Maritime disputes with China won't be solved by legal wrangling but asserting rights through diplomacy and establishing a pattern of state practice
Proponents of UNCLOS ratification claim that the United States can’t counter China’s claims without ratifying UNCLOS itself. Yet the United States already acts in accordance with international law and custom, whereas China, which has ratified UNCLOS, uses UNCLOS to flaunt the law.
By twisting the UNCLOS into pretzels, China is changing the rules of the game. The liberal order made rules to accommodate the rights and interests of those who decided to participate in it. It turns out China doesn’t much like those rules and is attempting to overturn them – especially those rules that protect freedom of navigation and those that make it difficult for China to pursue its territorial ambitions in Asia. Ratifying UNCLOS isn’t an effective way to combat that effort. These disputes are about power politics and neither China nor the United States will allow them to be settled in court – UNCLOS approved or otherwise.
Rather, the United States must continue doing what it has always done. It should continue to operate naval vessels in international waters – including in other countries’ EEZs – where and when it wants to do so. Operations should run the gamut of peaceful activities – surveillance activities, exercises, and so on.
And Washington must clearly state its intention to continue abiding by centuries-old customary international law pertaining to freedom of the seas including provisions of UNCLOS that are consistent with those practices. In interactions with Chinese counterparts, American diplomats should repeatedly and consistently restate the American position – there should be no question as to where the United States stands.
As it does so, the U.S. should engage China in diplomacy, pointing out – among other matters – that China itself conducts military activity in other countries’ EEZs. We need rules of the road with China to manage competition, not wishful thinking about what U.N. bodies can resolve.
It has always been practice that has determined international law of the oceans. China understands this, and is working to shift law and custom through its own practices. Only by continuing to act on the high seas as it always has can the United States hope to maintain a system of international rules that serves its own interests. Ratifying UNCLOS could very well have the opposite effect.