U.S. adversaries are taking advantage of U.S. non-party status to UNCLOS to shape international laws in ways inimical to U.S. interests
The fact that some countries that already belong to the convention and are trying to change it through reinterpreting the terms of the treaty shows that those states understand how to convert a struggle for power into a struggle to shape the law.
China, for example, is a party to the Law of the Sea, but denies that foreign warships have the right to enjoy high seas freedom and overflight in the East China Sea. Beijing is patiently but steadily pushing to change standard interpretations of international law, integrating into its maritime strategy elements of “legal warfare” and an effective public diplomacy campaign to capture world public opinion. By declining to become a member of the treaty, the U.S. has so far ceded the opportunity to influence and shape the constitution for the oceans, yielding the stage to China, North Korea and Iran to popularize their restrictive approach to navigational rights. This is akin to refusing to engage in debate on the future direction of the U.S. Constitution because one’s political opponents have staked out objectionable positions on the issues and are engaged in “reinterpreting” its most fundamental provisions.
As the pre-eminent global maritime power, the U.S. has significant interests in the global effect of the Convention’s rules and their interpretation with many issues that of greater concern to us than to most other countries (for example, preserving freedom of navigation rights). Our adversaries view this as a weakness they can exploit and are shaping the course of the convention in ways adverse to U.S. interests while the U.S. remains on the sidelines, unable to participate in the discussion as a non-party.