Ambassador Nina Hachigian Remarks on the South China Sea – Jakarta Foreign Correspondents Club

Ambassador Nina Hachigian Remarks on the South China Sea Jakarta Foreign Correspondents Club August 2, 2016

Grand Hyatt Jakarta, August 2, 2016

Excellencies, Colleagues, Journalists, Ladies & Gentlemen.  We gather here in the wake of a historic decision, one that many of you have covered in depth.  I predict that all of us will be following the ripples that emanate from the July 12 Tribunal award for years to come.

Last week, when I was in Vientiane with Secretary Kerry for the ASEAN Ministerial meetings, the arbitral decision was the number one topic of conversation in the meeting rooms and in the corridors.  (Number two was North Korea’s dangerous behavior.)

In meeting after meeting, ASEAN and dialogue partner foreign ministers, including Secretary Kerry, expressed their hope that the Tribunal decision would be a stepping stone, an opening, a turning point, toward a peaceful solution to the disputes in the South China Sea that have caused so much tension and anxiety.

In the ASEAN Ministerial, a meeting the United States did not attend, we understand conversation also focused on the South China Sea.  We saw that reflected in ASEAN’s Joint Communique.

Now, some headlines coming out of the Summit suggested that ASEAN caved under pressure, was in disarray, and couldn’t unite.  From my vantage point, these conclusions are not fair.  It is undoubtedly true that there were strong differences of opinion.  But in the Joint Communique, which ASEAN officials painstakingly negotiated over a series of days, we saw ASEAN Ministers with a unified voice reaffirm respect for legal and diplomatic processes in accordance with international law.

And as ASEAN has in the past, the statement also expressed serious concern over land reclamation and the escalation of activities in the South China Sea.  It called on all parties to exercise self-restraint in the conduct of activities there and avoid actions that could further complicate the situation.

Now I doubt that anyone directly involved in the negotiations would tell you it was easy or fun to get to this result.  You can ask Ambassador Buensuceso here.  But ASEAN did stay together on its core principles, despite their differences and despite a great deal of pressure.

From the U.S. perspective, it’s the core principles that are vital.  As you know, the United States does not take a position on who has sovereignty over any of the islands in the South China Sea.  For that matter, neither did the Tribunal.  It made no ruling about sovereignty.  Those claims, by all claimants, still stand.

But the United States does take a strong position on the importance of all claimants resolving their maritime disputes peacefully and in accordance with international law as reflected in the Law of the Sea Convention.

And as Secretary Kerry suggested to ASEAN, China, and the rest of the East Asia Summit community last week, we think this ruling can help turn a page in the ongoing disputes and serve as a new basis for diplomacy toward their peaceful management and resolution.  We urge all claimants to clarify their claims on the basis of international law, and work together creatively toward solutions.

As you know, China has argued that the Tribunal was illegitimate, and that it is upholding international law by rejecting it.  We have an extremely important relationship with China, and cooperate in many areas, but we disagree with their position on the legitimacy of the arbitral process in this case. The Tribunal was comprised of a highly distinguished group of international legal experts and was conducted under the terms of the Law of the Sea Convention.  (Incidentally, for the record, the Philippines filed this case without telling the U.S. government beforehand.)  When China joined the Law of the Sea Convention, it could have declared its preference for a different court or Tribunal for cases like this, including the International Court of Justice or the International Tribunal for the Law of the Sea, but it did not do so.

Article 288(4) of the Law of the Sea Convention provides that “In the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by a decision of that court or tribunal.”  The Tribunal determined unanimously it had jurisdiction after carefully considering every argument against jurisdiction China put forth in its publicly released position paper on the subject, as well as several other arguments China could have made but didn’t.  The Tribunal determined that the right to opt out of compulsory arbitration, under Article 298, that China often claims should have prevented the proceedings of this Tribunal does not apply in this case because the Tribunal made no ruling on the subjects to which the exception applies, including sovereignty and maritime boundary delimitation.

I am proud to say that I have read the close to 500 page ruling, and needless to say, it will take some time for me and everyone to digest it.  The United States is not commenting on the substance of the decision but it struck me, personally, as a reader, that the Tribunal went out of its way to consider the arguments that could be favorable to China, even though China did not participate.

 For me, personally, I was most shocked by the section on environmental damage. The Tribunal considered the effect on the marine environment of Chinese fishing practices and China’s recent large-scale land reclamation in the Spratly Islands and found that China had caused severe harm to the coral reef environment.  And in so doing, the Tribunal decided, China violated its obligation under the Law of the Sea Convention to protect and preserve rare or fragile ecosystems and the habitat of depleted, threatened, or endangered species.

First, the Tribunal found that Chinese authorities were aware that Chinese fishermen have harvested endangered sea turtles, coral, and giant clams on a substantial scale in the South China Sea, even providing armed protection for their vessels. The Tribunal referenced the work of an expert who provided evidence of: “70 square kilometres of coral reef damage from giant clam harvesting using propellers, a practice he described as more thoroughly damaging to marine life than anything he had seen in four decades of investigating coral reef degradation.”

