Background Briefing on South China Sea Arbitration

Special Briefing
Office of the Spokesperson
Senior State Department Official
Via Teleconference
Washington, DC
July 12, 2016

MODERATOR: Great. Thank you. And thank you all for joining us today on this call on the arbitration decision. For your information, this call is embargoed until the end of the call. The call will be on background. For your information, not for reporting purposes, our speaker today is [Senior State Department Official], moving forward [Senior State Department Official] will be known as Senior State Department Official. We have a hard stop with this call at 4:30, so we’ll get right to that.

Senior State Department Official, the floor is yours.

SENIOR STATE DEPARTMENT OFFICIAL: Thanks very much, [Moderator]. I’m sure that all of the folks on the line have seen the statement that was issued by our spokesperson here at the State Department John Kirby this morning, and you’ve probably all either been in the press briefing or seen the transcript of the Qs and As there. So I’m not going to cover that ground.

I will say that, of course, the decision announced by the Law of the Sea Tribunal in The Hague today was a very sweeping and decisive ruling. Four key elements from our point of view are, first, the invalidation of the nine-dash line claim; secondly, the determination that the features in the Spratly Islands and the Scarborough Reef are entitled to no more than 12 nautical miles by way of maritime space; that the construction of artificial islands by China and the conduct of Chinese fishing fleets violated the rights of the Philippines; and that the large-scale reclamation and constructing these military outposts in the Spratlys damage the environment.

But while the decision was quite clear and authoritative, it was also immensely complex. The press release alone is 11 pages long. I am not a lawyer. And everyone – all the parties, and certainly the United States – need time to digest it and make an assessment of the implications of the ruling.

What I would say is that the important thing, from our perspective, is that this ruling – although it was a technical assessment of maritime rights and doesn’t address or alter the question of who has sovereignty over the land features in the region – does create an important diplomatic opportunity. And we believe strongly that once the dust settles and the rhetoric subsides, this decision opens the door to some very practical and potentially productive discussions among the various claimants in the South China Sea, in part because the ruling significantly narrows the geographic scope of the areas in question.

So we are working diplomatically with each of the parties to try to encourage them to use this decision as the basis for discussions and potentially the basis for agreement on what constitutes acceptable behavior in the disputed areas and to explore the potential down the road for things like joint development. Again, I won’t rehash the statement that John Kirby made, but I will emphasize the importance that the United States places on restraint by all the parties. We call on them to refrain from coercion or the threat or the use of force, to respect the rule of law, and to clarify their claims consistent with the Law of the Sea, which we think will accelerate the process of finding an acceptable formula for reconciling differences peacefully.

So let me stop there and take you questions.

MODERATOR: That’s great. Operator, if you could give the directions for questions again, and then we can take our first question.

OPERATOR: Ladies and gentlemen, please press * followed by 1 for any questions, *1. We’ll go to the first question from Nick Wadhams with Bloomberg News. Please, go ahead.

QUESTION: Hi. Thanks very much for holding this briefing. I just had a question on next steps and talking about encouraging the two sides to use this as a basis for discussion. I mean, given China’s very swift response, also the foreign ministry spokesman’s formal complaint to the U.S. against John Kirby’s fairly evenhanded comments earlier today, do you see China as being willing to use this as a basis for discussion? I mean, you say after the rhetoric dies down. So do you see China’s response so far as just rhetoric? I mean, is there some – is there some place to go from here after this ruling, given how strongly China has come out against it?

SENIOR STATE DEPARTMENT OFFICIAL: Well, first of all, Nick, I’d take violent exception to your modifying John Kirby’s statement as “fairly evenhanded.” I think it was a model of balance and of moderation. But in all seriousness, look, there is a lot of maximalist rhetoric right now. Emotions are running high, and it will take some time for the dust to settle, for tempers to cool down, and for a sober analysis of both the tribunal’s decision itself and the ramifications of it, but also an assessment of the way forward.

China isn’t going to stop being a major player in the region or a neighbor. The Philippines aren’t going away; Vietnam isn’t going away, and the South China Sea remains a vitally important waterway. China’s relationship not only with the United States but with ASEAN as a group, with the individual 10 ASEAN members, with the other claimants, are important to China and, frankly, good relations between and among them are important to the region, to the U.S., and to the world.

So look, it’s not my place to tell China what’s in its interests, but surely to be regarded with respect and not fear, to be seen as faithful to international law and not flouting it has got to manner. If China weren’t concerned about its international reputation, surely it wouldn’t have gone to the extraordinary length that it has gone to try to win the battle of international public opinion.

Now, the decision is quite clear and very decisive. I think that removes a certain amount of ambiguity. But it in no way impedes the prospect of China and the other claimants working on a path forward. And that’s something that the United States will assist and will strongly support. I’ll teach you a Chinese phrase: “win-win.” You hear that a lot from the Chinese, and “win-win” is a way of characterizing compromise, often without acknowledging that there’s been compromise if that’s politically difficult.

