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.
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.