Revision of U.S. ability to peacefully resolve South China Sea disputes compromised by its non-party status to UNCLOS from Sat, 06/28/2014 - 15:00
Quicktabs: Arguments
Currently, the State Department's suggestion to the competing claims in the South China Sea is for all of the nations to follow UNCLOS.230 It is hypocritical for the United States to encourage another country to follow UNCLOS without actually acceding to it herself.
Further, China is less likely to listen to the United States from a "position of weakness."231 According to one commentator, conversations between the United States and China regarding foreign military activity in China's EEZ currently look like this:
Chinese official: Your navy ships have no right to be in our exclusive economic zone without our permission.
American official: Yes they do. The U.N. Law of the Sea Convention, which reflects customary international law, provides other states have freedom of navigation in exclusive economic zones.
Chinese official: You are not a party to convention, so it doesn't matter what it says-you have no standing to make that argument.232
If the United States acceded to UNCLOS, then China's response could no longer be, "You are not a party to the convention." Admiral Locklear, the U.S. Navy Commander in the U.S. Pacific Command, has mentioned that in the South China Sea, where "competing claims and counter claims in the maritime domain are becoming more prominent . .. the effectiveness of the U.S. message is somewhat less credible than it might otherwise be, due to the fact that we are not a party to the convention."233 The United States would finally have standing to make the argument that China needs to follow UNCLOS.
Supporters of the United States becoming a party to UNCLOS argue or might argue one or more of the following:
- The treaty’s provisions relating to navigational rights, including those in EEZs, reflect the U.S. position on the issue; becoming a party to the treaty would help lock the U.S. perspective into permanent international law.
- Becoming a party to the treaty would give the United States greater standing for participating in discussions relating to the treaty—a “seat at the table”—and thereby improve the U.S. ability to call on China to act in accordance with the treaty’s provisions, including those relating to navigational rights, and to defend U.S. interpretations of the treaty’s provisions, including those relating to whether coastal states have a right under UNCLOS to regulate foreign military activities in their EEZs.
- At least some of the ASEAN member states want the United States to become a member of UNCLOS, because they view it as the principal framework for resolving maritime territorial disputes.
Open economic access to the South China Sea maritime commons is a second U.S. interest, but one which may diverge from freedom of navigation. Access to the resources of the high seas is an important enough U.S. interest to stall the ratification of UNCLOS for nearly 20 years. The United States remains outside the treaty, however, and holds less influence over how maritime law is interpreted and evolves, and thus is at a disadvantage to shape events like whether the South China Sea becomes a wholly divided and claimed sea. Such arrangements as a Joint Development Zone or a Joint Management Zone could stabilize the area and provide stability and economic development for its participants. To support any of the joint development solutions, the United States would have to place its security interests over potential economic ones.
U.S. ratification of UNCLOS is another important step to influence the evolution of future interpretations of freedom of navigation toward more open stipulations than some of the states around the South China Sea now espouse. Although a more difficult proposition, the United States should demand the clarification of the historic claims made in the South China Sea, in order to facilitate negotiating a settlement, accelerate economic development, and remove the potential of shutting down all foreign navigation through the region. Support to Vietnam’s current islet occupations in the Spratlys, its claims to coastal EEZ and continental shelf areas in compliance with UNCLOS, and specific historic economic rights could wean Vietnam from its otherwise weak historic claims, and start sincere bargaining by linking the Paracel and Spratly disputes in a comprehensive agreement. The United States has less influence to change China’s position on historic rights because the ambiguity of its positions has served China well. Here, appealing to China’s future role in world politics may help to change its parochial freedom of navigation perspective into a more global one like the United States holds.
Open economic access to the South China Sea maritime commons is a second U.S. interest, but one for which the solution may diverge from freedom of navigation considerations. Access to the resources of the high seas is an important enough U.S. interest to stall the ratification of UNCLOS for nearly 20 years in order to avoid the restrictions imposed on seabed mining, although this activity has yet to become commercially viable. While the United States remains out- side the treaty, however, it holds less influence over how maritime law is interpreted and evolves, and thus is at a disadvantage to shape events like whether the South China Sea becomes a wholly divided and claimed sea. Such arrangements as a joint development zone or a joint management zone could stabilize the area to provide peace and the dividends of economic development for its participants. This could detract from potential U.S. economic development activities, depending on the arrangements, but supports U.S. security and economic prosperity goals for the region as well as attains a diplomatic settlement through recognized international law.
U.S. economic interests face two problems then in the South China Sea: the UNCLOS rules concerning exploitation of the high seas, and how much of the high seas are available in the area. The United States has not formally ratified UNCLOS for several reasons, but objections to Part XI covering exploitation of the deep seabed is a main one because its provisions are considered statist and not free-market oriented, and the ISA is expensive and inefficient.473 Opponents also see little gain in the South China Sea for U.S. ratifica- tion since the overlapping disputes would not only remain but have no compulsory settlement agreement, and maritime jurisdiction issues like freedom of navigation are exempt from mandatory arbitration mechanisms. Thus these political issues do not change whether the United States is a member or not.474 The irony of opposing U.S. entry to UNCLOS is that in the nearly 30 years since it was written, no country or corporation, including the United States, has been successful in commercially mining for high seas min- eral resources, but the United States, which has the world’s largest aggregate EEZ, benefits from the eco- nomic and environmental protection of its littoral that UNCLOS provides.475 By its present stance, the United States gains freedom from the ISA to potentially mine seabed resources some day since it does not need to be a member of UNCLOS to exploit international waters under customary law, but it loses the advantages of being inside the Law of the Sea Treaty system to guide it and employ its provisions for future U.S. benefit.
