China’s Maritime Claims in the South China Sea

THE WASHINGTON FOREIGN PRESS CENTER, WASHINGTON, D.C. 

MODERATOR:  Good afternoon, and welcome to the Washington Foreign Press Center briefing on China’s Maritime Claims in the South China Sea.  My name is Jen McAndrew and I am today’s moderator.   

Our briefers today are Dr. Jung Pak, Deputy Assistant Secretary of State for Multilateral Affairs in the Bureau of East Asian and Pacific Affairs, and she also serves as Deputy Special Representative for the Democratic People’s Republic of Korea; Constance C. Arvis, acting deputy assistant secretary of state for Oceans, Fisheries, and Polar Affairs in the Bureau of Oceans, Environment, and Scientific Affairs; and Robert Harris, assistant legal advisor, Office of the Legal Advisor. 

Together they will discuss the Department of State’s Limits in the Seas study released January 12th.  I’d like to thank our briefers for giving their time to speak to the foreign press today. 

This briefing is on the record.  Our briefers will give opening remarks, and then we will open it up for questions.  We have limited time today, so apologies in advance if we don’t get to all of them.   

And with that, I will pass it over to our first briefer, Deputy Assistant Secretary Pak.  Over to you.   

MS PAK:  Thanks, Jen.  And thank you all for joining us to discuss this very important topic.  I’m Dr. Jung Pak, Deputy Assistant Secretary of State for Multilateral Affairs.  Earlier this month the Department of State released the 150th report in our long-running Limits in the Seas series, a collection of legal and technical studies that examine the maritime claims and boundaries of coastal states from a geographic and legal perspective.   

This latest study focuses on the People’s Republic of China’s expansive maritime claims in the South China Sea and concludes that the PRC’s claims are inconsistent with international law and gravely undermine the rule of law in the ocean.   

In recent years, the PRC has stepped up its coercive activities in the South China Sea by increasing its deployment of maritime militias that operate alongside PRC law enforcement and military to harass and intimidate other claimant states.  These PRC actions represent a systemic and calculated effort to interfere with the rights and freedoms, including the navigational rights and freedoms, that all countries enjoy under international law.  And these coercive activities in the South China Sea are reflective of those the PRC conduct around the world.   

The United States and all law-abiding nations share a deep interest in the preservation of a free and open South China Sea.  All nations, regardless of military and economic power, should be free to enjoy the rights and freedoms guaranteed to them under international law as reflected in the 1982 Law of the Sea Convention without fear of coercion. 

The United States stands with Southeast Asian claimant states seeking to defend their sovereign rights and interests consistent with international law.   

With that, I will hand it over to my colleague, Connie Arvis, from the Bureau of Oceans and International Environmental and Scientific Affairs; and Robert Harris, from the department’s Office of the Legal Advisor; to briefly discuss the report.  I look forward to answering your questions later in the event.   

DAS Arvis. 

MS ARVIS:  Thank you so much, Jung, for that very insightful introduction.  And thank you also to the Foreign Press Center for hosting this event, and to all the journalists who are joining us today.  I understand that we are expecting over 50 news outlets to participate, representing all corners of the globe – an impressive showing of interest, and one that I think reflects the importance of this issue. 

As Jen and Jung have noted, my name is Connie Arvis, and I am the acting deputy assistant secretary for oceans, fisheries, and polar affairs in the State Department’s Bureau of Oceans and International, Environmental and Scientific Affairs.  It’s a great pleasure to have this opportunity to address the Department of State’s Limits in the Seas Number 150 Report with you all today. 

As Jung indicated, since 1970 my bureau has worked closely with the Department of State’s legal team and various regional bureaus in preparing an extensive Limits in the Seas series.  Previous reports have studied maritime claims and boundaries of coastal states all over the world, including, for example, Spain, Ecuador, Kiribati, Mauritius, Cape Verde, Norway, and Honduras, as well as the Philippines, Vietnam, Malaysia, and Indonesia in the region at issue today.  All of our reports are publicly available on the department’s website.   

