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.
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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.
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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.
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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.
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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.