And so we are putting a great deal of importance on the process that can unfold once China, the Philippines and the other claimants in the South China Sea have had an opportunity to fully assess the decision and to resume a more constructive diplomatic process. Thank you.

MODERATOR: Okay. Operator, if we can move to our next question, please.

OPERATOR: We’ll go to the line of Lesley Wroughton with Reuters. Please, go ahead.

QUESTION: Yes, hi. When would be the first opportunity for either you or the Secretary or any other senior U.S. official to directly have discussions with China on the result of this? And number two, do you expect other countries, such as Vietnam, to now feel a little bit more emboldened by such an outcome and to perhaps take the same path, meaning going to the international tribunal with their claims?

SENIOR STATE DEPARTMENT OFFICIAL: I see. Well, Lesley, we are, as a government, in regular touch with the Chinese Government, and I was in touch with the Chinese ambassador in the last 24 hours. I and Secretary Kerry will shortly be in Laos for the ASEAN Regional Forum. The Chinese foreign minister will be there, the vice foreign minister will be there. And we may be backwards in the State Department, but telephones, internet, and other forms of technology have arrived and we use those as well to maintain an ongoing dialogue with China. And I would say that one of the real hallmarks of the Obama Administration has been the development of a really robust and wide-ranging set of lines of communication with the Chinese that I think serve in many instance as a safety net, such that when there are problems or serious disagreements, we know that we have the ability to talk and to try to be understood and try to understand the other guy. Face-to-face talks I’m sure will be possible when the Secretary and the foreign minister meet.

In terms of Vietnam, I’m certainly not in the business of predicting what foreign governments will do or decide. I wouldn’t imagine that any interested party would make any decisions about next steps until, number one, they had a chance to digest 447 or some-odd pages of dense legal writing from the tribunal. Secondly, after they had had a chance to observe not only what China is saying, not only what the Philippines are saying, but what each of them are doing, that will be particularly important. And thirdly, there will be widespread consultations between and among the various claimants as well as within ASEAN as a group. So my expectation is that there will be a period of assessment, discussion, and consultation that lies directly ahead.

For our part, Lesley, the United States and Secretary Kerry in particular will redouble efforts to focus each of the claimants on restraint, on diplomacy, and on exploring avenues for compromise and cooperation. There is more reason to think that this decision can be the predicate for progress than to think it would precipitate a crisis.

Thank you.

MODERATOR: That’s great. Operator, if we can move to our next question, please.

OPERATOR: Matthew Pennington with Associated Press, your line is open.

QUESTION: Hi, [Senior State Department Official]. Thanks for doing the call. You mentioned that the ruling has sort of narrowed the geographic scope of the disputes in the South China Sea. Just by extension, does it remove any ambiguity about the – whether U.S. treaty obligations might lie with the Philippines if some of these features, which before were considered to be subject to dispute, now clearly lie inside the Philippines EEZ and outside China’s potential claims?

SENIOR STATE DEPARTMENT OFFICIAL: Thanks, Matt. You are really testing my ability as a non-lawyer to navigate some immensely complicated terrain here. Speaking as a layman, the two points that I would make just to cast your question in a more, say, legally compliant way is first, that the U.S.-Philippine defense treaty is not exclusively or perhaps even primarily about geography. It addresses the prospect of an armed attack.

Secondly, the geographic scope of the maritime disputes I believe is drastically reduced by the decision. But the decision does not touch on the issue of sovereignty over recognized land features anywhere in the South China Sea. So the tribunal, as a technical matter, based on the authority vested in it under the treaty, has pronounced on the question of whether feature X is an island with certain entitlements or a rock with more limited entitlements, or not even a rock – a submerged feature with no maritime entitlements – but in no way, shape, or form spoke to the question of whose island or whose rock that might be.

So again, with the caveat that I will defer to and be corrected by the lawyers, I don’t believe that this decision alters the question of what land feature belongs to what country. Thank you.

MODERATOR: Great. Operator, our next question.

OPERATOR: Missy Ryan, Washington Post, your line is open.

QUESTION: Hi. Do you see the ruling as a validation of the American freedom of navigation operations? And will this have any effect on the frequency or the location of those operations?

SENIOR STATE DEPARTMENT OFFICIAL: That’s a very interesting question. And again, I am not erudite enough or sufficiently schooled in the details of the decision itself to be able to answer definitively yes or no. However, the right to free navigation and overflight – which I stress is a right and entitlement of all nations, not merely of the United States – permits movement through international waters as well as movement through EEZs and in some cases through territorial seas as well. And so the redrawing or the clarification, I should say, of the maritime space in terms of EEZs or territorial seas shouldn’t, at least by that logic, have any impact on freedom of navigation.