I’m honored to help inform you today of the conclusions of the latest of our reports, Number 150.  The Department of State’s newly released study, Limits in the Seas Number 150, carefully and precisely examines the PRC’s expansive maritime claims in the South China Sea and concludes that those claims have no basis in international law.  This particular study builds on the department’s 2014 analysis of the PRC’s maritime claims in the South China Sea.  Since 2014, the PRC has continued to assert claims to a wide swath of the South China Sea, including a right to draw baselines and closing in internal waters within four geographically dispersed groups of islands and other maritime features.  Limits in the Seas Number 150 also addresses the PRC’s maritime claims in the South China Sea related to submerged maritime features and to so-called historic rights. 

In short, this study systematically reviews the PRC’s maritime claims and finds them to be inconsistent with numerous universally recognized provisions of the international – of international law as reflected in the 1982 Law of the Sea Convention. 

As Jung noted, in the name of enforcing its expansive and unlawful maritime claims in the South China Sea, the PRC is interfering with rights and freedoms, including navigational rights and freedoms that accrue to all states.  The United States unequivocally rejects these unlawful claims and any such interference and, as reflected in this detailed study, reiterates that the PRC has offered no coherent legal basis for its expansive maritime claims. 

The United States calls again on the PRC to conform its maritime claims to international law as reflected in the Law of the Sea Convention to comply with the July 12, 2016 decision of the arbitral tribunal in the South China Sea arbitration and to cease its unlawful and coercive activities in the South China Sea.   

Noting the relatively short time we have together today, please allow me to introduce to you my brilliant legal colleague Bob Harris.  As has already been noted, Bob serves as the Department of State’s legal advisor for East Asian and Pacific Affairs, and I am very grateful to him for his critical part in bringing one – LIS 150 to fruition. 

Bob, over to you.  Thank you.  

MR HARRIS:  Thank you, Connie.  Given the short amount of time we have available today, I will not attempt to describe the report in any legal detail, but to help you get a better understanding for our discussion today, I would direct your attention to two key elements of the study.   

First, because of the complexity and length of the analysis, the study has a short executive summary at the very beginning to help the reader get a quick understanding of its principal conclusions.  That is a useful place to start to get a good overview of our analysis and conclusions. 

Second, in addition to the principal study, there is also posted on the department’s website a detailed and comprehensive state practice supplement.  The purpose of the supplement is to examine the PRC’s legal argument that it has the right under what is known as customary international law to assert maritime claims related to the entire South China Sea island groups or archipelagos.  As the main study in the supplement explains, as a matter of international law, there are certain requirements that must be met for there to be a rule of customary international law, including a general and consistent practice of states. 

The state practice supplement looks comprehensively at the relevant state practice relating to island groups or archipelagos and concludes that the requirements for the creation of such a rule of customary international law have not been met.   

With that, I turn the floor over to members of the press and will hope to be available to answer legal-related questions as they arise.  Thank you.  

MODERATOR:  Thank you, Bob.  As a reminder to all of our journalists, you can ask a question by raising your hand, and I will call on you.  You can also send that question in the chat.  For the first question, though, I would like to call on Miya Tanaka of Kyodo News.  Miya, you can enable your microphone and ask a question. 

Miya, do we have you? 

QUESTION:  (Inaudible.) 

MODERATOR:  Miya, can you ask your question? 

QUESTION:  (Inaudible.) 

MODERATOR:  I think she may be having trouble with her microphone, so I will go ahead and read her question which was advanced — 

QUESTION:  Hello? 

MODERATOR:  Oh, do we have you, Miya?  Okay.  Go ahead. 

QUESTION:  Can you hear me? 

MODERATOR:  Yes, we can.  Please, go ahead. 

QUESTION:  All right.  I actually can’t hear, but I’ll just go to the question.  Okay. 

So thank you for doing this, and thanks for the very detailed report.  I would like to ask about Japan’s role in addressing concerns over China’s unlawful maritime claims in the South China Sea.  So in what aspect do you think the U.S. can cooperate with Japan on this issue?   

And there has also been a Japanese media report earlier this month that Japan’s Maritime Self-Defense Force ships have sailed near the waters around Chinese-controlled islands and reefs in the South China Sea from the spring of 2021.  So does the U.S. welcome these Japanese activities and expect Japan to conduct more of its so-called FONOPs?  And do you think it is possible to carry out joint FONOPs with – between the United States and Japan?  Thank you.  

MS PAK:  Jen, let me take that first and I’ll look to Connie and Bob for any additional thoughts on that.  Thanks for that.   

