U.S. ratification of UNCLOS won't help resolve disputes in South China Seas
Ratification of UNCLOS will neither sway China nor guarantee U.S. navigational rights in the South China Seas any more than continued U.S. naval presence through the Freedom of Navigation program.
[ Page 17-18 ]
America is the dominant hegemonic Power in Asia Pacific and possesses the dominant power projection38 capabilities in the region and seems committed to continue using them in a restrained manner.39 The littoral counties in the region, especially China, however, are developing the ability to deploy forces with the military capacity to threaten U.S. power projections. In particular, China‘s rapidly increasing economic power has caused widespread concern over China‘s ambitions to enhance ―blue water capability‖ for influence beyond its borders. These developments in China are of special concern to the US national interests, especially in the South-China Sea.40 In this regard, the recent statement by the Secretary of State Hillary Clinton41 in the ASEAN Regional Forum caused a lot of diplomatic tensions between the US and China. The said statement referred to the US interests in resolving territorial disputes off China‘s southern coast as ―a leading diplomatic priority,‖ thereby indicating the US intention to intercede in a region.
However, this is not the first time that the US has shown its interest in the maritime affairs in the Asia-pacific region, especially in South China Sea. The 2009 Impeccable incident is reflective of the US intensions to maintain its hegemony through power projections, even by circumventing the marine scientific research (MSR) provisions of the 1982 LOS Convention.
In the light of these observations, the US accession to the LOS Convention will have significant implications for the US interest in the South China Sea. Most notably, the LOS Convention would be applicable to the US completely as it does not allow making reservations at the time of accession. In addition, the US would be obliged to refrain from any acts that would defeat the object and purpose of the convention. Thus, by becoming a party to the Convention, the US would be constrained in the freedom to take inapt actions in the South China Sea without giving due considerations to its possible legal consequences. This may diminish the unchallenged naval power of the US in the Asia-Pacific.
[ Page 108-109 ]
Each side devises elaborate argumentation to justify a position by reference to terms and passages from UNCLOS, implying a common acquiescence to the primacy of inter- national law generally and to the UNCLOS regime specifically. Neither side challenges the legitimacy of international law in general or UNCLOS in specific. That the two disputants contend in such civil, legalistic discourse might encourage one to conclude that reason has surpassed passion, except that vessels from each state, dispatched by authorities determined to defend a principled position, meet in defiant encounters at sea, jeopardizing maritime harmony, menacing bilateral relations, and endangering the lives of duty-bound sailors. Thus, it provides only modest comfort that conversation about the EEZ is possible, even if it is through dialogue that both sides prefer to resolve the present controversy.
A resolution of the EEZ issue is unlikely to emerge from a discussion of law, because the law is not really the problem. Sino-U.S. relations are strained because of the ways in which the strategic aims of Beijing and Washington collide and chafe against one another during a period of rapid transition of stature and perceived power.
Simply put, the PRC—reflexively anxious about its comparative weakness in the face of far more robust U.S. military power—worries about how the United States and its allies may undermine those assets that the PRC has managed to develop to offset the existing military asymmetry between them. Beijing seems committed to expanding strategic depth by raising the cost to the United States of operating close to the PRC’s shores.
In line with this objective, the PRC evidently resents U.S. intelligence and surveillance activities. It hopes to push foreign forces as far from shore as is possible, especially those with prying eyes capable of gathering information about assets Beijing prefers to keep secret.
[ Page 6-7 ]
Ratification of UNCLOS will neither sway China nor guarantee U.S. navigational rights in the SCS which are advanced not by membership in a treaty, but by maintaining a strong Navy, conducting persistent naval operations against China’s excessive maritime claims, supporting key U.S. allies, and adhering to long-standing principles of the customary international law of the sea.
