Europe big three condemnation of China unprecedented: experts

"This is the first time they have issued a note about this subject, about the South China Sea situation. They had spoken together before, but this is a significant move to issue a public, two-page, detailed letter to the U.N. about China's actions," said Jonathan Odom, Military Professor of International Law in the College of International and Security Studies at the George C. Marshall European Center for Security Studies.

In August last year, the E3 had issued a public statement expressing concern about the South China Sea situation but stopped short of direct criticism with a call for peace and stability in the sea, Odom noted.

"This is a very significant and positive step. It's important to see who these three nations are," he added.

The E3 has three of the seven largest economies in the world, not to mention two permanent members of the U.N. Security Council and they are speaking independently of any other powerful country, including the U.S.

"What is also important is all three nations are parties to the Law of the Sea Convention. So they speak with credibility, especially given that the international tribunal for the Law of the Sea is hosted in Germany," Odom said.

The E3’s note also stated that there was no legal ground for continental states to treat archipelagos or marine features as a whole entity, emphasizing the specific and exhaustive conditions set forth in UNCLOS for the application of straight and archipelagic baselines.

The group also stressed that land building activities or other forms of artificial transformation cannot change the classification of a feature under UNCLOS.

Steve Tsang, director of the SOAS China Institute of SOAS University of London, said he was "not aware of a similar statement by the three collectively on this subject before. So, it looks like this is the first time they are doing so in concert, though their position on the matter is known and consistent.

"The real significance is not that their joint statement will change China’s behavior, but that they feel the need to issue the statement together and now. It reflects how much more uncomfortable the three countries feel about China’s assertiveness, particularly after the full flurry of ‘wolf-warrior diplomacy’ [an aggressive style of diplomacy] since the Covid-19 pandemic," he said.

Carl Thayer of the Australian Defense Force Academy at the University of New South Wales said the E3 view the role of international law as a key component of stability in the South China Sea.

He said their joint note verbale set out their legal views on six issues - the universal application of UNCLOS, freedom of the high seas, respect for UNCLOS provisions regarding straight baselines around land features, land building not being able to change the maritime entitlements of land features, rejection of claims based on historic rights and peaceful settlement of disputes.

Isaac B. Kardon, assistant professor at the U.S Naval War College, said "this is a novel move by the E3 and represents the sharpest, clearest criticism of China's South China Sea claims and activities from any of those countries individually as well as in a group."

The statement alone is not going to change China's claims or activities, but should be taken as an indication that major European states are visibly joining the U.S. in confronting China on the South China Sea issue, he said.

A satellite photo of China-occupied Subi Reef at Vietnam's Truong Sa (Spratly) Islands, March 20, 2018. Photo by Planet Labs/Handout via Reuters.

Clear stance

Vu Thanh Ca, former head of the Research Institute of the Sea and Islands, Vietnam Administration of Seas and Islands under the Ministry of Natural Resources and Environment, said by sending the note verbale to the U.N., E3 has made a clear statement of its stance in the face of China's false claims and actions.

The E3 note is very strict, fully complies with the provisions of international law, refutes most of China's claims, sovereignty rights and jurisdictional rights which are contrary to UNCLOS in the East Sea, implicating China's future statements and actions as well.

Ca said European nations are increasingly aware of the threat posed by China, based on Beijing's ambitions and actions in defiance of international law.

China's "wolf warrior diplomacy" in relations with European countries when they have to deal with the Covid-19 pandemic has deteriorated Europe's relations with China. Therefore, Europe's activities to contain China are being carried out on multiple fronts, economic, political and diplomatic, with the South China Sea emerging as one of the key issues, Ca said.

China’s reaction

On September 18, China submitted a note of response to the E3’s note verbale.

Odom noted that China’s move came just two days after the note, which means "they realize that this was significant for those three countries to speak (out thus); otherwise, why would China have acted so quickly?"

The note may be a tactful way to shape China's negotiating posture, but "China will still likely pressure each of these countries individually not to stick their necks out for what Chinese observers characterize as an American agenda," said Kardon.

The joint statement of the E3, Tsang predicted, will be ignored by Beijing, which will continue as before in the South China Sea. "Beijing will not change even if the E3 coordinates with the U.S. and other members of the democracies," he said.

China said in its response letter that: "China’s territorial sovereignty and maritime rights and interests in the South China Sea are established in the long course of history and have been consistently upheld by successive Chinese governments. They are consistent with international law including the Charter of the United Nations and UNCLOS, and shall not be prejudiced under any circumstance by the illegal awards of the South China Sea arbitration."

China urges relevant countries to earnestly respect China’s territorial sovereignty and maritime rights and interests in the South China Sea and the joint efforts of China and ASEAN countries to maintain peace and stability in the waters, it said.

Next moves

The U.K., France and Germany could use the note verbale’s content at international forums such as General Assembly meetings or U.N. Security Council meetings.

Odom said it would be very powerful if they consistently send a message that is consistent with what has been said in the note verbale.

The group could also have bilateral talks on the matter with countries in the region like Vietnam, Malaysia, the Philippines, or even China and Japan, Odom said.

He also felt that when the opportunities arise, each member of the E3 could have their navies help protect maritime freedom in this sea area.

"I'm not familiar with Germany's activities, but I know that France and the U.K. have operated in those waters, and I hope they continue to do that, because state action involves both words and actions, including maritime presence by the navies," he said.

Tsang concurred, saying that potentially, E3 supports freedom of navigation operations in the South China Sea. But he also said that he "does not expect either the France or Germany navy to sail there any time soon."

Thayer said the E3 agree that they need to work with the countries of the Indo-Pacific region to maintain a stable rules-based order to ensure their economic prosperity. Thus they can take further actions in countering China’s claims and actions in the South China Sea.

"The E3 can lend diplomatic and political support to ASEAN as a multilateral institution and to its individual claimant states. The E3 can shape the European Union’s policies towards the Indo-Pacific Region in general and China in particular. Finally, France and the U.K. can assert their rights to freedom of the high seas by deploying naval vessels to patrol the South China Sea either individually or in combination with other states," he said.

An important step

Ca said the three European nations could intensify their cooperation with other EU members and allies to raise voice against illegal actions of China in the East Sea.

The E3 will also coordinate with the U.S., Japan, Australia and other countries with interests in the South China Sea to ensure security, including increasing operations and exchanges of warships, forming an Indo-Pacific region that is free and open.

In addition, these three countries can take economic measures to pressurize China to comply with international law.

Kardon said: "I expect this [the note verbale] to be one of several steps in coming months to form an international coalition that hopes to cause China to reconsider the costs and benefits of pressing forward with aggressive claims and practices in the South China Sea."