Ultimately, peaceful resolution of competing maritime claims in the South China Sea will require multilateral negotiations in conformity with international law, as Secretary of State Hillary Clinton has observed. The brass ring is a binding Code of Conduct among rival claimants, which has proved elusive. Achieving this result will require at least two shifts. The first is a united front among the members of the Association of Southeast Asian Nations (ASEAN), whose summit in Pnomn Penh in July collapsed into acrimony on this question, thanks to Chinese pressure on the Cambodian hosts. Cambodia gets a second chance to get it right this month, when it hosts the final major meeting of its ASEAN chairmanship, which will consider an Indonesian-proposed draft of the code. The second is real movement from China. At stake in the South China Sea is the entire concept of China’s peaceful rise. Recent weeks provide a glimmer of hope in this regard, including Beijing’s endorsement in mid-October of a joint declaration with ASEAN counterparts, which among other provisions commits the parties to peaceful resolution of disputes and the ultimate goal of a code of conduct. The end of China’s protracted leadership transition , which will officially begin during the eighteenth Communist Party Conference on November 8 may allow a mellowing of recent Chinese behavior, giving the incoming government of Xi Jinping an opportunity to rein in the more assertive positions of the Peoples Liberation Army (PLA) on maritime issues.
The Obama administration should encourage all parties to move as promptly as possible toward a binding code of conduct. To be sure, as Tom Wright points out, the United States would have much more diplomatic credibility and influence if it were actually a party to UNCLOS, which would demonstrate that it is willing to play by the same rules that it seeks for others. In this regard, the upcoming lame duck session of Congress would be an ideal time for the Senate to finally ratify UNCLOS.
Fourth, remain neutral about sovereignty, but not about drawing boundaries at sea. The American policy of neutrality on the outcome of sovereignty disputes—that is disputes over the ownership of islands, rocks, and reefs--is a good one, as long as the dispute is resolved without the use of force. Our refusal to be drawn into conflict with a rising power over a piece of territory that is relatively trivial is an important aspect of regional and global stability. On the other hand, the United States has a strong interest in seeing the provisions of UNCLOS strengthened, since they provide the only near-universal framework that decreases resource and security disputes in the maritime domain. As such, the American policy should be to consistently reinforce UNCLOS as the basis for resource boundaries in the South China Sea. The United States Department of State should issue a public, official statement that challenges any right for China to use the 9-dashed as a basis for maritime boundary making. China must not be allowed to use its view of history or its coercive power or any other basis to alter the existing rule set that has provided global stability in what otherwise might have been a very contentious domain. International law must be the only basis for all states to make resource claims in the South China Sea. The United States, indeed all countries, have a vital interest in the strength of the methods of UNCLOS for allocating coastal state rights to resource zones. Not history, not power, but international law must be the standard.
Supporters of the Convention do not disagree that China’s ongoing assertiveness to territory on and beneath the South China Sea is cause for concern, if not a challenge to international norms regarding freedom of the seas, said Caitlyn Antrim, executive director of the Rule of Law Committee for the Oceans, a nonpartisan educational group whose purpose is to inform public discourse regarding U.S. interests in accession to the Convention.
Antrim noted, however, that the United States could better help the situation by acceding to the Law of the Sea Convention, whereby it would have more influence in supporting the coastal states in that region.
An area of 650,000 square miles with a sea floor believed to be rich in deposits of oil and gas, and host to the world’s second busiest sea lanes, the South China Sea is an example of “creeping jurisdiction,” said Antrim, which is represented, in the case of China, by an attempt to increase its control and extend its authority at the expense of its neighbors in Southeast Asia, as well as the United States, Japan and South Korea.
“The Law of the Sea is our lever,” she told Seapower. “We can’t go in there and continually force our way. We need to have a legal regime so that everything works smoothly. All of the other countries support the Law of the Sea, and we get to add to that strength, but it’s a little difficult when we aren’t a party to it.”
Third, American policy makers must realize that the contest for East Asia is one of both power and law. International law supports and legitimizes the exercise of American power. It ensures that the landscape of domestic and international opinion is favorable to American objectives, policies, and actions. International law of the sea in particular, through its assurances of freedom of navigation for security as well as commercial purposes, supports the continued nature of East Asia as a maritime system. International law regarding the free use of international airspace operates similarly. Accordingly, to ensure its future position in East Asia the United States should take specific actions to defend the international legal architecture pertaining to the maritime and aerial commons. Acceding to the United Nations Convention on the Law of the Sea and once again exercising direct leadership over the development of its rules and norms is the first and most critical step. The Department of State should also re-energize its Limits in the Seas series to publicly and repeatedly reinforce international law related to sea and airspace. A good place to begin the new series would be with a detailed assessment of why international law explicitly rejects China’s U-shaped line in the South China Sea as the basis for Chinese jurisdiction there. Others could be written to describe why China’s East China Sea continental shelf claim misapplies international law and why China’s ADIZ unlawfully asserts jurisdiction in the airspace. My sense is that East Asian states, indeed many states around the world, are desperate for active American leadership over the norms and laws that govern legitimate international action.
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