The customary international law of the sea— which includes the principles of freedom of the seas, “innocent passage” through territorial waters, and passage rights through international straits and archipelagoes—existed long before UNCLOS was adopted in 1982. The convention merely codified and elaborated upon these widely accepted principles. While not a party to UNCLOS, the United States— unlike China—actually honors the convention’s provisions. The United States demarcates legitimate maritime boundaries, respects the rights of coastal states within their EEZs and territorial seas, and adheres domestically to the regimes regarding the contiguous zone and EEZ.
No evidence suggests that China, or any other state, would respect its obligations under UNCLOS to a greater extent if the United States became a party. Nor is there any evidence that ratification of UNCLOS would enhance U.S. military capability. The Freedom of Navigation program, the primary means of the U.S. confronting China’s exces- sive claims, does not rely on U.S. membership in UNCLOS.
[ Page 8 ]
Regardless, the United States cannot afford to wait to join UNCLOS before bringing a decisive res- olution to the challenges in the SCS. The Senate Foreign relations Committee has taken the convention under consideration on many occasions, including hearings in 1994, 2003, 2004, and 2007. The committee held four hearings in 2012, but then-chairman Senator John Kerry (D–MA) did not attempt to offer the convention for a committee vote due to stiff opposition by the convention’s detractors.
There is no realistic possibility that the United States will ratify UNCLOS in the near term, or perhaps ever. U.S. policymakers should instead concentrate their efforts on developing and implementing a specific strategy to address intractable problems, such as those the United States faces in the SCS.
[ Page 34 ]
Opponents of the United States becoming a party to UNCLOS argue or might argue one or more of the following:
- China’s ability to cite international law (including UNCLOS) in defending its position on whether coastal states have a right to regulate foreign military activities in their EEZs73 shows that UNCLOS does not adequately protect U.S. interests relating to navigational rights in EEZs; the United States should not help lock this inadequate description of navigational rights into permanent international law by becoming a party to the treaty.
- The United States becoming a party to the treaty would do little to help resolve maritime territorial disputes in the SCS and ECS, in part because China’s maritime territorial claims, such as those depicted in the map of the nine-dash line, predate and go well beyond what is allowed under the treaty and appear rooted in arguments that are outside the treaty.
- The United States can adequately support the ASEAN countries and Japan in matters relating to maritime territorial disputes in the SCS and ECS in other ways, without becoming a party to the treaty.
- The United States can continue to defend its positions on navigational rights on the high seas by citing customary international law, by demonstrating those rights with U.S. naval deployments (including those conducted under the FON program), and by having allies and partners defend the U.S. position on the EEZ issue at meetings of UNCLOS parties.
I understand the force of this argument. The U.S. already adheres the key principles in UNCLOS, so joining UNCLOS will allow the U.S. to push back more effectively against China’s aggressive and expansionary activities.
But is there really any evidence that formal accession would change China’s view of the U.S. position on UNCLOS issues? China is already a member of UNCLOS and other countries (like Japan and the Philippines) are also members of UNCLOS. But I don’t think UNCLOS has really bolstered their effectiveness in pushing back against China. Moreover, as Professor Dutton explains, China has a radically different interpretation of its authority to regulate foreign ships and aircraft in its Exclusive Economic Zone under UNCLOS. How will joining UNCLOS help the U.S. change China’s interpretation of UNCLOS?
As a practical matter, UNCLOS does have a way of compelling member states to conform their interpretations: mandatory dispute settlement in the International Tribunal for the Law of the Sea or in Annex VII arbitration. But as China and Russia have demonstrated in recent years, these mechanisms are not likely to be a serious constraint, especially on questions that touch sovereignty (which is how China frames most of its activities). I suppose if the U.S. joins UNCLOS, and subjects itself to UNCLOS dispute settlement, that might make a difference. But I don’t think it would be a very large one (after all, Japan, China, and the Philippines are all already subject to UNCLOS dispute settlement, which has accomplished little so far).
