Notable points in the US Letter on the East Sea sent to the United Nations

Legal story againEast SeaThe situation in the South China Sea is showing signs of becoming "hotter" than ever, after the US officially sent a diplomatic note to the United Nations, protesting China's excessive maritime claims, contrary to international maritime law, on June 1.

US Secretary of State Mike Pompeo said in a Twitter post on June 2 that US Ambassador to the United Nations Kelly Craft sent a letter to Secretary-General Antonio Guterres to protest theChina's claims in the South China Sea.

“Today, the United States protested the People’s Republic of China’s unlawful maritime claims in the South China Sea at the United Nations. We reject these unlawful and dangerous claims. Member States must unite to uphold international law and freedom of the seas.”

Assessing the US's Letter dated June 1, 2020, Ambassador - Associate Professor, Dr. Nguyen Hong Thao - an expert on international law pointed out some noteworthy points in this letter.

7 points to note

First, the Note clearly expresses support and affirms the importance of the 2016 Arbitral Tribunal Award in the South China Sea case. The United States affirms that its positions are completely consistent with the decisions of the Arbitral Tribunal and emphasizes that under Article 296 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS 1982), the award is final and binding on both the Philippines and China. China’s claim to historic rights is inconsistent with the Convention because it exceeds the limits of the maritime zones China may have under the Convention.

Second, the US strongly requests that China make maritime claims in accordance with international law as stipulated in UNCLOS 1982, comply with the Ruling and end provocative actions in the East Sea.

Third, the United States makes clear that China's claims illegally interfere with the freedoms of the seas that the United States and other countries enjoy, so the United States has the responsibility to voice its official objections.

Fourth, the Note Verbale emphasizes that only Article 5 of UNCLOS 1982 is applicable to the high-tide features in the Spratlys, that is, only the normal baselines are applicable. This is due to the conclusion of the Award: the features in the Spratlys are only rocks and not islands. Straight baselines are only applicable when the mainland coastline (island) is sinuous and sinuous, or when there is a chain of islands running through not far from the coast, or when there is an extremely unstable delta. All three of these cases are absent for the rocks in the Spratlys.

Fifth, in addition to Macclefield (Trung Sa), the US also listed James Shoal, Mischief Reef and Second Thomas Shoal as submerged features that are not subject to sovereignty claims and cannot generate any claimed maritime zones. These are all reefs where China has been and is planning to carry out land reclamation and build solid military structures.

Sixth, the US also reiterated that previous notes from the Philippines, Vietnam and Indonesia all expressed the same position on China's claims that are inconsistent with international law.

Finally, the US used the form of a note, not a note verbale, to request the UN Secretary-General to circulate the note not only to the member states of the General Assembly but also to the Security Council. This step shows that the US has begun to consider excessive claims that are inconsistent with international law, including UNCLOS 1982, which can create situations that threaten international peace and security, and that the US, as a permanent member of the Security Council, has the responsibility to put the issue on the Security Council's agenda when necessary.

Many people may have questioned why the US chose this time to send a diplomatic note to the United Nations to protest China’s illegal claims. In fact, the US diplomatic note was issued at the exact time when China took extreme steps to heat up the situation in the East Sea, such as brazenly establishing the so-called “Xisha and Nansha districts” to manage Vietnam’s Hoang Sa and Truong Sa archipelagos; arbitrarily announcing the so-called “standard names” and publishing the longitude and latitude of 25 islands, rocks and 55 entities in the East Sea; sending official ships to sink fishing boats of other countries; obstructing the activities of a Malaysian seismic survey ship, etc.

In the context of fierce competition between the United States and China and the increasingly deteriorating bilateral relationship, along with China's increasing aggressive actions and bullying of other countries as mentioned above, it can be understood that the US message here is that it is ready to stand with the relevant countries against unreasonable claims and aggressive actions from China.

According to Associate Professor Dr. Nguyen Hong Thao, the US note may also lead to similar reactions from other countries to protect their freedom of the seas when the ruling shows the possibility that the East Sea has oceans and the Seabed Area is a common heritage of mankind.

However, Mr. Nguyen Hong Thao noted that the tension will affect the negotiation process of the Code of Conduct in the East Sea (COC) and further highlight the need for a substantive, effective, legally binding COC. Therefore, it is difficult to negotiate the COC on time when the basic requirements of small countries are not guaranteed. The situation in the East Sea can only be controlled when countries exercise restraint, cooperate to resolve disagreements on the basis of goodwill, and comply with international law, including UNCLOS 1982./.