U.S. ability to peacefully resolve South China Sea disputes compromised by its non-party status to UNCLOS
As a signatory to UNCLOS, the PRC occasionally implies that its interpretations should trump those of the United States, which has yet to ratify the convention that Washington nevertheless employs as a bludgeon against Beijing’s claims that UNCLOS permits limitations by coastal states on foreign military activities in the EEZ. The message is that even though the United States asserts its compliance with UNCLOS, because it has not undertaken to be formally bound by the convention it has no standing to impose its self- regarding interpretations of the regime on those states that have ratified it.
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The differing views held by the United States and China over maritime boundaries has great significance for U.S. national security. The military forces of the United States provide a critical deterrent against foreign aggression that might affect the global flow of commerce. In order for U.S. forces to be a credible deterrent they must have access. In its analysis of the national security implications inherent in the UNCLOS convention, the U.S. Department of Defense emphatically stated that, “Assurance that key sea and air lines of communication will remain open as a matter of international legal right and will not become contingent upon approval by coastal or island nations is an essential requirement for implementing our national security strategy.”49 China’s policies and actions place this freedom at risk. If they are allowed to prevail in their claims, the negative operational consequences for USPACOM are tremendous.
If China is allowed to prevail in its claims of sovereign jurisdiction over enormous ocean areas, this would seriously degrade the ability of U.S. forces to conduct peacetime operations in a critical region. Not only would the U.S. Air Force and Navy be unable to operate in much of the south-east Asian littoral, but forces responding to contingencies in other regions could be forced to take alternate routes that would significantly restrict the ability of the U.S. to quickly respond to a crisis.50
Second, without U.S. presence, important partners such as Singapore and the Philippines would no longer benefit from the stabilizing influence that the presence of U.S. forces provides. Instead, as the emerging naval power in the region, Chinese ships would be free to exert their influence unchecked.
Lastly, any freedom of navigation operations conducted by U.S. forces take on a new level of risk as the mere presence of U.S. forces in China’s claimed EEZ could result in hostilities. U.S. forces and Allies, like Australia, routinely conduct freedom of navigation (FON) operations in order to oppose illegitimate maritime claims. These operations are not intended to be antagonistic. Rather, they are intended to serve as just one element in the discourse between nations.51 However, with China’s extreme sensitivity to sovereignty, most U.S. FON operations will almost certainly be viewed as blatantly provocative.52
Second, ratifying UNCLOS will allow us to participate in and help shape dispute resolution mechanisms like the International Tribunal for the Law of the Sea. Military officers and Bush administration national security staff have highlighted the importance of shaping norms that define these territorial disputes. The Philippines, in the International Tribunal, has already raised key issues regarding China’s 9-dash line and a preliminary decision is expected sometime in 2015. Professor Dutton from the U.S. Naval War College has further emphasized that China’s interpretation of key UNCLOS provisions is part of a “coordinated legal campaign to extend maximal security jurisdiction over the East China Sea and the international airspace above it.” It is true that some dispute whether ratifying UNCLOS would materially change China’s understanding of these territorial rights. However, the U.S. cannot sit on the sidelines as ITLOS creates precedent that will become binding on 166 of the 193 states recognized by the United Nations. Customary international law is, by its very nature, subject to change with developments in state practice and understandings of legal obligation (opinio juris). In a foundational case, the International Court of Justice found that treaty provisions become customary law when they are followed by specially affected states. By not signing UNCLOS, the US, certainly a specially affected state, robs its decisions of any potency as a source of customary law.
Those who assert that America can depend on the strength of its navy and existing customary international law need to face the twin realities that China is increasing its military expenditures and that American forces are overstretched in the face of sharp budget cuts. The U.S. cannot assume that China will adhere to traditional interpretations of customary international law, principles that they had little hand in crafting and do not necessarily serve China’s national interest. Indeed, China has already begun to push back against the customary freedom of navigation afforded to military craft (mainly American) in its exclusive economic zone. The U.S. should take an active role in supporting traditional interpretations of customary international law by engaging in a variety of fora, including the International Tribunal for the Law of the Sea, lest the U.S. cripple itself in this essential debate.
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The broader U.S. strategy for the South China Sea must follow three tracks. First, protect the rights of navigation for all through both diplomacy and demonstration. Second, work with the People’s Liberation Army Navy to help it recognize that China’s long-term interest in freedom of navigation is far more important to its national security than short-term efforts to control navigation in the EEZ. Third, promote regional resolution of jurisdictional claims over islands and seafloor resources of the South China Sea based on the principles of UNCLOS.
