U.S. can best challenge China's excessive claims as a party to UNCLOS
By ratifying the Convention, the U.S. will have the support of the international community to exert pressure on China—either for peaceful dispute resolution or to adhere to the provisions of the Convention that it too has ratified.
The United States is not a party to the Law of the Sea Convention, but, ironically, we follow it in every respect because we believe it reflects “customary international law”—the law that has built up over the years based on what states actually do in the ocean. So when it comes to exclusive economic zones, the United States interprets the convention (and customary international law) to mean exactly what it says, which is that foreign ships have freedom of navigation in other countries’ exclusive economic zones.
China has a different—and hard to justify—interpretation of the convention. It asserts that it has jurisdiction over all foreign military activity in its exclusive economic zone. Unfortunately, in debates with China and others, the United States is forced to advance our arguments about these issues from a position of weakness. Our encounters with the Chinese on this subject go something like this:
Chinese official: Your Navy ships have no right to be in our exclusive economic zone without our permission.
American official: Yes they do. The U.N. Law of the Sea Convention, which reflects customary international law, provides that other states have freedom of navigation in exclusive economic zones.
Chinese official: You are not a party to convention, so it doesn’t matter what it says—you have no standing to make that argument.
As you can see, our discussions get sidetracked from the real issues into our inexplicable nonparty status. If America ratified the convention, we’d be in a much stronger position to assert our rights and contest China’s anomalous position—that America needs China’s permission for our military assets to travel in, above, and below China’s (substantial) exclusive economic zone, up to 200 miles from its shores.
The United States claims that one of its main concerns is protection of “freedom of navigation.” But Washington purposely conflates freedom of commercial navigation with freedom to undertake military intelligence, surveillance, and reconnaissance (ISR) probes against China and others in the region. It then alleges that China’s interference with probes by these military vessels and aircraft in and over China’s exclusive economic zone (EEZ) violates the freedom of navigation. China argues that it is not challenging freedom of navigation itself but U.S. abuse of this right by its military. Beijing maintains that it has not and will not interfere with maritime trade.
Southeast Asian countries have not explicitly taken a position on this particular aspect of this complex issue, either individually or collectively. This is understandable because the debate over military freedom of navigation does not directly involve them and is essentially a bilateral U.S.-China dispute that can only be resolved by the two parties. Although the United States has asked several of its Asian allies to join FONOPs in the South China Sea, they have demurred. However, the resolution of this peculiar dispute would be warmly welcomed by Southeast Asia in general. What they fear most is that they will be used as pawns in an intensifying great power struggle.
The United States also claims it wants to maintain the rules-based order in the South China Sea. The UN Convention on the Law of the Sea (UNCLOS) is a key part of that rules-based order. The U.S. says that in addition to China, Cambodia, Malaysia, Indonesia, the Philippines, Thailand, and Vietnam are in violation of aspects of UNCLOS and it has challenged these violations militarily with FONOPs. Ironically, unlike most of Asia and indeed the world, the United States has not ratified UNCLOS and may even be violating some of its provisions. It is the U.S. itself that is undermining this Convention — and thereby the rules-based order.
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Finally, the Convention also offers the United States a diplomatic and political solution should a dispute with China arise.167 Although the United States traditionally resists dispute resolution mechanisms, it would be in its interest to embrace them here. As a non-party to the Convention, a potential dispute between China and the United States could escalate into an explosive situation. By ratifying the Convention, the U.S. will have the support of the international community to exert pressure on China—either for peaceful dispute resolution or to adhere to the provisions of the Convention that it too has ratified.168
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Militarily, the Convention provides the United States with a key strategic advantage that its armed services rely upon. That advantage is “the ability to navigate freely on, over, and under the world’s oceans.”158 In an urgent situation, the United States would be free to enter the territorial sea of any party to the Convention, including China, without losing momentum by halting to obtain permission, enter into negotiations, or weigh the benefits of violating international law.159 This is increasingly important given the recent skirmish between China and the United States on the seas. In March of 2009, U.S. ships were collecting information in what China claimed was an illegal manner in its exclusive economic zone.160 Chinese and U.S. naval ships had a brief standoff that was peacefully resolved. Because “such incidents can be expected in the future,” U.S. ratification of the Convention is essential.161 If the United States were a party to the Convention, it could argue that it was freely navigating—an activity that is permissible in China’s exclusive economic zones under the Convention.
