Biden government: South China Sea ruling final, legally binding

MANILA, Philippines — The United States and the Philippines discussed opportunities to strengthen their alliance as the administration of President Joe Biden reaffirmed its recognition of the 2016 arbitral ruling on the South China Sea, which it called “final and legally binding on all parties.”

US National Security Advisor Jake Sullivan recently spoke by phone with National Security Adviser Hermogenes Esperon.

“The National Security Advisors welcomed the 70th anniversary of the Mutual Defense Treaty and discussed opportunities to strengthen the US-Philippines Alliance,” NSC spokesperson Emily Horne said in a statement on Sullivan’s call with his Philippine counterpart.

According to Horne, Sullivan “reaffirmed the (Biden) Administration’s recognition that the 2016 Arbitral Tribunal ruling, pursuant to the UN Law of the Sea Convention, is final and legally binding on all parties.”

In a landmark ruling on July 12, 2016, the Hague-based Permanent Court of Arbitration (PCA) found no legal basis for China to claim historic rights to a ‘nine-dash line’ in the South China Sea and Beijing had breached the sovereign rights of the Philippines, which brought the case.

China, however, opposed and refused to honor the tribunal ruling. Beijing also refused to accept any proposal or action based on the arbitral tribunal decision that invalidated its claims to ill-defined historic rights throughout the nine-dash line.

Sullivan and Esperon also discussed the coup in Myanmar and issues related to human rights and counterterrorism.

Freedom of navigation

Regardless of identity of the South China Sea claimant, the US challenged unlawful restrictions imposed by China, Taiwan, and Vietnam requiring either permission or advance notification before a foreign military vessel, including the US, engages in “innocent passage.”

Guided-missile destroyer USS Russell (DDG 59) asserted navigational rights and freedoms in the Spratly Islands which the US Indo-Pacific Command (USINDOPACOM) said is consistent with international law.

“This freedom of navigation operation (“FONOP”) upheld the rights, freedoms and lawful uses of the sea recognized in international law by challenging unlawful restrictions on innocent passage imposed by China, Vietnam and Taiwan,” the USINDOPACOM said.

China, Vietnam, Taiwan, Malaysia, Brunei and the Philippines each claim sovereignty over some or all of the Spratly Islands.

But China, Vietnam, and Taiwan, according to USINDOPACOM, require either permission or advance notification before a foreign military vessel engages in “innocent passage” through the territorial sea.

Under international law as reflected in the Law of the Sea Convention, the ships of all States – including their warships – enjoy the right of innocent passage through the territorial sea.

“The unilateral imposition of any authorization or advance-notification requirement for innocent passage is not permitted by international law,” USINDOPACOM said.

“By engaging in innocent passage without giving prior notification to or asking permission from any of the claimants, the United States challenged these unlawful restrictions imposed by China, Taiwan, and Vietnam. The United States demonstrated that innocent passage may not be subject to such restrictions,” it added.

Unlawful and sweeping maritime claims in the South China Sea pose a serious threat to the freedom of the sea, including freedoms of navigation and overflight, free trade and unimpeded commerce, and freedom of economic opportunity for South China Sea littoral nations.

“The United States challenges excessive maritime claims around the world regardless of the identity of the claimant,” it said.

The international law of the sea as reflected in the 1982 Law of the Sea Convention provides for certain rights and freedoms and other lawful uses of the sea to all nations.

The international community, it said, has an enduring role in preserving the freedom of the seas, which is critical to global security, stability, and prosperity.

The US upholds freedom of navigation as a principle.

“As long as some countries continue to assert maritime claims that are inconsistent with international law as reflected in the 1982 Law of the Sea Convention and that purport to restrict unlawfully the rights and freedoms guaranteed to all States, the United States will continue to defend those rights and freedoms. No member of the international community should be intimidated or coerced into giving up their rights and freedoms,” the USINDOPACOM said.