To this end, the United States must also recognize that regional influence depends not just on power but on its judicious application, as noted by Professor Barry Posen:
So command of the commons will provide more influence, and prove more militarily lethal, if others can be convinced that the United States is more interested in constraining regional aggressors than in achieving regional dominance.10
It is important to keep in mind that our friends and allies do not want to see the United States have an un- bounded role in the South China Sea. For them, UNCLOS is important in keeping U.S. involvement in balance with regional interests. If the United States fails to accept the convention’s obligations and limits as well as its rights, then its reputation, even with its allies, will be diminished.
In spite of President Reagan’s endorsement of the provisions related to navigation, the EEZ, and the continental shelf, the credibility of the United States as the champion of international law is weakened by its own failure to join UNCLOS. Joining would strengthen U.S. leadership at sea, and that will serve the interests of all parties in the South China Sea.
U.S. policy is, and should remain, to demonstrate and demand adherence to the rights of navigation and over- flight and promote regional resolution of issues of territorial and resource jurisdiction defined in UNCLOS. An important element of this strategy is for the United States to join the convention and re-establish itself as a champion of the international rule of law at sea while we enjoy the rights recognized by UNCLOS.
Third, aside from ad hoc diplomacy and negotiations within Association for South East Asian Nations (ASEAN), whose decisions require unanimity, UNCLOS is one of the few multilateral mechanisms that can directly address territorial disputes in the seas. General Dempsey, Chairman of the Joint Chiefs of Staff, noted that ratifying UNCLOS, “gives us another tool to effectively resolve conflict at every level.” While it is true that ratifying UNCLOS hasn’t vindicated Japan, for example, in its dispute with China, the treaty has only enjoyed widespread support for sixteen years. Given this short history, it is almost surprising that the Philippines has already asserted this type of claim against China through UNCLOS to bolster its relatively weak strategic position. UNCLOS, therefore, is useful insofar as it provides another venue through which the U.S. could press its claims in the region. American treaty obligations with both Japan and the Philippines give us a strong interest in legitimizing and shaping these new multilateral dispute resolution mechanisms.
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The United States depends on support from ASEAN members to maintain effective operations in the South China Sea, so its responses to China must respect regional interests and concerns. While the United States is seen by the member states as a friend, they also know that U.S. interests are at times different from their own. The United States cannot take their support for granted. To do so may not just weaken joint responses to Chinese aggressiveness; it may put other multilateral maritime initiatives at risk, such as the Proliferation Security Initiative and anti-piracy resolutions in the U.N. Security Council.
ASEAN member states must be assured that the United States will provide a balance to growing power without becoming a threat to their interests. The United States can make this clear by emphasizing that its actions will conform with UNCLOS. As long as U.S. actions are compatible with and in support of the convention, ASEAN states will feel secure in U.S. maritime activities in their region, and China will know that there are limits that bind U.S. activities in the region.
While the credibility of the U.S. commitment to the convention is currently undercut by the country’s non- party status, this can be overcome by completing the effort of the previous administration to secure the advice and consent of the Senate to join the convention and then submit its ratification.8
Washington’s outsider position undercuts its message as it urges China to respect global maritime norms. After all, China ratified UNCLOS in 1996, even if Beijing now says it rejects any judgment by the Permanent Court of Arbitration. In a speech in Washington earlier this month, retired Chinese top diplomat Dai Bingguo accused the U.S. of “heavy-handed intervention” in the South China Sea. “Accidents could happen,” said the still influential Chinese Communist Party official, “and the South China Sea might sink into chaos and so might the entirety of Asia.” Still, even as Beijing has launched a public-relations blitz ahead of the July 12 ruling, Chinese state media and diplomatic statements have not highlighted America’s AWOL status in UNCLOS. Perhaps critiquing the U.S. absence is harder when China itself is distancing itself from one of the treaty’s utilized tribunals.
It’s true that even if Congress hasn’t ratified UNCLOS, the U.S. Navy, which is the world’s largest, adheres to its principles. American top brass openly support U.S. ratification. “I think that in the 21st century our moral standing is affected by the fact that we are not a signatory to UNCLOS,” said Admiral Harry Harris, head of the U.S. Pacific Command, in testimony to the House Armed Services Committee earlier this year.
In a June speech at the U.S. Air Force Academy, U.S. President Barack Obama urged Congress to move ahead on UNCLOS. “If we’re truly concerned about China’s actions in the South China Sea,” he said in his commencement address, “the Senate should help strengthen our case by approving the Law of the Sea convention, as our military leaders have urged.” But ratifying the convention will require a two-thirds majority in the Senate, an all but impossibility particularly in this contentious election year. The U.S. Navy will continue to ply the high seas, acting as the world’s oceanic policeman by engaging in freedom-of-navigation exercises to ensure open trade routes. But American hypocrisy when it comes to maritime rule of law looks likely to endure.
