U.S. ratification of UNCLOS would help moderate rising Chinese naval power
U.S. ratification of UNCLOS is critical to broader U.S. strategy in the Asia Pacific and managing China's rise.
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As mentioned previously, the enhanced legitimacy gained through ratification of UNCLOS would aid PACOM in several ways. First, legitimacy gives FON assertions and diplomatic protests more weight, and leaves nations such as China constrained in their ability to challenge U.S. action. Because UNCLOS is almost universally accepted, U.S. actions would receive “tacit support” from the 160 nations party to the convention allowing commanders to more aggressively assert navigational rights within the approved framework of UNCLOS should diplomacy fail.66 In other words, after military capability, legitimacy is the second prong necessary to unilaterally conduct effective FON assertions in the SCS.
Unilateral action is always the last resort, and ratification of UNCLOS helps dramatically increase the legitimacy of U.S. FON assertions when viewed from a multinational vantage point. Rhetoric marching lock step with action will decrease PACOM difficulties convincing SCS nations that U.S. interests are not just self-serving. Although self interest plays a part, the externalities of the U.S. FON program help all coastal and maritime nations, especially those like the Philippines who do not have a strong blue water navy able to conduct these assertions on their own. Restated, ratification of the convention shows our allies and partners that we are committed to international law and a global “partnership of maritime nations sharing common goals and values.”67
Additionally, legitimacy serves to underpin United States assertions that we are committed to the rule of law; critical if the U.S. hopes to achieve maritime security goals in the SCS. Looking closely at the EP-3 incident from 2001, notably absent is any real resolution of the underlying issues. Mainly the serious disconnect between Chinese and U.S. interpretations of UNCLOS provisions as related to military activities in the EEZ. Moreover, other than saber rattling by the U.S. and China, our closest allies in the region failed to lodge strong protests against this clear violation of UNCLOS. At best this shows other regional powers at least marginally acknowledge Chinese EEZ regulations, and at worst brings into question whether international powers fully believe U.S. actions are completely legitimate. Ratification eliminates that seam and the increased legitimacy gained helps U.S. allies come to our defense should similar issues arise in the future.
Finally, legitimacy is the key to future dialog with China over freedom of navigation in the SCS. UNCLOS already provides the framework for communication and resolution of varying interpretations of convention provisions. With an economy increasingly dependent on maritime freedom in the global commons, China may be receptive to multilateral dialog and change internal laws to better conform to the UNCLOS.68 This would be a win-win for PACOM as it would significantly decrease the requirement for, and probability of miscalculation during, FON assertions. Moreover, dialog could lead to multilateral security cooperation activities with the PRC Navy, such as the Proliferation Security Initiative.69
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In a vigorous denunciation of the U.S. position on UNCLOS, Shen Dingli, the vice dean of the Department of International Studies at Fudan University, comments that for a long time the United States has been acting as the world’s primary maritime power, seeking to limit the rights and interests of littoral states but all the while penetrating their maritime space in ways that are “hegemonic and offensive.” He asserts that the United States, which has thus far refused to ratify UNCLOS, nevertheless regards itself as if it were among those states that have ratified the convention, censuring states that genuinely have. Shen writes that the United States often interprets the convention from the vantage of its own interest rather than according to the stringent standards it claims are demanded of a world leader. If this persists, Shen cautions, it will be difficult for the United States to maintain its image as a moral and legal exemplar. Instead, it will be perceived as a state that is always scheming and seeking to profit at the expense of other states.