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In order to be prepared to counter specific threats as they arise across the globe, operational commanders continuously conduct shaping activities in order to give U.S. forces the most favorable operating conditions across the spectrum of conflict. As defined by Joint Publication 3-0, shaping operations are intended to dissuade or deter adversaries, assure or solidify relationships, enhance international legitimacy, and gain multinational cooperation.51 Therefore, collectively, shaping operations are arguably the most important activity undertaken within an area of responsibility (AOR).
In the PACOM AOR, this note rings especially true. With no major combat operations currently underway, the majority of operations conducted directly support shaping operations. Furthermore, strategic guidance put forth by ADM Robert F. Willard, Commander U.S. Pacific Forces, seeks to protect and defend U.S. interests in the region while promoting regional security and deterrence of aggression; all functions within or underpinned by the effectiveness of shaping operations.52 Specifically, for the South China Sea this means maintaining forward presence, providing for extended deterrence, and concentrating on the focus areas of allies and partners, China, and transnational threats.53 In every instance, the United Nations Convention on the Law of the sea and the 1994 Implementation Agreement support those objectives. In fact, for the South China Sea, Freedom of Navigation assertions and the Proliferation Security Initiative would benefit immediately.
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Those who argue that the United States should think twice before ratifying UNCLOS because the Convention “has done nothing to avert the current impasse in the South China Sea” are only partially right.30 True, UNCLOS has not deterred Chinese regional maritime expansionism, at least in part because the United States has failed to ensure its leadership over this cornerstone of the global system. By failing to ratify UNCLOS, the United States has allowed China, which ratified it in July 1996, to pursue its own interpreta- tions and to pressure others with the mantle of institutional legitimacy. Thailand’s recent ratifi- cation statement shows this clearly and is not a healthy development for a global system predi- cated on free and open trade through a stable maritime domain. Additionally, those South China Sea states that are attempting to conform with UNCLOS norms in order to shape Chinese behaviors and limit China’s excessive claims in the South China Sea will require full American leadership and support to be successful.
Although the cracks in the foundation so far remain hairline fractures, sustained and effective American leadership over the pillars of the global system will be essential to repair the damage and to keep the foundation solid. In the South China Sea, this will require the United States to continue to encourage progress by all parties to the region’s disputes toward bringing their laws and claims into compliance with UNCLOS. Furthermore, the United States must maintain a sustained focus on this strategically important region, providing con- sistent diplomatic leadership supported by a strong regional military presence.
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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 Washing- ton 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.
For instance, Zhang Haiwen cites passages from an essay by Scott Borgerson to make the point that there is a “strong political force which is scornful of the Convention in the United States. They like to take advantage of the Convention but do not respect it.”11 Zhang writes, “It is unfair . . . that the United States, which has yet to ratify the Convention, is raising an argument on the interpretation of the Convention.”12 Reacting to what she views as Washington’s selective compliance with UNCLOS, Zhang highlights the following from Borgerson’s piece: “Opponents of the convention [UNCLOS] argue that there is no need to join the treaty [UNCLOS] because, with the world’s hegemonic navy, the United States can treat the parts of the convention it likes as customary international law, following the convention’s guidelines when it suits American interests and pursuing a unilateral course of action when it does not.”13
In these sentiments Zhang is not alone. Chinese observers have framed the dispute about UNCLOS as illustrative of U.S. hegemonic tendencies. “America’s failure to cooperate with the international community on UNCLOS is not an isolated phenomenon,” writes one commentator, “but is one element in its strategy to dominate the world and monopolize the oceans.”14