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Third, American policy makers must realize that the contest for East Asia is one of both power and law. International law supports and legitimizes the exercise of American power. It ensures that the landscape of domestic and international opinion is favorable to American objectives, policies, and actions. International law of the sea in particular, through its assurances of freedom of navigation for security as well as commercial purposes, supports the continued nature of East Asia as a maritime system. International law regarding the free use of international airspace operates similarly. Accordingly, to ensure its future position in East Asia the United States should take specific actions to defend the international legal architecture pertaining to the maritime and aerial commons. Acceding to the United Nations Convention on the Law of the Sea and once again exercising direct leadership over the development of its rules and norms is the first and most critical step. The Department of State should also re-energize its Limits in the Seas series to publicly and repeatedly reinforce international law related to sea and airspace. A good place to begin the new series would be with a detailed assessment of why international law explicitly rejects China’s U-shaped line in the South China Sea as the basis for Chinese jurisdiction there. Others could be written to describe why China’s East China Sea continental shelf claim misapplies international law and why China’s ADIZ unlawfully asserts jurisdiction in the airspace. My sense is that East Asian states, indeed many states around the world, are desperate for active American leadership over the norms and laws that govern legitimate international action.
Our failure to ratify the treaty also undermines our ability to fully work with our allies and partners in the South China Sea region. If we are not party to UNCLOS, it is difficult for the United States to rely on the treaty to determine the legal entitlements of mid-ocean features, which claims are lawful, and what exactly constitutes the high seas. It’s also harder for us to suggest it as the basis for resolving claims and arbitrating disputes — or to rely on EEZs drawn under UNCLOS’s auspices. Moreover, a broad set of stakeholders including the U.S. Chamber of Commerce, environmental organizations, the military, and industry specific trade groups representing commercial fishing, freight shipping and mineral extraction all support U.S. accession to the treaty. Perhaps most importantly, our military leaders have stated that U.S. participation will help them maintain navigational rights — and with less risk to the men and women they command.
It has been long-standing policy that the United States does not take a position on the ultimate disposition of the competing maritime and territorial claims made by China and other countries in the South China Sea. But we do have a position on how the claims are adjudicated, and on how questions related to the different features — reefs, rocks, shoals and islands — are classified under international law.
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Supporters of the Convention do not disagree that China’s ongoing assertiveness to territory on and beneath the South China Sea is cause for concern, if not a challenge to international norms regarding freedom of the seas, said Caitlyn Antrim, executive director of the Rule of Law Committee for the Oceans, a nonpartisan educational group whose purpose is to inform public discourse regarding U.S. interests in accession to the Convention.
Antrim noted, however, that the United States could better help the situation by acceding to the Law of the Sea Convention, whereby it would have more influence in supporting the coastal states in that region.
An area of 650,000 square miles with a sea floor believed to be rich in deposits of oil and gas, and host to the world’s second busiest sea lanes, the South China Sea is an example of “creeping jurisdiction,” said Antrim, which is represented, in the case of China, by an attempt to increase its control and extend its authority at the expense of its neighbors in Southeast Asia, as well as the United States, Japan and South Korea.
“The Law of the Sea is our lever,” she told Seapower. “We can’t go in there and continually force our way. We need to have a legal regime so that everything works smoothly. All of the other countries support the Law of the Sea, and we get to add to that strength, but it’s a little difficult when we aren’t a party to it.”
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In my personal opinion, the United States should join the Convention as a State Party. Legally, accession would enable the nation to enjoy the legal benefits that the Convention affords a party as a matter of conventional law, with more durable certainty. Politically, US accession would further demonstrate to other nations the US commitment to the rules-based and balanced approach of rights and responsibilities that the Convention reflects. More important than what I personally believe, the executive branch of the US Government supports and has long supported US accession to the Convention, in particular when discussing the ongoing situation in the waters of East Asia. In May of this year, President Obama acknowledged this challenge for the United States in his speech before the graduating cadets at the US Military Academy.19 He stated: “You see, American influence is always stronger when we lead by example ... We can’t try to resolve problems in the South China Sea when we have refused to make sure that the Law of the Sea Convention is rati ed by our United States Senate, despite the fact that our top military leaders say the treaty advances our national security.”
In short, the noticeable absence of the United States in the roll-call of mem- ber-states to the Law of the Sea Convention continues to handicap US efforts in the international community to promote the rules-based approach reflected in the Convention, particularly in the ways it can aid in resolving maritime-related disputes in the South China Sea. Yet, as a US citizen, I fully respect the US Senate’s constitutional role in the treaty-making process.