China’s Rise Is A Big Reason to Ratify the Law of the Sea Convention
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.
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.
Here is another critical point: The 163 parties to Law of the Sea Convention could choose to change the convention’s terms at any time. After all, the convention as it stands today is not the same as earlier versions. In fact, there is a marked trend now toward coastal states claiming more jurisdiction over their adjacent waters than the current convention recognizes.
Chances are that any new version of the convention called for by Brazil, China, and other emerging coastal powers would push in favor of a more “Chinese” definition of exclusive economic zone transit rights. They might call for a larger zone with more limited rights for noncoastal states.
That would be a disaster for the United States. America, with the most powerful Navy in the world and trade links that span the globe, needs full freedom of navigation in the world’s oceans. If we do not ratify the Law of the Sea, we will have a very hard time stopping that kind of change, and the longer we wait, the weaker our position will be. We should lock in the beneficial rules—the ones that we helped draft—now.
As it is the United States follows customary maritime law. But customary law can also change over time in ways we cannot control. If the world’s other coastal states such as China start claiming that U.S. military assets can’t transit their exclusive economic zones without permission, that practice could enter customary maritime law. Then the United States would have a hard time arguing that it was going to ignore customary maritime law and instead follow the terms of a treaty that it had never ratified.
China claims as their “historical waters” more than three-fourths of the South China Sea, delineated by the so-called nine–dash line, pictured below.
These claims are generally considered outrageous by everyone except the Chinese, who have kept the justification for them (and the nature of the claims themselves) ambiguous. The Obama administration has done an admirable job of standing with other Southeast Asian countries trying to resist China’s pressure in these territorial disputes. The administration has called for a multilateral process based on the rule of law, rather than the bilateral approach Beijing prefers.
But the U.S. position would be much stronger if the United States could simply say that, “The U.N. Law of the Sea Convention should govern this dispute.” As Secretary of State Hillary Clinton explained in her recent testimony before the Senate Foreign Relations Committee:
I’m sure you have followed the claims countries are making in the South China Sea. Although we do not have territory there, we have vital interests, particularly freedom of navigation. And I can report from the diplomatic trenches that as a party to the convention, we would have greater credibility in invoking the convention’s rules and a greater ability to enforce them.
The Chinese get a lot of mileage in conversations with Southeast Asian nations from the United States not being a party to the convention. (“How can the Americans tell us that Law of Sea Convention applies when they haven’t even ratified it?”) That’s why Secretary Clinton was joined by five Republican predecessors, who penned an op-ed in the Wall Street Journal this past month asking for Senate ratification.