Why to Forget UNCLOS
"Why to Forget UNCLOS" — Dan Blumenthal & Michael Mazza — American Enterprise Institute — February 17, 2012
The authors, senior researchers at the American Enterprise Institute, argue that China's aggressive behavior in the South China Seas will not be resolved by U.S. ratification of UNCLOS, but will only lead to "endless legal and diplomatic wrangling."
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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.
China likewise has security interests in its extensive South China Sea claims. As noted above, Beijing has reinterpreted international law to assert that it can deny access to its EEZ by foreign military vessels. Successful realization of China’s claims is the first step toward keeping foreign military assets out of those waters. There are three broad reasons why it wishes to do so.
Firstly, sovereignty over the South China Sea would grant China significant, additional strategic depth. At present, from China’s point of view, its coastal cities – key centers of economic activity – are vulnerable to attack from the sea. Keeping foreign warships and military aircraft distant from China’s shores would make it easier for the PLA to defend China’s southern coastline. It would also enable China to more easily project power close to its neighbors’ shores and thus threaten U.S. allies like the Philippines and friends such as Singapore and Indonesia.
Second, China is highly dependent on resource imports from the Middle East. In 2010, 47 percent of China’s oil imports came from the Middle East; 30 percent came from Africa[AJH2] . These imports pass through chokepoints that China doesn’t control, notably the Malacca Strait, but also the Lombok and Sunda Straits in Indonesian waters. Chinese defense officials have referred to this situation as the “Malacca dilemma.”
Chinese sovereignty over the South China Sea would allow it to more easily project power into those straits and, on the flip side, make it more difficult for the United States to do so. This would make it more difficult for the United States to conduct operations in these vital waters against China, while making it easier for China to operate against the United States – and our allies Japan, South Korea, and Taiwan. It would also enable the Chinese navy to more easily project power into the Indian Ocean, where American and Indian vessels have long operated unimpeded.
Third, Chinese control over the South China Sea would make it easier for the PLA Navy to project power into the Pacific Ocean. Such control would, in particular, make it more difficult for the United States to monitor Chinese submarines deploying from their underground base at Hainan Island. A Chinese Navy that can more easily sail into the Pacific is one that can more easily threaten U.S. assets and U.S. territories in the region.
Traditionally the freedom of the high seas has included the use of the seas for military maneuvers or exercises, including the use of weapons. This freedom – including the freedom to operate in EEZs – was supposed to be incorporated into UNCLOS . But the language in the provisions pertaining to conduct of military activity in EEZs leaves far too much wriggle room for mischief.
For example, China says that foreign warships must obtain its approval before they can do anything but pass through its exclusive economic zone. A Chinese Defense Ministry spokesman, Senior Col. Geng Yansheng, stated in 2010: “We will, in accordance with the demands of international law, respect the freedom of passage of ships or aircraft from relevant countries which are in compliance with international law” (emphasis added). Chinese officials are trying to limit U.S. naval activity in China’s EEZ’s to “passage” from one destination to another.
This means that the Chinese are claiming that heretofore lawful activities(task-force maneuvering, flight operations, military exercises, weapons testing and firing, surveillance and reconnaissance operations and other intelligence-gathering activities, and military marine data collection or military surveys)conducted in EEZs should now be treated as prejudicial to Chinese rights, including China’s duty to protect the marine environment. If these interpretations gain currency, UNCLOS will prove prejudicial to the rights of maritime nations such as the United States. Law should provide clarity, but UNCLOS is unclear as to what military activities are allowed in a country’s EEZ. China is cynically exploiting the law’s vagaries to further its political goals and its desire to project power.
Herein lies a major danger in U.S. ratification of UNCLOS. In adopting, promoting, and acting on new interpretations of international law, China is attempting to upset the status quo and establish new norms of maritime behavior. By signing up to UNCLOS, the United States might unintentionally signal approval of these errant interpretations.