Revision of U.S. ability to peacefully resolve South China Sea disputes compromised by its non-party status to UNCLOS from Thu, 08/14/2014 - 00:19
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.
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.
Ratifying LOSC will give the United States added legitimacy as it seeks to defend the interests of allies and partners in the Asia Pacific, particularly countries involved in disputes over the South China Sea. Tensions between China and Southeast Asian states over historical territorial claims and jurisdiction over potentially lucrative seabed natural resources are escalating because of increasingly assertive behavior on all sides. LOSC is central to mitigating tensions and avoiding conflict in the South China Sea, which involve territory demarcation, maritime navigation and other issues covered by the convention. Without ratifying LOSC, the United States will be unable to credibly encourage efforts of allies like the Philippines as it attempts to mediate a dispute with China over the joint development of resources in the South China Sea using the LOSC dispute settlement mechanism.
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.
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.