Testimony of Andrew Erickson: Hearing on America’s Security Role in the South China Sea
As bad as things are already, they could get worse—particularly if American attention and resolve are in question. In attempting to prevent China from using military force to resolve island and maritime claims disputes in the South China Sea, the United States will increasingly face Beijing’s three-pronged trident designed precisely to preserve such a possibility. Maritime militia and Coast Guard forces will be forward deployed, possibly enveloping disputed features as part of a “Cabbage Strategy”13 that dares the U.S. military to use force against non-military personnel. Such forces would be supported by a deterrent backstop that includes both China’s navy and its “anti-navy” of land-based anti-access/area denial (A2/AD), or “counter-intervention,” forces, collectively deploying the world’s largest arsenal of ballistic and cruise missiles. In the region, only Vietnam also has a maritime militia, and the U.S. Coast Guard is not positioned to oppose China’s. Meanwhile, China’s Coast Guard is already larger than those of all its neighbors combined, and still growing rapidly.14
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.
Additionally, we need to reinforce the global institutions that the Law of the Sea was designed to create and support. This entails underwriting with our power and example peaceful dispute resolution based on international law and international institutions. Among these, the United States must ratify the UN Convention on the Law of the Sea (UNCLOS). As Peter Dutton testified before the House Foreign Affairs Committee in 2014, “American policy makers must realize that the contest for East Asia is one of both power and law. ... Acceding to [UNLCOS] and once again exercising direct leadership over the development of its rules and norms is the first and most critical step. ... My sense is that East Asian states, indeed many states around the world, are desperate for active American leadership over the norms and laws that govern legitimate international action.”25 Once again, I agree fundamentally with my colleague.
But don’t just take it from me. What’s far more important is that UNCLOS ratification is supported by:
- The current President, Secretary of State, Secretary of Defense, Chairman of the Joint Chiefs of Staff; and the heads of the U.S. Maritime Services: Navy, Marine Corps, and Coast Guard
- All their living predecessors, from Republican and Democratic administrations alike26
On how many issues does one witness this sort of unanimity across parties, agencies, and time? These people are true experts: not just on theory, but on how things play out in policy practice. There is a compelling reason for their unanimity: U.S. UNCLOS ratification is a great idea whose time has more than come.