Miya, I’ve seen those reports and will defer to the Government of Japan on any details of that, but as you’ve seen from the 2+2 joint statement with Secretary Blinken and Secretary Austin and their Japanese counterparts, the U.S. and Japan are very much committed to freedom of navigation and overflight and other lawful uses of the sea.  And when it comes to – and we really appreciated Japan’s consistent efforts being one of the nearly dozen other countries that have submitted notes to the UN protesting the PRC’s position of drawing – position on drawing its territorial sea baselines.  And we’ll continue to work with the Government of Japan, of course, on upholding international law and freedom of navigation. 

With that, let me turn it over to Connie and Bob to see if they have additional thoughts on that issue. 

MS ARVIS:  Yeah.  Thank you, Jen.  Let me address the question of freedom of navigation operations and just say that obviously, FONOPs are part of a global of routine and peaceful assertions of navigation rights and freedoms guaranteed to all countries under international law.  They’re a way in which the U.S. stands with the international community in defense of freedom of the sea, and the U.S. will continue to fly, sail, and operate wherever international law allows.  And, of course, we welcome our allies and partners to do the same and certainly Japan.  On the question of whether we could do it jointly, I would defer to that to our DOD colleagues, who unfortunately are not here today.  Thank you. 

MR HARRIS:  Just one final thought, which is when one talks about countries operating in the South China Sea, it’s important to realize that countries have sailed in the South China Sea for centuries, and simply sailing in the South China Sea is simply exercising those rights and freedoms that are set out in international law and have been protected for many centuries.  So I would just make that observation that many, many countries are operating in the South China Sea and there’s nothing provocative about doing that, so just a thought. 

MS PAK:  So I think one of the signs of the – what Bob has mentioned and what Connie has mentioned is that we received great welcome and praise for this report, and kudos to lots of people who were involved at State Department, including Bob Harris and Connie Arvis on getting this report to fruition.  But there’s been a lot of really great international attention to this issue, and we’re grateful, of course, for your participation in this briefing. 

Jen, back to you. 

MODERATOR:  Thank you.  I’d like to take a question that was submitted in the chat from Adam Creighton of The Australian.  The question is:  “Does this report change the U.S. official position on China’s claims in any way?  And if so, how?” 

MS ARVIS:  I’ll go ahead and take that initially.  So the answer is no.  We have for many years already asserted that the claims that China is making in South China Sea are illegal and inconsistent with international law.  This report is really just a further assessment of grounds that have been offered up by China that we continue to disagree with, so simply said, no.  We are reasserting what we have held in the past. 

MS PAK:  Yeah — 

MR HARRIS:  I think what I would to add to that is that this provides a deeper analytical basis for what has been the U.S. position for a extended period of time.  But this actually was looking at the question and trying to assess as best as could be what are China’s maritime claims in the South China Sea and are they compliant with international law, so the conclusions did – were consistent with what the United States has been saying, but this was an independent analysis that was conducted in coming up with the study. 

MS PAK:  And I think this comes at a really important time to everybody on what we’ve seen in the recent years, since 2014.  Since the first report on this particular issue came out is that we’ve seen several – the PRC activities in the South China Sea have become increasingly coercive and aggressive, and I think that and the fact that you’re – that 50 or 60 of you are participating in this call and the great attention that we’ve gotten from our allies and partners really attests to the uptick in some of these activities from the PRC. 

MODERATOR:  Our next question will go to Robert Delaney, South China Morning Post, if you’d like to enable your mike and ask your question, Robert. 

QUESTION:  Hi, thank you.  Can you hear me okay? 

MODERATOR:  Yes, we can hear you. 

QUESTION:  Great.  So I – yeah, I did just throw the question in the chat, but I’ll just read it out:  The Obama-Biden administration strongly advocated U.S. ratification of the – of UNCLOS to strengthen its position with respect to China’s maritime claims in the region.  Now, does the current Biden-Harris administration have the same stance?  And if so, what will it do to convince Congress to vote for ratification?  Or maybe to sort of add to that, is there anything that – what control does the administration have over this?  How much effort or how much are they going to push this issue?  What can they do about ratifying UNCLOS? 

