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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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.
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Fourth, remain neutral about sovereignty, but not about drawing boundaries at sea. The American policy of neutrality on the outcome of sovereignty disputes—that is disputes over the ownership of islands, rocks, and reefs--is a good one, as long as the dispute is resolved without the use of force. Our refusal to be drawn into conflict with a rising power over a piece of territory that is relatively trivial is an important aspect of regional and global stability. On the other hand, the United States has a strong interest in seeing the provisions of UNCLOS strengthened, since they provide the only near-universal framework that decreases resource and security disputes in the maritime domain. As such, the American policy should be to consistently reinforce UNCLOS as the basis for resource boundaries in the South China Sea. The United States Department of State should issue a public, official statement that challenges any right for China to use the 9-dashed as a basis for maritime boundary making. China must not be allowed to use its view of history or its coercive power or any other basis to alter the existing rule set that has provided global stability in what otherwise might have been a very contentious domain. International law must be the only basis for all states to make resource claims in the South China Sea. The United States, indeed all countries, have a vital interest in the strength of the methods of UNCLOS for allocating coastal state rights to resource zones. Not history, not power, but international law must be the standard.
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Additionally, we need to reinforce the global institutions that the Law of the Sea was designed to create and support. This entails underwriting with our power and example peaceful dispute resolution based on international law and international institutions. Among these, the United States must ratify the UN Convention on the Law of the Sea (UNCLOS). As Peter Dutton testified before the House Foreign Affairs Committee in 2014, “American policy makers must realize that the contest for East Asia is one of both power and law. ... Acceding to [UNLCOS] and once again exercising direct leadership over the development of its rules and norms is the first and most critical step. ... 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.”25 Once again, I agree fundamentally with my colleague.
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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 Washing- ton 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.
For instance, Zhang Haiwen cites passages from an essay by Scott Borgerson to make the point that there is a “strong political force which is scornful of the Convention in the United States. They like to take advantage of the Convention but do not respect it.”11 Zhang writes, “It is unfair . . . that the United States, which has yet to ratify the Convention, is raising an argument on the interpretation of the Convention.”12 Reacting to what she views as Washington’s selective compliance with UNCLOS, Zhang highlights the following from Borgerson’s piece: “Opponents of the convention [UNCLOS] argue that there is no need to join the treaty [UNCLOS] because, with the world’s hegemonic navy, the United States can treat the parts of the convention it likes as customary international law, following the convention’s guidelines when it suits American interests and pursuing a unilateral course of action when it does not.”13
In these sentiments Zhang is not alone. Chinese observers have framed the dispute about UNCLOS as illustrative of U.S. hegemonic tendencies. “America’s failure to cooperate with the international community on UNCLOS is not an isolated phenomenon,” writes one commentator, “but is one element in its strategy to dominate the world and monopolize the oceans.”14
Ultimately, peaceful resolution of competing maritime claims in the South China Sea will require multilateral negotiations in conformity with international law, as Secretary of State Hillary Clinton has observed. The brass ring is a binding Code of Conduct among rival claimants, which has proved elusive. Achieving this result will require at least two shifts. The first is a united front among the members of the Association of Southeast Asian Nations (ASEAN), whose summit in Pnomn Penh in July collapsed into acrimony on this question, thanks to Chinese pressure on the Cambodian hosts. Cambodia gets a second chance to get it right this month, when it hosts the final major meeting of its ASEAN chairmanship, which will consider an Indonesian-proposed draft of the code. The second is real movement from China. At stake in the South China Sea is the entire concept of China’s peaceful rise. Recent weeks provide a glimmer of hope in this regard, including Beijing’s endorsement in mid-October of a joint declaration with ASEAN counterparts, which among other provisions commits the parties to peaceful resolution of disputes and the ultimate goal of a code of conduct. The end of China’s protracted leadership transition , which will officially begin during the eighteenth Communist Party Conference on November 8 may allow a mellowing of recent Chinese behavior, giving the incoming government of Xi Jinping an opportunity to rein in the more assertive positions of the Peoples Liberation Army (PLA) on maritime issues.
The Obama administration should encourage all parties to move as promptly as possible toward a binding code of conduct. To be sure, as Tom Wright points out, the United States would have much more diplomatic credibility and influence if it were actually a party to UNCLOS, which would demonstrate that it is willing to play by the same rules that it seeks for others. In this regard, the upcoming lame duck session of Congress would be an ideal time for the Senate to finally ratify UNCLOS.
