U.S. can best influence China to abide by international rule of law as a party to UNCLOS
U.S. capability to influence China would be strengthened by a reassertion of the American leadership role over the development of international law of the sea. Since UNCLOS is the basis of modern international law of the sea, the U.S. should ratify the Convention in order to more effectively exercise this leadership from within the ranks, not just from outside them.
The credibility of the United States in the Asia Pacific is at stake on a decision whether to ratify the United Nations Convention on the Law of the Sea (UNCLOS). While there are other compelling arguments for ratification, none is as urgent as the requirement for the United States to solidify its commitment to the rule of international law, including in the Asia Pacific. This is particularly true in regard to one of the world’s most important foreign policy and security challenges: resolving disputes in the South China Sea.
This week, the Obama administration went all in on UNCLOS and sent Secretary of State Hillary Clinton, Defense Secretary Leon Panetta, and the chair of the Joint Chiefs of Staff, General Martin Dempsey, to testify before the Senate Foreign Relations Committee in support of ratification. The ball is now in the Senate’s court.
A decision to anchor the United States in UNCLOS is one that cannot be delayed. The president has wisely refocused the country on Asia to advance U.S. interests, from economic recovery and growth to regional peace and security to developing new sources of innovation. Countries around the Asia Pacific are assessing whether the United States has the political will, the pocketbook, and the commitment to further institutionalize its presence in the region. UNCLOS ratification is necessary to answer those important questions in the affirmative.
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As the Asia Pacific region continues to rise, competing claims and counter claims in the maritime domain are becoming more prominent. Nowhere is this more prevalent than in the South China Sea. Numerous claimants have asserted broad territorial and sovereignty rights over land features, sea space, and resources in the area. The United States has consistently encouraged all parties to resolve their disputes peacefully through a rules-based approach. The Convention is an important component of this rules-based approach and encourages the peaceful resolution of maritime disputes. Here again though, the effectiveness of the U.S. message is somewhat less credible than it might otherwise be, due to the fact that we are not a party to the Convention.
Some States in the USPACOM AOR have adopted deliberate strategies vis-à-vis the United States to try to manipulate international law to achieve desired ends. Such strategies are infinitely more achievable when working within the customary international law realm, versus the realm of treaty-based law. By joining the Convention, we greatly reduce this interpretive maneuver space of others and we place ourselves in a much stronger position to demand adherence by others to the rules contained in the Convention – rules that we have been following, protecting and promoting from the outside for many decades.
The US also needs to continue to bring its diplomatic power to bear to persuade and encourage parties to pursue non-coercive measures. American persuasive power would be strengthened by a reassertion of the American leadership role over the development of international law of the sea. Since UNCLOS is the basis of modern international law of the sea, the U.S. should ratify the Convention in order to more effectively exercise this leadership from within the ranks, not just from outside them. It is my view that the American policy of neutrality on the outcome of sovereignty disputes is a good one, as long as the dispute is resolved without coercion of any kind. However, the US should not be neutral about disputes over how to divide water space and the resources in them. The US, 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 guide.
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The most significant strength of international law—especially international treaty law—is its ability to establish norms of expected behavior among the community of sovereign states. This normative power of international law should not be underestimated for its ability to drive and shape the behavior of states toward stabilizing, predictable behavior. Maritime disputes in particular have benefited from the normative power of the United Nations Convention on the Law of the Sea (UNCLOS). One important normative aspect of UNCLOS was its establishment of a limit of a fully sovereign territorial sea to 12-nautical miles and creation of a 200-nautical mile exclusive economic zone. Prior to international negotiation of a final text in 1982, international claims reflected a hodgepodge of approaches. Indeed, as late as 1990, prior to the date in 1996 when UNCLOS came into force, thirteen states still claimed a 200 nautical mile territorial sea. By 2008, the normative power of UNCLOS reduced this number to seven. As of today six of these remaining seven States are party to UNCLOS, which through Article 3 explicitly limits the territorial sea to 12-nautical miles. Thus, on a global basis the number of states remaining beyond the normative reach of UNCLOS and continuing to claim a 200-nautical mile, fully sovereign territorial sea appears in fact to be only one—Peru.
In East Asia, in many ways there is a similar pattern of close conformity to the norms established in UNCLOS. China and Vietnam represent two countries that have not yet fully adopted its norms. In Vietnam’s case, its baselines remain grossly excessive. In China’s case, it too maintains numerous excessive, non-normative baseline claims, an ambiguous claim of historic or other rights within the 9-dashed line that has no basis under UNCLOS, and it remains a leaders among a small group of coastal states with non-normative perspectives on foreign military activities in the exclusive economic zone. Recent public coverage of Chinese naval activities in the exclusive economic zones of Japan and the United States suggest that perhaps this is one more way in which Chinese perspectives on international law will join the normative tide. However, even with the remaining deficiencies, both China and Vietnam are party to UNCLOS, have fully incorporated many of its other provisions into their domestic laws, and take an active part in the organizations established by this convention to further develop international law of the sea.
America has been pressing Beijing to join international frameworks of rules and norms to create a level, predictable playing field for all; to bring China into the work of tackling shared threats across the world; and to ensure that China’s rise supports rather than disrupts the global system that America and our allies created after World War II. These rules and norms support international trade and economic integration across the world and helped enable China’s astronomical economic growth in recent decades.
It’s true the People’s Republic of China has come a long way since its early days when it totally shunned the international community—and vice versa. Today China is deeply engaged in the international system on a number of levels. In international venues such as the United Nations, the International Monetary Fund, and the G-20, the Chinese show up, they are serious, and they often contribute constructively to policy questions.
