Revision of U.S. ability to peacefully resolve South China Sea disputes compromised by its non-party status to UNCLOS from Sun, 07/20/2014 - 00:31
As a signatory to UNCLOS, the PRC occasionally implies that its interpretations should trump those of the United States, which has yet to ratify the convention that Washing- ton nevertheless employs as a bludgeon against Beijing’s claims that UNCLOS permits limitations by coastal states on foreign military activities in the EEZ. The message is that even though the United States asserts its compliance with UNCLOS, because it has not undertaken to be formally bound by the convention it has no standing to impose its self- regarding interpretations of the regime on those states that have ratified it.
Quicktabs: Arguments
Although critics of LOSC rightly argue that the treaty will not bind China’s assertive behavior in the South China Sea,29 evidence suggests that despite attempts to interpret the treaty in ways that promote its own interests, China is willing to work within the LOSC framework. According to one expert, recent statements by the ministry of foreign affairs reaffirm that “China will advance maritime claims that are consistent and compliant with UNCLOS,” which may allow states to press China to clarify its claims through the treaty’s dispute settlement mechanism and bring the region closer to a negotiated settlement.30 However, countries in the region may be reluctant to press China to clarify its claims lest they strain relations with their largest trading partner. As a party to LOSC, the United States could support its partners by pressing China to clarify its maritime claims, which are legitimately tied to U.S. maritime interests in the region, including freedom of navigation rights for the U.S. Navy.
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.
Much attention surrounding the Law of the Sea debate has focused on the Arctic. But the waters that best illustrate the need for an agreed-upon system of rules for the world’s oceans and a U.S. seat at the table are in the South China Sea, where a rising great power, China, decided to assert its maritime claims over smaller neighbors. It did so most aggressively when it submitted the infamous “9-dash line” claim to the United Nations in 2009. That claim has no basis in international law—a fact acknowledged by experts in China—and instead recalls an earlier era when the only rule of international relations was the prerogative of the mighty.
Beijing has walked back its assertive claims. But it did so not because of its ASEAN neighbors’ opposition to the “9-dash line” in May 2009. It did so only when Washington made clear—first with Secretary of State Clinton’s statements at the ASEAN Regional Forum in July 2010 and most recently with President Barack Obama’s appearance at the East Asia Summit last November—that preserving international maritime law, embodied in the Law of the Sea, is a vital U.S. national interest .Without accession, however, the U.S. position is considerably weakened by charges of hypocrisy, a fact not lost on Beijing and of real concern to China’s neighbors who rely on the United States.
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.
The United States need not take a position on the claims of parties in the South China Sea dispute or in any other dispute. It need only ensure that whatever resolutions are reached are within the bounds of international law. If China or any other party is permitted to simply ignore the rules of one facet of the international system—in this case the Law of the Sea—then the entire system loses legitimacy. Commandant of the Coast Guard, Admiral Robert Papp said it best at the same May 9 forum: “Our legitimacy as a sovereign state and as a world leader…rests with the rule of law.”
The Senate should act to assert the national interests of the United States and ratify UNCLOS as soon as possible. Asserting U.S. credibility in the Asia Pacific and globally by standing by the rule of law is in our economic and security interests. In fact, U.S. ratification of UNCLOS will determine whether the twenty-first century resembles the relatively stable order of the late-twentieth century or is more like the competitive free-for-all of the nineteenth.
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.
Having long recognized the efficacy of legal "securitization" claims as a mechanism through which to bolster regional sea control, China has apparently developed an effective strategy in furtherance of its objective." This strategy rests upon China's UNCLOS stance and includes declaratory statements incorporated into China's UNCLOS ratification depository instrument and includes domestic legislation formally claiming security interests in its territorial seas and EEZ, development of supporting legal scholarship, and a complementary strategic communications campaign.12 As China gradually works to set conditions conducive to marginalizing U.S. influence in the East, Southeast, and South Asia regions, its dramatic economic growth will likely further boost its ability to influence the behavior of smaller regional neighbors in a manner consistent with China's UNCLOS "securitization" narrative. The absence of a formal U.S. commitment to UNCLOS is yet an additional vulnerability China can exploit in inducing its neighbors' to acquiesce in its territorial seas and EEZ claims. Such acquiescence would strengthen China's ability to claim territorial sea sovereignty over vast swaths of the East and South China Seas, seriously hampering the United States' ability to project military power in the region.
Further, the United States needs to accede to UNCLOS to exert credible influence over the competing territorial claims in the South China Sea. Although the United States has not taken a position on the competing claims in the region, it has urged the parties to follow UNCLOS.239 Admiral Locklear comments that by becoming a party of UNCLOS, "we place ourselves in a much stronger position to demand adherence by others to the rules contained in the Convention."240 Without being a party of UNCLOS, the United States's recommendations to China carry little weight.
