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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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.