U.S. ratification of UNCLOS won't help resolve disputes in South China Seas
Ratification of UNCLOS will neither sway China nor guarantee U.S. navigational rights in the South China Seas any more than continued U.S. naval presence through the Freedom of Navigation program.
Quicktabs: Arguments
Regardless, the United States cannot afford to wait to join UNCLOS before bringing a decisive res- olution to the challenges in the SCS. The Senate Foreign relations Committee has taken the convention under consideration on many occasions, including hearings in 1994, 2003, 2004, and 2007. The committee held four hearings in 2012, but then-chairman Senator John Kerry (D–MA) did not attempt to offer the convention for a committee vote due to stiff opposition by the convention’s detractors.
There is no realistic possibility that the United States will ratify UNCLOS in the near term, or perhaps ever. U.S. policymakers should instead concentrate their efforts on developing and implementing a specific strategy to address intractable problems, such as those the United States faces in the SCS.
Opponents of the United States becoming a party to UNCLOS argue or might argue one or more of the following:
- China’s ability to cite international law (including UNCLOS) in defending its position on whether coastal states have a right to regulate foreign military activities in their EEZs73 shows that UNCLOS does not adequately protect U.S. interests relating to navigational rights in EEZs; the United States should not help lock this inadequate description of navigational rights into permanent international law by becoming a party to the treaty.
- The United States becoming a party to the treaty would do little to help resolve maritime territorial disputes in the SCS and ECS, in part because China’s maritime territorial claims, such as those depicted in the map of the nine-dash line, predate and go well beyond what is allowed under the treaty and appear rooted in arguments that are outside the treaty.
- The United States can adequately support the ASEAN countries and Japan in matters relating to maritime territorial disputes in the SCS and ECS in other ways, without becoming a party to the treaty.
- The United States can continue to defend its positions on navigational rights on the high seas by citing customary international law, by demonstrating those rights with U.S. naval deployments (including those conducted under the FON program), and by having allies and partners defend the U.S. position on the EEZ issue at meetings of UNCLOS parties.
I understand the force of this argument. The U.S. already adheres the key principles in UNCLOS, so joining UNCLOS will allow the U.S. to push back more effectively against China’s aggressive and expansionary activities.
But is there really any evidence that formal accession would change China’s view of the U.S. position on UNCLOS issues? China is already a member of UNCLOS and other countries (like Japan and the Philippines) are also members of UNCLOS. But I don’t think UNCLOS has really bolstered their effectiveness in pushing back against China. Moreover, as Professor Dutton explains, China has a radically different interpretation of its authority to regulate foreign ships and aircraft in its Exclusive Economic Zone under UNCLOS. How will joining UNCLOS help the U.S. change China’s interpretation of UNCLOS?
As a practical matter, UNCLOS does have a way of compelling member states to conform their interpretations: mandatory dispute settlement in the International Tribunal for the Law of the Sea or in Annex VII arbitration. But as China and Russia have demonstrated in recent years, these mechanisms are not likely to be a serious constraint, especially on questions that touch sovereignty (which is how China frames most of its activities). I suppose if the U.S. joins UNCLOS, and subjects itself to UNCLOS dispute settlement, that might make a difference. But I don’t think it would be a very large one (after all, Japan, China, and the Philippines are all already subject to UNCLOS dispute settlement, which has accomplished little so far).
First, while the United States has a strong interest in peaceful resolution of competing territorial claims in the South China Sea, it is not itself a claimant, and thus UNCLOS would provide no additional tools for the United States to use in addressing disputes in the South China Sea. While U.S. ratification of UNCLOS would allow U.S. nationals to serve on arbitration panels, such representatives are expected to exercise independent reasoning and do not take instructions from member governments.
If anything, the presence of an American on the panel would have played to the suspicions of hardliners in China who view international legal regimes as a vehicle for advancing U.S. interests. If this sounds farfetched, consider that the Chinese ambassador to ASEAN recently accused Washington of “staying behind the arbitration case as the manipulator, and doing whatever it can to ensure that the Philippines wins the case.”
Second, the only thing that the United States would achieve by joining UNCLOS—at least from the perspective of modifying Chinese behavior—would be to deprive Beijing of its talking point that U.S. exhortations to claimant states to comply with UNCLOS amount to “hypocrisy.” Deprived of this talking point, there’s no reason to believe that Beijing would submit to the tribunal’s authority. Although U.S. ratification of UNCLOS would be a boost to the prestige of the convention, Beijing has evidently made a calculated judgment that defending its perceived sovereignty and the strategic value of physical control of large stretches of the South China Sea outweighs whatever reputational damage it suffers as a result of flouting the tribunal’s decision.
There are many reasons why ratification of UNCLOS serves U.S. interests—not least of which, the convention would allow the United States to make claims on the arctic seabed beyond its current exclusive economic zone. Perhaps most importantly, as Sen. Ben Cardin recently pointed out, ratification of UNCLOS would help the United States continue to “build a world of rules, law, and order.”
None of these benefits changes the fact that Senate ratification of the treaty will result only in a slight modification to Chinese rhetoric, and no change in Chinese policy. While Washington and most Southeast Asian nations would like to see tensions in the South China Sea resolved through application of shared rules and norms, Beijing has shown its determination to settle the matter through power politics. To be sure, the United States must continue to show that international law is the way to peacefully resolve these disputes—but the United States joining UNCLOS will not have a tangible impact on that effort.
Commander of U.S. Pacific Command (PACOM) Admiral Robert F. Willard testified this week before the Senate Armed Services Committee that “…China does not make legal claims to this entire body of water…” (the several bodies of water that China calls its “near seas”). When it comes to at least one of these seas—the South China Sea—the statement is meaningless.
Admiral Willard notes—and he would know—that China does “seek to restrict or exclude foreign, in particular, U.S., military maritime and air activities” in the South China Sea. A number of incidents over the last couple years point vividly to this problem. And China often uses legal arguments to explain its behavior.
But China’s underlying sovereignty claims are not just “legal.” They are historical. In 2009, the Chinese circulated the famous nine-dash map that lays out its historical claim to virtually all of the South China Sea. That provoked a complaint from Indonesia. Indonesia is not generally considered one of the claimants in the South China Sea dispute. However, it objected because while it sees no threat in China’s legal claims, the historical claims represented by the nine-dash map include Indonesian waters.
Now the Philippines has formally registered an objection to the Chinese sovereignty grab, to which the Chinese have responded by citing both the legal and historical bases for their claims.
This brings us back to Admiral Willard’s statement. The legal basis of China’s claims to the South China Sea is meaningless as long as it maintains an alternative historical case. This also means that UNCLOS—which Admiral Willard gently urged the Senate to ratify—is irrelevant to settlement of the dispute. In fact, the treaty’s filing deadlines and apparent wiggle room on things like “Exclusive Economic Zones” (EEZ) and baseline determinations seem to have exacerbated the conflict.
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.
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The authors argue that while there are good reasons for the Senate to ratify UNCLOS, pushing it to advance U.S. policy in the South China Seas is not one of them as it would result "only in a slight modification to Chinese rhetoric, and no change in Chinese policy."
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The author disputes the idea brough up in recent testimony that the U.S. could improve its bargaining position in negotiating a resolution to the South China Seas dispute by ratifying UNCLOS.
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