MS ARVIS:  Jen, I’ll go ahead and take the first shot at that.  Like past administrations, both Republican and Democrat, this administration supports and advocates joining the Law of the Sea Convention.  As you know, for decades the United States has affirmed that the convention’s provisions concerning traditional uses of the ocean generally reflect customary international law that is binding on all states, including the United States.  But this administration will continue to vigorously defend U.S. interests, which we believe are best served by widespread adherence to the international law of the sea as reflected in the convention. 

Unfortunately, I don’t have more information for you – with respect to timing of any conversation with Congress.  Thank you. 

MODERATOR:  Okay.  Next question will go to Ben Marks, NHK, Japan.  Ben. 

QUESTION:  Yes, hi, good afternoon.  Thank you to all the briefers.  My question is for Dr. Pak.  As you’ve all mentioned, the PRC’s assertions and their maritime claims in the South China Sea are not in accordance with international law.  Currently in Europe, Russia is violating principles of international peace and security by attempting to change national borders by force and to restrict country sovereignty such as with Ukraine.  Do you think that the outcome of efforts by the international community, including the U.S., to address the Ukraine crisis will have an impact on the South China Sea issue?  Do you think the U.S. can address challenges from Russia and China simultaneously, and is there any possibility that the Ukraine crisis will have any impact on U.S. foreign policy towards China? 

MS PAK: Yeah.  I would be – I wouldn’t necessarily link the Ukraine issue with the South China Sea issue, and I – coming from – speaking from the EAP perspective, certainly we’re looking to – and you’ve heard the President say, as you’ve heard the Secretary of State say this – that we’re trying to uphold, to reaffirm, revitalize and uphold the international rules-based order that we’ve been fighting forfor decades.  And with this report and with respect to the South China Sea, we want to make sure all of the states, including the PRC, continues to abide by its international obligations. 

And I think this is also – we want to – I want to make sure to highlight the fact that this is part of our overall effort in the Indo-Pacific region reaffirming our commitment to the region, that as long as there are unlawful infringements of maritime rights and freedoms, that the United States will continue to uphold those rights and support our allies and partners.   

And so let me stop there and turn it back to Jen or to Connie or Bob if they want to add anything to that.   

MS ARVIS:  I have nothing to add on that one.  Thank you.  

MODERATOR:  Okay, we’ll go to our next question then from Ryo Nakamura from Nikkei, Japan.   

QUESTION:  Thank you very much for taking my question.  The previous administration imposed sanctions on the Chinese companies and individuals involved in the illegal activities in the South China Sea.  I am wondering if the Biden administration will do the same if necessary.  Thank you.   

MS PAK:  I think given some of the – given some of the aggressive actions and the very assertive and coercive actions that the PRC has been taking, we are discussing with our allies, making sure that we reassure our allies that we are certainly committed to freedom of navigation and maritime law and international law, and we’re continuing to work with our allies and partners on those issues.   

I’m not – I don’t think I’m going to go into the whole sanctions issue, but I think that as you’ve seen the Secretary say over and over again, it’s allies and partners first and foremost, and that’s certainly the marching orders from my principals here, so – and that’s what I’ll continue to do. 

MS ARVIS:  And if I could just add on to that response in a different way and to say we are taking several actions to continue to push back against the Chinese activities in the South China Sea.  I see a question in the chat about do we accept a fait accompli.  And so in part, this study is a very important basis from which friends and allies can draw to push back on the claims.  And also as we discussed earlier, we continue a program of freedom of navigation operations.  So yes, we definitely are not accepting a fait accompli and continue to call on the PRC to change – change its behavior to conform with maritime claims and to cease its unlawful and coercive activities.   

MODERATOR:  Thank you for responding to that question in the chat from Prashant Jha of Hindustan Times.  There was another question in the chat from Luu Viet Ha from Zing News in Vietnam, and that question is, I am quoting:  “I am curious how long did it take you to prepare the report.  When did you start it, and what motivated you to make a new report about China’s claims just eight years after the 2014 report?” 

MR HARRIS:  Perhaps I can address that.  It was roughly two years in the making.  It’s a very detailed analysis.  We tried to understand the PRC claim as best we could by going to primary sources, Chinese laws, regulations, formal utterances, and after having that then trying to see what was the relevant international law.  And then since there was an argument that there was international practice to support drawing base lines that were inconsistent with the Law of the Sea Convention, we did an exhaustive analysis of that state practice of 23 countries that have island groups and looking carefully at the practice, the baseline practice of those countries.  And that was a very lengthy undertaking. 

