U.S. missing out on opportunity to influence ITLOS over South China Sea dispute

Second, ratifying UNCLOS will allow us to participate in and help shape dispute resolution mechanisms like the International Tribunal for the Law of the Sea. Military officers and Bush administration national security staff have highlighted the importance of shaping norms that define these territorial disputes. The Philippines, in the International Tribunal, has already raised key issues regarding China’s 9-dash line and a preliminary decision is expected sometime in 2015. Professor Dutton from the U.S. Naval War College has further emphasized that China’s interpretation of key UNCLOS provisions is part of a “coordinated legal campaign to extend maximal security jurisdiction over the East China Sea and the international airspace above it.” It is true that some dispute whether ratifying UNCLOS would materially change China’s understanding of these territorial rights. However, the U.S. cannot sit on the sidelines as ITLOS creates precedent that will become binding on 166 of the 193 states recognized by the United Nations. Customary international law is, by its very nature, subject to change with developments in state practice and understandings of legal obligation (opinio juris).[1] In a foundational case, the International Court of Justice found that treaty provisions become customary law when they are followed by specially affected states. By not signing UNCLOS, the US, certainly a specially affected state, robs its decisions of any potency as a source of customary law.

Those who assert that America can depend on the strength of its navy and existing customary international law need to face the twin realities that China is increasing its military expenditures and that American forces are overstretched in the face of sharp budget cuts. The U.S. cannot assume that China will adhere to traditional interpretations of customary international law, principles that they had little hand in crafting and do not necessarily serve China’s national interest. Indeed, China has already begun to push back against the customary freedom of navigation afforded to military craft (mainly American) in its exclusive economic zone. The U.S. should take an active role in supporting traditional interpretations of customary international law by engaging in a variety of fora, including the International Tribunal for the Law of the Sea, lest the U.S. cripple itself in this essential debate.