The United States should be very concerned about this situation. There are conflicting territorial claims in the South China Sea, such as the Spratley Islands. Should the Philippines and China end up in an armed conflict over these islands, the Philippines will look to the 1951 U.S.-Philippines Mutual Defense Treaty, and the United States could likely be pulled into war it does not want or need. The United States needs to accede to the treaty to empower her to influence the situation as it now exists.
Additionally, the United States needs to accede to UNCLOS because of the importance of the South China Sea trade routes. China believes that UNCLOS gives it the right to demand notification when foreign countries enter its EEZ.241 The United States does not believe that it has to notify China when the U.S. military enters Chinese waters. These U.S. reconnaissance missions in the South China Sea are crucial to its military security procedures, if for no other reason than the volume of U.S. trade passing through the area. This disagreement has arisen out of differing readings of UNCLOS. Until the United States accedes to UNCLOS, it has no doctrinal authority to argue with China, because the United States has not agreed to be bound by UNCLOS. As a signatory, the United States would have the ability to take up this issue with the committee to determine what authority each country has to regulate foreign military in its EEZ.
Further evidence of a multi-pronged strategy can be inferred from China's operational military efforts to reinforce its ultra vires UNCLOS positions. Specifically, China has, on occasion, engaged in illegal, unsafe airborne and seaborne tactical maneuvers in an attempt to dissuade the United States from conducting military operations-principally, military survey power in the region. it has occasionally demonstrated a willingness to employ military force in operations and intelligence collection-within the Chinese EEZ. Additionally, support of its contested claims to sovereignty over certain offshore islands. short, by pressing contested claims to maritime territorial sovereignty while simultaneously pursuing aggressive military tactics in support of ultra vires security rights in offshore waters, China has demonstrated an efficacious strategy to consolidate control over the vast majority of the South and East China Seas. Toward this end, China has the advantage of operating from interior lines-both geographically and rhetorically vis a vis the United States, due both to its status as an UNCLOS member nation and a state attempting to regulate the waters adjacent to its coast. Thus, to the extent the United States seeks to project a maritime military presence in a manner inconsistent with China's UNCLOS stance, China may gain some traction domestically, as well as internationally, by criticizing the United States as an imperialistic power seeking to threaten and provoke a distant, peace-loving nation in the waters adjacent to its coast. U.S. UNCLOS abstention will continue to facilitate China's ability to cast U.S. UNCLOS interpretation as self-serving and disingenuous by highlighting that the United States is seeking to extract the benefit of UNCLOS butt avoiding membership due to its distrust ofthe international community. It is not inconceivable that such a narrative would resonate with many coastal states, especially if the United States' relative regional and global primacy is seen to be diminishing. All else equal, nations with vulnerable coasts and small fleets might perceive an UNCLOS "securitization" norm as more attractive than the current, generally-accepted norm permitting robust military operations within EEZs and almost unrestricted innocent passage through territorial waters. Furthermore, as an UNCLOS member nation, China remains better positioned than the United States to influence UNCLOS interpretation from within UNCLOS regulatory institutions such as the ISA, ITLOS, and CLCS.
Politically, the time may be right for the White House to secure the necessary two-thirds majority necessary in the United States Senate to ratify the treaty. Concern about China’s assertiveness in its near seas appears to bear currency across the aisle, with both Democrats and Republicans seeing it as a primary problem. The administration should approach the issue of ratification from the angle of the U.S.-China relations, opting to avert a derailment of the debate on how UNCLOS impacts U.S. sovereignty. Indeed, between the first draft of the treaty in 1982 and its signing by President Bill Clinton in 1994, UNCLOS changed considerably, aligning itself with U.S. interests.
The good news is that both the Obama administration and senior U.S. military leaders recognize the urgency of UNCLOS ratification in bolstering the United States’ position in the Asia-Pacific. A year ago, Obama noted, “It’s a lot harder to call on China to resolve its maritime disputes under the Law of the Sea Convention when the United States Senate has refused to ratify it – despite the repeated insistence of our top military leaders that the treaty advances our national security.” Similarly, back in 2012, the U.S. Senate Committee on Foreign Relations called on six U.S. four-star generals and admirals to testify on the issue — they were unanimous in their support of U.S. ratification.
The optics of Chinese maritime assertiveness have grown more visible since 2012, and especially since last year. When Obama made his last major public push for ratification, China wasn’t actively pursuing what amounts to an attempt to bolster its claims to these disputed features within the rubric set out by UNCLOS. We’ve already seen that China may be the one thing that Senate Republicans find more distasteful than the current U.S. president, if the political alignments of the Trans-Pacific Partnership debate are anything to go by. The South China Sea issue, fortunately, is less dicey for Senate Democrats, who should be able to rally behind their president as well. With the exception of a few Tea Party and far-right anti-multilateralism holdouts, the months between now and January 2017 should finally permit an arrival at the long-sought two-thirds majority.
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