I would say the reason why a new report was necessary, our Limits in the Seas 143 was issued in issued in 2014.  In 2016 after the Philippines-China arbitration, the People’s Republic of China re-articulated its South China Sea maritime claims, making it clear that it was claiming historic rights, and also articulating this novel theory that one could draw baselines around entire island groups in the South China Sea.  Because of that re-articulation, our 2014 analysis was not complete, and because of that we undertook trying to understand as best we could what is the PRC’s maritime claim and evaluating that for purposes of international law. 

MODERATOR:  Thank you.  There was another question submitted in the chat.  This one comes from Charissa Yong from the Straits Times, Singapore.  Her question is:  “What does the U.S. hope this report will be an impetus for?  Can it be the foundation for robust diplomatic pushes?  Does the U.S. hope ASEAN states will band together more and speak up more strongly against China on these issues?” 

MS ARVIS:  I can start with taking that one.  And so yes, this entire series of reports, including this last one, 150, is intended to be a resource that’s available to legal practitioners, the public at large, governments can make use of to analyze claims, maritime claims.  So certainly, we hope that this will provide information that our partners and allies can make use of.  We certainly hope that in addition to the 11 countries that we’ve already noted that have issued public statements against the PRC’s inconsistent, illegal claims, that others do so as well.  So we do hope that this is part of an ongoing push by nations who are conforming to regular international practice to push back on the PRC’s illegal maritime claims. 

MODERATOR:  Okay, thank you.  There was just a follow-up from Prashant Jha, Hindustan Times.  “While repairing – while preparing the report, did your team also have any concerns about Chinese activities in the Indian Ocean region?” 

MS ARVIS:  I’m going to take a very quick answer on that one.  Our reports are very concise as to the regions that they cover.  So at this point, the concentration was on South China Sea, and that is the extent of this particular report.   

MODERATOR:  Okay, we’re coming to the end of our time, so I believe this will be the last question.  It’s submitted in the chat.  It’s from Shinichi Akiyama from Mainichi newspaper, Japan.  The question is:  “What is the U.S. demand to China on China’s artificial islands in South China Sea?  How is the U.S. – how will the U.S. try to reverse this status quo?” 

MR HARRIS:  I wonder if I might address the answer just from an international law perspective, because it’s obviously a very big policy issue that we would have – need a lot of time to answer.  But one of the pieces of the study looks at whether China can lawfully claim sovereignty over and make maritime entitlements derived from features that are below water at high tide, features that are not islands.  And the report, looking at longstanding international law, says that maritime claims cannot be derived from non-islands, from features that are below water at high tide in their natural state.  So the legal answer to the question is that countries cannot appropriate those kinds of features, claim sovereignty over them, or make maritime claims based on them.   

There’s obviously a lot of other issues related to that, but I wouldn’t attempt to address them because they’re policy questions.   

MS ARVIS:  Well, I would like to just reiterate very broad policy call – you’ve heard me say it, but I’m going to repeat it because it’s worth repeating – and that is that we call on the PRC to conform its maritime claims to international law as reflected in the 1982 Convention on the Law of the Sea.  We call on the PRC to comply with the 2016 decision of the arbitral tribunal South China Sea arbitration, and we call the PRC to cease unlawful and coercive activities in the South China Sea.  And that certainly pertains to the specific question of artificial islands as well. 

MS PAK:  So a final comment, Jen – and Connie, if I may follow up on yours and Bob’s excellent interventions – this is an issue for all of us.  The South China Sea represents – it’s an important international waterway.  A lot of our economic livelihoods and prosperity and openness depends on this waterway.  Three trillion dollars of commerce takes place annually in this – through this region.  So it is – of course it’s of strategic importance for the United States and of our allies and partners to ensure that there’s freedom of navigation and that there are no unlawful claims that the PRC has been advocating for.  So we want to be – we want this report to have the legal underpinning and this very excruciating detail of the legal and maritime issues and all of these – the resources that came to bear over the past two years to produce this report that it’s useful for our allies and partners in countering PRC’s unlawful claims there.  Over.   

MODERATOR:  Thank you.  On that note, we will conclude today’s briefing.  On behalf of the U.S. Department of State and Washington Foreign Press Center, I’d like to thank all of our briefers today for speaking to the foreign press.  Thank you and good afternoon.