Dr Mark Valencia's recent comment titled "Separating fact from fiction in South China Sea conundrum" has provided much food for thought. However, I believe that some of his points on international law warrant a reply in order to help clarify the facts, as well as fictions about the South China Sea.
First, Dr Valencia seems to agree that the United States is neutral on the issue of which state has the better claim to sovereignty over the disputed islands in the South China Sea. This is correct.
The US position is that any claim to sovereignty by any state over features in the South China Sea must be in accordance with international law. Under international law, a claim to sovereignty can be made only to offshore features that meet the definition of an "island", that is, a naturally formed area of land, surrounded by water, which is above water at high tide. Low-tide elevations or submerged features cannot be subject to appropriation.
Second, the writer asserted that the US position on maritime claims by China in the South China Sea is not neutral because the US insists that any claims to maritime jurisdiction in the South China Sea must be from land, and that this implies that any Chinese claim to jurisdictional rights within the nine-dash line is invalid.
The US is likely to have made this statement because none of the claimants has clarified the basis of their claims to maritime jurisdiction in the South China Sea. For example, none of the claimants has stated which features they believe are islands entitled to maritime zones of their own. Also, it is generally agreed that the basis of China's maritime claims in the South China Sea is especially vague.
So when the US asserts that maritime claims must be from land territory, including islands, it is simply repeating the generally accepted principle of international law that "the land dominates the sea" and that claims to rights in maritime space must be made from land territory, including islands.
The inference should not be drawn from this that the US considers the Chinese claim invalid.
Third, the most controversial of Dr Valencia's comments concerns US military activities in the South China Sea, and in particular its maritime surveillance activities in China's claimed exclusive economic zone (EEZ). He rightly wrote that "China has never challenged commercial freedom of navigation".
He went on to say: "China is objecting by word and deed to what it perceives as US abuse of this right and a threat to use force - a possible violation of the United Nations Charter - let alone Unclos (UN Convention on the Law of the Sea).
"The activities of the maritime surveillance aircraft Poseidon P8A just this past August, as well as US Navy ships Bowditch, Impeccable and Cowpens, probably collectively included active 'tickling' of China's coastal defences to provoke and observe a response, interference with shore to ship and submarine communications, abusing the consent regime for marine scientific research, and tracking China's new nuclear submarines for potential targeting."
Dr Valencia was asserting that such actions are an abuse of the consent regime for marine scientific research, an abuse of right under Unclos, and a "threat of the use of force" in possible violation of the UN Charter.
Although Dr Valencia rightly pointed out that the US has not ratified Unclos, it should be noted that the US has recognised Unclos as a codification of customary international law.
The EEZ is a functional maritime zone prescribed by Unclos in which the coastal state enjoys "sovereign rights" for the purpose of exploring, exploiting, conserving and managing the natural resources in and under the water, as well as rights with regard to other activities for the economic exploitation and exploration of the zone.