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Senate ratification of UNCLOS is now more urgent than ever so the U.S. can legally challenge China’s ongoing maritime expansionism, including China’s militaristic annexation of the Spratly Islands in the South China Sea and China’s bellicosity towards Taiwan, the Philippines, Australia, and Pacific trade routes used to transport U.S. cargo. China is also trying to restrict freedom of navigation and overflight on the high seas off its shores, contrary to UNCLOS.
Since the U.S. is not a party to UNCLOS, we are handcuffed and nothing but hypocritical when criticizing China for its UNCLOS transgressions. Troubling too, unless we ratify UNCLOS, the U.S. will be left ashore when China strikes paydirt following the issuance of deep-sea mining permits scheduled for 2023 by the UNCLOS-created International Seabed Authority.
Even with U.S. domestic political divisiveness, China’s maritime militarism and maneuvering is something Republicans and Democrats should agree to constrain by bilaterally mustering the two-thirds Senate vote needed under the U.S. Constitution to ratify this treaty.
China also needs to be closely watched in the Arctic -- another region where the U.S. is hamstrung without the force of UNCLOS behind us. China claims to be a “Near-Arctic State” and is conducting “scientific research” in the Arctic. To maintain its “Polar Silk Road” China is building its third Arctic icebreaker -- in contrast to the U.S. which now has only one old heavy icebreaker that splits its time between the Arctic and the Antarctic.
Another strategy that could boost U.S. influence in the Arctic, buffer looming conflicts, and help clarify seabed claims would be for the Senate to ratify the United Nations Convention on the Law of the Sea.
The Law of the Sea took effect in 1994 and established rules for how the oceans and ocean resources are used and shared. That includes determining how countries can claim parts of the seabed. The U.S. initially objected over a section that limited deep seabed mining, but that section was amended to alleviate some of those concerns. Presidents Bill Clinton, George W. Bush and Barack Obama all urged the Senate to ratify it, but that still has not happened.
Ratification would give the U.S. a stronger international legal position in contested waters. It also would enable the U.S. to claim more than 386,000 square miles – an area twice the size of California – of Arctic seabed along its extended continental shelf and fend off any other country’s overlapping claims to that area.
Without ratification, the U.S. will be forced to rely on customary international law to pursue any maritime claims, which weakens its international legal position in contested waters, including the Arctic and the South China Sea.
In the end, ratifying UNCLOS would make sense because the U.S. follows the convention as a matter of policy and customary law. By not ratifying UNCLOS, the U.S. has given up access to pursue an extended continental shelf and access to the convention’s dispute resolution mechanisms. Nevertheless, the U.S. will still be held to most of the provisions as a matter of customary international law. However, when approaching the question from the point of view of the country’s Arctic interests, it appears inconsequential. As a member of the Arctic Council, and its declaration to follow UNCLOS as a group, the U.S. may have found a way into dispute resolution proceedings. Applying the lessons from the South China Sea arbitration award to this question furthers the idea that signing UNCLOS would not serve to further the U.S. interests in the Arctic. While using the ruling on features to limit Canada’s maritime entitlements in the Arctic is interesting, it is highly unlikely to ever come up. The main corollary between the ruling and real disagreements in the Arctic is the status of both the Northwest Passage and the Northern Sea Route. In each case, the ruling would aid the U.S.’s arguments that the routes are international passages. However, the Arctic Council provides its own mechanism for resolution, and may provide a window into UNCLOS mandatory proceedings.
Following the award in the matter of the South China Sea, is the U.S. better ratifying UNCLOS? Yes. While the U.S. has maintained that most UNCLOS is customary international law and as such has followed it, the U.S. is failing to take advantage of the provisions relating to the continental shelf. Also, they are losing out on an important dispute resolution tool. While the U.S. enjoys strong relationships with most arctic states, Russia is a notable exception. Russia has been increasingly aggressive worldwide, but they have no history of violating the law of the sea. By not acceding to UNCLOS, the U.S. has removed itself from the body of international law Russia seems to respect.