Yet China still falls far short of its international commitments when it comes to World Trade Organization rules, international intellectual property standards, International Monetary Fund guidelines on its currency, and the U.N. Declaration on Human Rights, to name a few important areas.
The tables are turned on the Law of the Sea: Because of our failure to ratify the convention, the United States stands outside the international system that we champion. China, 161 other nations, and the European Union have all ratified the convention. The United States remains a “nonparty” to the convention, along with a handful of other nations, including some political pariahs such as Syria, North Korea, and Iran.
It is difficult for America to be a credible champion of rules and norms in the international system when we have not signed on to the international law that governs what can happen in the oceans that cover nearly three-fourths of the planet.
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Third, American policy makers must realize that the contest for East Asia is one of both power and law. International law supports and legitimizes the exercise of American power. It ensures that the landscape of domestic and international opinion is favorable to american objectives, policies, and actions. International law of the sea in particular, through its assurances of freedom of navigation for security as well as commercial purposes, supports the continued nature of East Asia as a maritime system. International law regarding the free use of international airspace operates similarly. accordingly, to ensure its future position in east asia the United States should take specific actions to defend the international legal architecture pertaining to the maritime and aerial commons. acceding to the United Nations Convention on the law of the sea and once again exercising direct leadership over the development of its rules and norms is the first and most critical step. The Department of State should also reenergize its limits in the seas series to reinforce, publicly and repeatedly, international law related to sea and airspace. a good place to begin the new series would be with a detailed assessment of why international law explicitly rejects China’s “U-shaped line” in the South China Sea as the basis for Chinese jurisdiction there. others could be written to describe why China’s east China sea continental-shelf claim misapplies international law and why China’s ADIZ unlawfully asserts jurisdiction in the airspace. My sense is that East Asian states, indeed many states around the world, are desperate for active american leadership with regard to the norms and laws that govern legitimate international action.
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China pursues its security through interior strategies that involve the development of rings of security around central areas of national interest. The Chinese have long felt vulnerable from the sea, and their current maritime strategy seeks to reduce that vulnerability by extending a ring of maritime control around China’s periphery. China pursues this control through a combination of force-structure development and legal assertions. Tensions arise because China’s strategy conflicts with the territorial claims, resource interests, and security concerns of other states in East Asia. China’s strategy also causes friction with the United states, which relies on freedom of navigation in maritime East Asia for American security interests and which must reassure regional allies and partners that american security guarantees are meaningful. In order to ensure the position of the United States in East Asia, american policies must focus on maintaining the region as an open, maritime system. This requires continuous development of technological advantages to ensure that the center of power in Asia does not migrate from the maritime domain to the continent. It also requires the United states to support the ability of allies, friends, and partners to resist China’s non-militarized coercion, as well as to reinforce the normative structure that supports the efficacy of maritime power in the region and around the globe.
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The United States should ratify UNCLOS because doing so would further support the rules-and-norms- based international system that Washington is rightly trying to foster—in part as a means to ensure the following: (1) that neither force, nor even the threat of force, will be employed to resolve island and maritime claims disputes in a dynamic but increasingly-tense region; and (2) that such destabilizing approaches will not be encouraged anywhere else. Ratifying UNCLOS would also eliminate a perennial source of deflective criticism by China and understandable concern on the part of U.S. allies and partners. While the U.S. stance with regard to international maritime law is obviously far more sophisticated than this—including nuanced positions regarding the far-reaching applicability of customary international law— ratifying UNCLOS would nevertheless eliminate a perception that Washington is advocating “Do as I say, not as I do.” The application of maritime law in practice is shaped over time, and China is already benefitting from U.S. vulnerability in this area—vulnerability caused by not joining 166 other nations in becoming a party to UNCLOS.
I can attest from personal experience to the extent to which China has cultivated a new generation of sharp, persistent maritime legal specialists who are active in the international arena. I believe that their concerted efforts can make a difference over time, a difference that would undermine the governance of the global maritime commons to our collective detriment.
Senate ratification of UNCLOS is now more urgent than ever so the U.S. can legally challenge China’s ongoing maritime expansionism, including China’s militaristic annexation of the Spratly Islands in the South China Sea and China’s bellicosity towards Taiwan, the Philippines, Australia, and Pacific trade routes used to transport U.S. cargo. China is also trying to restrict freedom of navigation and overflight on the high seas off its shores, contrary to UNCLOS.
Since the U.S. is not a party to UNCLOS, we are handcuffed and nothing but hypocritical when criticizing China for its UNCLOS transgressions. Troubling too, unless we ratify UNCLOS, the U.S. will be left ashore when China strikes paydirt following the issuance of deep-sea mining permits scheduled for 2023 by the UNCLOS-created International Seabed Authority.
Even with U.S. domestic political divisiveness, China’s maritime militarism and maneuvering is something Republicans and Democrats should agree to constrain by bilaterally mustering the two-thirds Senate vote needed under the U.S. Constitution to ratify this treaty.
China also needs to be closely watched in the Arctic -- another region where the U.S. is hamstrung without the force of UNCLOS behind us. China claims to be a “Near-Arctic State” and is conducting “scientific research” in the Arctic. To maintain its “Polar Silk Road” China is building its third Arctic icebreaker -- in contrast to the U.S. which now has only one old heavy icebreaker that splits its time between the Arctic and the Antarctic.
The U.S. is challenging China's aggressive moves in the South China Seas but it lacks the ability to legally enforce them in international court as a non-party to UNCLOS.
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The author defends UNCLOS as a base level of international rule of law that should be defended by all maritime states.
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