No evidence that U.S. ratification of UNCLOS would convince China to back down on its SCS claims any more than U.S. enforcement of customary international law through freedom of navigation program
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Ratification of UNCLOS will neither sway China nor guarantee U.S. navigational rights in the SCS which are advanced not by membership in a treaty, but by maintaining a strong Navy, conducting persistent naval operations against China’s excessive maritime claims, supporting key U.S. allies, and adhering to long-standing principles of the customary international law of the sea.
The customary international law of the sea— which includes the principles of freedom of the seas, “innocent passage” through territorial waters, and passage rights through international straits and archipelagoes—existed long before UNCLOS was adopted in 1982. The convention merely codified and elaborated upon these widely accepted principles. While not a party to UNCLOS, the United States— unlike China—actually honors the convention’s provisions. The United States demarcates legitimate maritime boundaries, respects the rights of coastal states within their EEZs and territorial seas, and adheres domestically to the regimes regarding the contiguous zone and EEZ.
No evidence suggests that China, or any other state, would respect its obligations under UNCLOS to a greater extent if the United States became a party. Nor is there any evidence that ratification of UNCLOS would enhance U.S. military capability. The Freedom of Navigation program, the primary means of the U.S. confronting China’s exces- sive claims, does not rely on U.S. membership in UNCLOS.