Recent South China Sea case shows how U.S. non-party status to UNCLOS is allowing China to shape international law in ways inimical to U.S. interests
The South China Sea is another area of heated contestation where UNCLOS serves as the guidepost for clarity. Of notable importance is the ruling from the South China Sea arbitration that UNCLOS comprehensively allocates rights to maritime areas thereby precluding historic claims like China’s “Nine-Dash Line.” From this principle, the arbitral tribunal systematically refuted China’s extensive claims and actions in the South China Sea beyond the treaty’s carefully crafted limitations. In the view of Washington, these limitations include undue attempts to curtail the freedoms of navigation and overflight in exclusive economic zones (EEZs). Notably, China takes an opposing view and asserts the ability to prohibit foreign military operations in its claimed EEZs. Thus, although the United States remains neutral on competing claims in the South China Sea, Washington has a compelling national security interest in upholding the substance of the arbitral tribunal’s ruling.
Like U.S. claims in the Arctic, the United States’ legal rights in the South China Sea are not academic. As reported by Ronald O’Rourke, a U.S. naval affairs analyst, the EEZ legal dispute between Washington and Beijing has led to significant confrontations between Chinese and U.S. ships and aircraft in and above international waters. For example, in August 2014, a Chinese J-11 fighter dangerously intercepted a U.S. P-8A Poseidon, a naval reconnaissance aircraft, operating in the South China Sea approximately 117 nautical miles east of Hainan Island. Thanks to the arbitral tribunal’s artful debunking of the nature of Chinese-claimed maritime features and related entitlements, there is greater legal clarity on U.S. operational rights in the South China Sea. By formally joining UNCLOS, the United States will be in a stronger position to support the ruling of the arbitral tribunal in the face of Chinese opposition.
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.