I do think, however, that it is certainly a vindication of the principle that the United States has strongly defended, that the rights of small countries under the law are equal to the rights of large countries. It is certainly a vindication of the principle that any country can rightfully avail itself of legitimate mechanisms under international law. The tribunal, which is constituted under the treaty for this purpose, carefully examined China’s arguments that the Philippines had no right to bring this case and that the tribunal had no jurisdiction over the case. Even though China is not a party to the – did not engage as an active party to the arbitration, it submitted the equivalent of a legal pleading in the form of an extensive and very, very meticulously developed legal brief that was given the benefit of a full review by the tribunal, which clearly took it very seriously.

And so the decision that was announced today is a binding and a final determination. We think that it ought to mark the beginning of a new phase in which the parties themselves – the claimants, not only China and the Philippines – begin exploring diplomatic paths forward that will allow them to cooperate and to coexist peacefully in this extraordinarily important waterway. Thank you.

MODERATOR: Great. And now, Operator, our last question, please.

OPERATOR: Geoff Dyer with Financial Times. Please go ahead.

QUESTION: Apologies; my questions have been asked and answered already.

MODERATOR: Okay, super. Operator, we can move to the next question.

OPERATOR: Nike Ching, Voice of America. Please go ahead.

QUESTION: Thank you very much for this briefing. My question is focused on the resource management and joint development. Could you please elaborate on the point that you said about this ruling could open up opportunity for joint development? And will that be – will this be discussed during the ASEAN meeting?

Secondly, as a matter-of-fact question, now that the ruling all land features in the Spratly are rock, does that mean that any fishermens from any countries or political entities can fish there because they are not under the 200 miles of EEZ? Thank you.

SENIOR STATE DEPARTMENT OFFICIAL: Okay, thank you. So let me begin by saying very clearly that the United States is not making a prescription for what it is precisely that the claimants should reach agreement on in terms of their use of the sea, nor are we being specific or attempting to dictate terms for how they should interact, other than to say that it should be peacefully.

But the problem that the various claimants have encountered in the past when they explored options for joint development is their inability to agree on what areas were genuinely in dispute and what areas were credibly within the EEZ of a single coastal state. So nobody has been thus far willing to share with another claimant parts of the ocean that they are absolutely convinced belong to them and where they see the competing claim as utterly without merit. But now that the tribunal has defined much more clearly the definition of maritime entitlements, it may be much easier to ascertain the parts of the South China Sea that the claimants can accept are legitimately in dispute. And that’s the place where dividing 50/50 or dividing three ways makes sense and has been successfully employed elsewhere in the world and, in fact, elsewhere in the region.

I think that the other area that is now fertile ground for diplomatic creativity and exploration is the longstanding questions about what is and isn’t acceptable behavior by the parties in disputed areas and around disputed areas. So for some time, the ASEANs have been attempting not only to successfully reach agreement with China on what it would mean to fully implement the 2002 declaration of conduct they had negotiated, but the code of conduct also, which is something that they have been exploring but have made precious little headway on. It’s possible to imagine and we certainly would hope that in the aftermath of this decision, China and ASEAN can take advantage of their upcoming meetings to make accelerated progress in reaching basic understandings and finally a code of conduct pertaining to acceptable patterns and norms of behavior in the South China Sea. That would be, we would think, a major step forward towards enhanced stability and security in the region.

You are correct in pointing out that all the features named in the case brought by the Philippines to the tribunal have been determined to be rocks. That means that none of them generate EEZ. They have at most a 12 nautical mile maritime entitlement. But there are plenty of other features outside of the Spratlys which do generate an EEZ. Certainly the coastal territory of the Philippines or of Malaysia or elsewhere in the region, obviously any of the coastal states, generate an EEZ. And if it’s uninterrupted by a competing nation’s EEZ, then it extends 200 nautical miles. But there are islands in the South China Sea – just not in the Spratlys – that are presumed to be islands, and presumed therefore to generate 200 nautical – or at least generate an EEZ.

The right to fish or exploit resources in an area is a function of whether that marine area is in someone’s EEZ territorial waters, or outside of it. If it falls in the EEZ, say, of the Philippines, then by rights to fish there would require the permission of the Government of the Philippines. If the area in question was international water then no national permission is required.

Let me just take this opportunity very briefly, though, to make a plug for the importance of responsible fishery practices by all parties. The scourge of illegal, unregulated, and unreported fishing is devastating the Pacific in general and the South China Sea in particular. And we call on all nations to be responsible for their nationals’ fishing activity and to do everything in their power, including by ratifying the Port States Measures, to combat illegal fishing.

Thank you.

MODERATOR: Great. Thanks to our Senior State Department Official for this call. The embargo is now lifted. We’ll post a transcript as soon as we’re able. And thanks to all of you for joining us today. The call is complete.