More broadly, the UNCLOS regime is part of the bedrock of the U.S.-led liberal order. As G. John Ikenberry argued in After Victory, since the Congress of Vienna, leading states have employed institutional strategies as mechanisms to establish restraints on arbitrary state power and embed a favorable and resilient international system. In this instance, the Convention and 1994 Agreement were negotiated during a time of U.S. ascendance and Western unity in international affairs. At ASIL, Myron Nordquist, Associate Director of the Center for Oceans Law and Policy, expounded on how UNCLOS reflects important U.S. interests regarding restraints on economic exclusive zone, continental shelf resources, innocent passage across the territorial waters, the passage rules for transiting straits and archipelagic sea lanes, and, of course, the high seas freedoms. U.S. ratification will serve to “lock in” these advantages, negotiated by the United States from a position of primacy in world affairs.
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.
Given that the United States has not ratified UNCLOS, U.S. nationals may not serve as members of the Commission on the Limits of the Continental Shelf. It is not clear whether the United States, as a non-state party, can even make a legally recognized submission to the commission to assert its claim and fully protect its proprietary rights and energy interests. In contrast, Russia, which may be entitled to almost half of the Artic region’s area and coastline, has already made its submission for vastly extending its continental margin, including a claim to the Lomonosov Ridge, an undersea feature spanning the Arctic from Russia to Canada. Russia and Canada are the two countries with which the United States has potentially overlapping extended continental shelf claims.
This maritime boundary dispute is no small matter. The U.S. Geological Survey estimates that the Arctic holds 22 percent of the world’s undiscovered oil and gas, amounting to more than 412 billion barrels of oil equivalent. Legal certainty in maritime delimitation is critically important for Arctic states and their respective energy companies. On June 8, 2012, Rex Tillerson, as chairman and CEO of ExxonMobil, wrote to the Senate Foreign Relations Committee to vociferously urge U.S. accession to UNCLOS:
“Perhaps the best example of the need for certainty in an area with great unexplored potential involves the Arctic Ocean…Several countries, including the United States, are provided with a claim to extended exploitation rights under the application of UNCLOS in the Arctic. The legal basis of claims is an important element to the stability of property rights.”
In the absence of treaty ratification, Tillerson noted that the United States suffers from the dual disadvantage of having both a cloud over the international status of U.S. claims and a weakened ability to challenge other states’ conflicting claims.
Comments made during and shortly after the UNCLOS negotiations shed light on how participants intended the Convention to be interpreted. Ambassador Tommy T.B. Koh from Singapore, the President of UNCLOS III,32 recognized that the text of UNCLOS did not explicitly provide clarity on permissible military conduct in the EEZ, but he noted "it was the general understanding that the text we negotiated and agreed upon would permit such activities to be conducted."33 Furthermore, Ambassador Koh has spoken about certain coastal states trying to apply territorial sea sovereignty rights in the EEZ, which he noted "is not consistent with the intention of those of us who negotiated this text, and is not consistent with the correct interpretation of this part [Part V] of the Convention."34 The United States further points out that of the few statements made by China at the time of ratifying UNCLOS, only one related to military activities.35 The statement related only to activities in the territorial sea, saying nothing about China's objections to military activities in a coastal State's EEZ.
China recently acknowledged that it too conducts surveillance and marine data collection in the EEZ of foreign states, including the United States.24 On June 1, 2013, at the maritime security session of the Shangri- La Dialogue, high-ranking Chinese military officials confirmed that China has sent its ships into the United States' EEZ.25 U.S. Admiral Samuel Locklear, Commander of U.S. Forces in the Pacific, confirmed that China's Navy has "started 'reciprocating' the US Navy's practice of sending ships and aircraft into the 200-nautical mile zone off China's coast."26 This activity is ironic because China continues to intercept foreign military and fishing vessels, the United States included,27 and attempts to force them to leave.28 In March 2009, for example, a China Maritime Surveillance patrol vessel intercepted the USNS Impeccable, a U.S. Navy vessel,29 while it was conducting a military survey in China's EEZ.30 The Impeccable was radioed by the Chinese patrol vessel and told that it shouldn't be operating "without the permission of the Chinese government."31
But don’t just take it from me. What’s far more important is that UNCLOS ratification is supported by:
- The current President, Secretary of State, Secretary of Defense, Chairman of the Joint Chiefs of Staff; and the heads of the U.S. Maritime Services: Navy, Marine Corps, and Coast Guard
- All their living predecessors, from Republican and Democratic administrations alike26
On how many issues does one witness this sort of unanimity across parties, agencies, and time? These people are true experts: not just on theory, but on how things play out in policy practice. There is a compelling reason for their unanimity: U.S. UNCLOS ratification is a great idea whose time has more than come.