U.S. unable to resolve dispute with China over military ships operating in foreign EEZs as a non-party to UNCLOS

The United States is not a party to the Law of the Sea Convention, but, ironically, we follow it in every respect because we believe it reflects “customary international law”—the law that has built up over the years based on what states actually do in the ocean. So when it comes to exclusive economic zones, the United States interprets the convention (and customary international law) to mean exactly what it says, which is that foreign ships have freedom of navigation in other countries’ exclusive economic zones.

China has a different—and hard to justify—interpretation of the convention. It asserts that it has jurisdiction over all foreign military activity in its exclusive economic zone. Unfortunately, in debates with China and others, the United States is forced to advance our arguments about these issues from a position of weakness. Our encounters with the Chinese on this subject go something 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 that 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.

As you can see, our discussions get sidetracked from the real issues into our inexplicable nonparty status. If America ratified the convention, we’d be in a much stronger position to assert our rights and contest China’s anomalous position—that America needs China’s permission for our military assets to travel in, above, and below China’s (substantial) exclusive economic zone, up to 200 miles from its shores.