The Tribunal award describes extensive damage from reclamation as well:

Reefs subjected to direct land reclamation have disappeared entirely. Reefs subjected to dredging in order to create landfill will have lost their complex structure that was built over centuries to millennia. This structure will take decades to centuries to recover.”

Now, is this disturbing to me because I am a fan of coral?  Well, a little, because I do love to snorkel and look at coral.  But there is a much more important reason.  Coral reefs act as fish nurseries.  According to the Tribunal, certain reefs now have  “reduced productivity and complexity,” with “significant reductions of nursery habitat for a number of fish species.  Therefore, not only will the reefs affected by construction have a greatly reduced capacity to sustain local fisheries, but their ability to help replenish the fisheries of neighboring jurisdictions will also be vastly diminished, at least threefold.  The construction activities thus will have a broader impact on the marine ecosystem in and around the South China Sea and on fisheries resources.

Unless the region acts soon, because of the destruction of coral habitats necessary for the spawning of many fish, as well as massive overfishing, much of that Illegal, Unreported, and Unregulated fishing, we are facing the prospect of large-scale, total fisheries collapse and food insecurity in the years to come.

Scarcity of a resource so fundamental to economies and lives in the region raises the specter of humanitarian catastrophe. And because the claimants haven’t clarified all their maritime claims or determined who has sovereignty over what islands, some in the region may be sanctioning unregulated fishing to ensure that they do not give the appearance of acquiescing to another country’s claims.  This, my friends, is a serious crisis.  ASEAN and the region have to come together to find a way to manage the precious marine resources that remain in the South China Sea.

Let me close with a final reason why this ruling is so important. Not just because it creates a potential path forward on these longstanding disputes, and not just because it has shed some light on a looming food security crisis, but because it supports a peaceful, rules-based process.

One of the primary reasons that the United States has invested so much in ASEAN in the past forty years but especially in the last seven is because ASEAN is an architect and steward of the rules-based order.  As President Obama has said “ASEAN is central to the region’s peace and prosperity, and to our shared goal of building a regional order where all nations play by the same rules.” Indeed, you can see this in the Treaty of Amity and Cooperation that cites rule of law, in the ASEAN Charter that upholds international law and ASEAN’s vision 2025 that aspires to: “A rules based community that fully adheres to ASEAN fundamental principles, shared values and norms as well as principles of international law governing the peaceful conduct of relations among states.”  We reaffirmed our shared principles in the Sunnylands Declaration, when all the leaders pledged a “Firm adherence to a rules-based regional and international order that upholds and protects the rights and privileges of all states” as well as “shared commitment to peaceful resolution of disputes, including full respect for legal and diplomatic processes, without resorting to the threat or use of force in accordance with universally recognized principles of international law and the 1982 United Nations Convention of the Law of the Sea.

Let me close by describing why these principles matter to us—it’s not just because they sound nice.

President Obama has said: “the arc of the world does not bend towards justice, or freedom, or equality, or prosperity on its own.  It depends on us, on the choices we make.”

Those choices include the rules we create, and our willingness to abide by them.

ASEAN’s acceptance and stewardship of shared rules and standards, and its support, since its founding, of international law has helped to create a stable and peaceful environment for the development of the region.

In an era of globalization, where more people have to share fewer resources, and states benefit most if they can closely cooperate, shared rules and standards are critical.  Rules create predictability. They create a sense of fairness because all countries have the same burden of compliance and responsibility.  Over time, when countries follow common rules, they create habits of cooperation. Rules, in other words, create trust.  And trust, in turn, helps countries to cooperate toward a better, safer, prosperous, more humane, world.  This holds true in the economic realm, which is why we negotiated TPP, so rules would incentivize a race to the top on issues like environmental protection and illegal fishing.  It’s true when it comes to fighting terrorism, where organizations that the United States supports like INTERPOL, are a critical tool that all nations, including ASEAN Member States, can use together to share standardized information.  And it’s true in the maritime realm where in 1982, the community of nations decided to adopt a set of common rules to ensure peace.  Even though our Congress has not provided its consent for us to join the Law of the Sea Convention, we consider it to reflect customary international law and abide by it with respect to traditional uses of the oceans.

If countries in the region started to disregard their legal obligations, it could erode the rules-based international system and, over time, such a trend could unravel the international legal order, peace, and stability that we and the rest of international community have enjoyed for the past 70 plus years.

This is the logic behind our stance calling on both parties to abide by the decision, which is legally binding on them as provided in the Law of the Sea Convention.  And more than just abide, we call on China to help continue to strengthen the international and regional rules-based order that has enabled its own growth and success.  Beijing has shown it can and will do that, as when it helped spur a global climate deal, when it has been willing to enforce UN Security Council Resolution 2270 applying sanctions against North Korea, and when it has abided by WTO rulings that go against it.  We hope it will also help uphold a safe, fair, legal and rules-based maritime order in the South China Sea.

The Tribunal has done the international community a service by making clear the breadth of challenges that we face in the South China Sea and provided us all an opportunity to rethink how to resolve the disputes in the South China Sea peacefully.  Let us use this opportunity wisely.