First, while the United States has a strong interest in peaceful resolution of competing territorial claims in the South China Sea, it is not itself a claimant, and thus UNCLOS would provide no additional tools for the United States to use in addressing disputes in the South China Sea. While U.S. ratification of UNCLOS would allow U.S. nationals to serve on arbitration panels, such representatives are expected to exercise independent reasoning and do not take instructions from member governments.
If anything, the presence of an American on the panel would have played to the suspicions of hardliners in China who view international legal regimes as a vehicle for advancing U.S. interests. If this sounds farfetched, consider that the Chinese ambassador to ASEAN recently accused Washington of “staying behind the arbitration case as the manipulator, and doing whatever it can to ensure that the Philippines wins the case.”
Second, the only thing that the United States would achieve by joining UNCLOS—at least from the perspective of modifying Chinese behavior—would be to deprive Beijing of its talking point that U.S. exhortations to claimant states to comply with UNCLOS amount to “hypocrisy.” Deprived of this talking point, there’s no reason to believe that Beijing would submit to the tribunal’s authority. Although U.S. ratification of UNCLOS would be a boost to the prestige of the convention, Beijing has evidently made a calculated judgment that defending its perceived sovereignty and the strategic value of physical control of large stretches of the South China Sea outweighs whatever reputational damage it suffers as a result of flouting the tribunal’s decision.
There are many reasons why ratification of UNCLOS serves U.S. interests—not least of which, the convention would allow the United States to make claims on the arctic seabed beyond its current exclusive economic zone. Perhaps most importantly, as Sen. Ben Cardin recently pointed out, ratification of UNCLOS would help the United States continue to “build a world of rules, law, and order.”
None of these benefits changes the fact that Senate ratification of the treaty will result only in a slight modification to Chinese rhetoric, and no change in Chinese policy. While Washington and most Southeast Asian nations would like to see tensions in the South China Sea resolved through application of shared rules and norms, Beijing has shown its determination to settle the matter through power politics. To be sure, the United States must continue to show that international law is the way to peacefully resolve these disputes—but the United States joining UNCLOS will not have a tangible impact on that effort.
Commander of U.S. Pacific Command (PACOM) Admiral Robert F. Willard testified this week before the Senate Armed Services Committee that “…China does not make legal claims to this entire body of water…” (the several bodies of water that China calls its “near seas”). When it comes to at least one of these seas—the South China Sea—the statement is meaningless.
Admiral Willard notes—and he would know—that China does “seek to restrict or exclude foreign, in particular, U.S., military maritime and air activities” in the South China Sea. A number of incidents over the last couple years point vividly to this problem. And China often uses legal arguments to explain its behavior.
But China’s underlying sovereignty claims are not just “legal.” They are historical. In 2009, the Chinese circulated the famous nine-dash map that lays out its historical claim to virtually all of the South China Sea. That provoked a complaint from Indonesia. Indonesia is not generally considered one of the claimants in the South China Sea dispute. However, it objected because while it sees no threat in China’s legal claims, the historical claims represented by the nine-dash map include Indonesian waters.
Now the Philippines has formally registered an objection to the Chinese sovereignty grab, to which the Chinese have responded by citing both the legal and historical bases for their claims.
This brings us back to Admiral Willard’s statement. The legal basis of China’s claims to the South China Sea is meaningless as long as it maintains an alternative historical case. This also means that UNCLOS—which Admiral Willard gently urged the Senate to ratify—is irrelevant to settlement of the dispute. In fact, the treaty’s filing deadlines and apparent wiggle room on things like “Exclusive Economic Zones” (EEZ) and baseline determinations seem to have exacerbated the conflict.
The authors argue that while there are good reasons for the Senate to ratify UNCLOS, pushing it to advance U.S. policy in the South China Seas is not one of them as it would result "only in a slight modification to Chinese rhetoric, and no change in Chinese policy."
[ More ]
The author disputes the idea brough up in recent testimony that the U.S. could improve its bargaining position in negotiating a resolution to the South China Seas dispute by ratifying UNCLOS.
[ More ]