereign states directly “concerned.” Ironically this is China’s position — not that of the US which instead supports multilateral negotiations or third-party arbitration — at least by others. Indeed, China consistently points to this commitment and argues that others are not abiding by it and thus violating the DOC.
Finally, the statement “called for all South China Sea claimants to clarify and comport their maritime claims in accordance with the international law of the sea as reflected in the 1982 United Nations Convention on the Law of the Sea.” This is disingenuous of the US given that it — alone among the maritime powers — has not ratified that Convention.
Moreover, according to the US, Vietnam continues to violate UNCLOS in several ways. Vietnam has an excessive straight baseline and a prior notification regime for entry of warships into its territorial sea and contiguous zone, as well as a requirement for foreign military vessels to place weapons in non-operative positions before entering its contiguous zone. These domestic laws and alleged violations of UNCLOS have been the targets of repeated US Freedom of Navigation Operations (FONOPs).
To seasoned observers, these glaring contradictions of fact render this statement an embarrassment to both leaders. Indeed, it reads like it was cobbled together by amateurs. Surely the US and Vietnam can and should do better in public diplomacy if they want other countries to believe and do what they say rather than what they do.