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U.S. economic interests face two problems then in the South China Sea: the UNCLOS rules concerning exploitation of the high seas, and how much of the high seas are available in the area. The United States has not formally ratified UNCLOS for several reasons, but objections to Part XI covering exploitation of the deep seabed is a main one because its provisions are considered statist and not free-market oriented, and the ISA is expensive and inefficient.473 Opponents also see little gain in the South China Sea for U.S. ratifica- tion since the overlapping disputes would not only remain but have no compulsory settlement agreement, and maritime jurisdiction issues like freedom of navigation are exempt from mandatory arbitration mechanisms. Thus these political issues do not change whether the United States is a member or not.474 The irony of opposing U.S. entry to UNCLOS is that in the nearly 30 years since it was written, no country or corporation, including the United States, has been successful in commercially mining for high seas min- eral resources, but the United States, which has the world’s largest aggregate EEZ, benefits from the eco- nomic and environmental protection of its littoral that UNCLOS provides.475 By its present stance, the United States gains freedom from the ISA to potentially mine seabed resources some day since it does not need to be a member of UNCLOS to exploit international waters under customary law, but it loses the advantages of being inside the Law of the Sea Treaty system to guide it and employ its provisions for future U.S. benefit.
UNCLOS has become an important barometer of U.S. power in the Pacific Ocean. At stake is the country's capacity to uphold, preserve, and strengthen a rules-based order in Asia as China rises. In July 2010, at the ASEAN Regional Forum (ARF) in Hanoi, U.S. Secretary of State Hillary Clinton stated that the United States believes that all maritime territorial disputes in the South China Sea must be resolved multilaterally and in accordance with international law. It is a policy that she repeated at the deadlocked 2012 ARF in Cambodia. For its part, China objected to the "multilateralization" of maritime disputes then and continues to do so now. Beijing believes that it is more likely to make gains if it strikes individual bargains with weaker powers, including Manila and Hanoi. The other capitals realize this, which is why they welcomed Clinton's commitment to multilateralism.
A strong multilateral structure in Asia is a prerequisite to balancing Chinese assertiveness. The United States should not take sides in other countries' disputes, but it can and must insist upon a strong regional framework to ensure that a rising China does not destabilize the status quo. On this issue, the 34 senators who oppose the treaty are taking Beijing's side. They are speaking up for the bilateralism and unilateralism that will harm the U.S.-led regional order in the Asia-Pacific. No doubt, news of Ayotte and Portman's recent declarations was greeted warmly in Beijing. U.S. allies and strategic partners in South East Asia, meanwhile, will be even more doubtful of Washington's capacity to maintain its leadership role. It is strategic multilateralism in the Atlantic that helped the United States to win the twentieth century. Without concordant multilateralism in the Asia-Pacific, it will not fare so well in the twenty-first.
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Open economic access to the South China Sea maritime commons is a second U.S. interest, but one for which the solution may diverge from freedom of navigation considerations. Access to the resources of the high seas is an important enough U.S. interest to stall the ratification of UNCLOS for nearly 20 years in order to avoid the restrictions imposed on seabed mining, although this activity has yet to become commercially viable. While the United States remains out- side the treaty, however, it holds less influence over how maritime law is interpreted and evolves, and thus is at a disadvantage to shape events like whether the South China Sea becomes a wholly divided and claimed sea. Such arrangements as a joint development zone or a joint management zone could stabilize the area to provide peace and the dividends of economic development for its participants. This could detract from potential U.S. economic development activities, depending on the arrangements, but supports U.S. security and economic prosperity goals for the region as well as attains a diplomatic settlement through recognized international law.
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Ratifying LOSC will give the United States added legitimacy as it seeks to defend the interests of allies and partners in the Asia Pacific, particularly countries involved in disputes over the South China Sea. Tensions between China and Southeast Asian states over historical territorial claims and jurisdiction over potentially lucrative seabed natural resources are escalating because of increasingly assertive behavior on all sides. LOSC is central to mitigating tensions and avoiding conflict in the South China Sea, which involve territory demarcation, maritime navigation and other issues covered by the convention. Without ratifying LOSC, the United States will be unable to credibly encourage efforts of allies like the Philippines as it attempts to mediate a dispute with China over the joint development of resources in the South China Sea using the LOSC dispute settlement mechanism.