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Another very important step for the U.S. Government, to better ensure the freedom of navigation rights it now exercises, is to formally ratify the UNCLOS treaty. This step is not just to return to equal footing with other members on moral, diplomatic, and legal grounds in order to better support the rules-based- order that the United States government espouses, but also to be able to directly guide and protect U.S. interests in international fora and on the seas.437 The United States signed UNCLOS in 1994 after successfully negotiating an amendment to the document to correct earlier concerns by the industrialized states, but has not formally ratified it through the Senate. The most important UNCLOS provisions, like mari- time jurisdictions and right-of-passage, are in accord with U.S. policy so that U.S. domestic law generally adheres to UNCLOS statutes, as it also does with customary international law.438 The Department of State and DoD both support ratification to give the United States “greater credibility in invoking the convention’s rules and a greater ability to enforce them.”439 This treaty has come before the Senate several times, as recently as 2012, only to be tabled despite bipartisan support, mainly due to economic concerns with Part XI stipulations that cover the deep seabed.440 A direct American voice in the Law of the Sea Treaty debates could advocate for freedom of navigation and other U.S. interests as international law inevitably evolves, in order to counter the historic trend to circumscribe rights on the high seas by reducing its openness and limiting areas of operations. Foreign military navigation rights through an EEZ are a prime example of such restrictions with 26 countries supporting China’s and Vietnam’s restrictive positions, including major maritime states like India and Brazil.441 The Senate needs to ratify this treaty to allow the United States to defend actively its existing maritime legal interests and rights.
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.
Each side devises elaborate argumentation to justify a position by reference to terms and passages from UNCLOS, implying a common acquiescence to the primacy of inter- national law generally and to the UNCLOS regime specifically. Neither side challenges the legitimacy of international law in general or UNCLOS in specific. That the two disputants contend in such civil, legalistic discourse might encourage one to conclude that reason has surpassed passion, except that vessels from each state, dispatched by authorities determined to defend a principled position, meet in defiant encounters at sea, jeopardizing maritime harmony, menacing bilateral relations, and endangering the lives of duty-bound sailors. Thus, it provides only modest comfort that conversation about the EEZ is possible, even if it is through dialogue that both sides prefer to resolve the present controversy.
A resolution of the EEZ issue is unlikely to emerge from a discussion of law, because the law is not really the problem. Sino-U.S. relations are strained because of the ways in which the strategic aims of Beijing and Washington collide and chafe against one another during a period of rapid transition of stature and perceived power.
Simply put, the PRC—reflexively anxious about its comparative weakness in the face of far more robust U.S. military power—worries about how the United States and its allies may undermine those assets that the PRC has managed to develop to offset the existing military asymmetry between them. Beijing seems committed to expanding strategic depth by raising the cost to the United States of operating close to the PRC’s shores.
In line with this objective, the PRC evidently resents U.S. intelligence and surveillance activities. It hopes to push foreign forces as far from shore as is possible, especially those with prying eyes capable of gathering information about assets Beijing prefers to keep secret.
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.
For instance, Zhang Haiwen cites passages from an essay by Scott Borgerson to make the point that there is a “strong political force which is scornful of the Convention in the United States. They like to take advantage of the Convention but do not respect it.”11 Zhang writes, “It is unfair . . . that the United States, which has yet to ratify the Convention, is raising an argument on the interpretation of the Convention.”12 Reacting to what she views as Washington’s selective compliance with UNCLOS, Zhang highlights the following from Borgerson’s piece: “Opponents of the convention [UNCLOS] argue that there is no need to join the treaty [UNCLOS] because, with the world’s hegemonic navy, the United States can treat the parts of the convention it likes as customary international law, following the convention’s guidelines when it suits American interests and pursuing a unilateral course of action when it does not.”13
In these sentiments Zhang is not alone. Chinese observers have framed the dispute about UNCLOS as illustrative of U.S. hegemonic tendencies. “America’s failure to cooperate with the international community on UNCLOS is not an isolated phenomenon,” writes one commentator, “but is one element in its strategy to dominate the world and monopolize the oceans.”14
In a vigorous denunciation of the U.S. position on UNCLOS, Shen Dingli, the vice dean of the Department of International Studies at Fudan University, comments that for a long time the United States has been acting as the world’s primary maritime power, seeking to limit the rights and interests of littoral states but all the while penetrating their maritime space in ways that are “hegemonic and offensive.” He asserts that the United States, which has thus far refused to ratify UNCLOS, nevertheless regards itself as if it were among those states that have ratified the convention, censuring states that genuinely have. Shen writes that the United States often interprets the convention from the vantage of its own interest rather than according to the stringent standards it claims are demanded of a world leader. If this persists, Shen cautions, it will be difficult for the United States to maintain its image as a moral and legal exemplar. Instead, it will be perceived as a state that is always scheming and seeking to profit at the expense of other states.
One way to interpret the challenges emanating from the PRC is that Beijing resents a legal regime that appears to favor American security at the PRC’s expense. Unable to change the words of UNCLOS, the PRC argues—laboriously, at times—to persuade the United States that the spirit of the law clearly supports Beijing’s interpretation, even where the word of the law may be insufficiently precise.
Hence, Chinese and American analysts of UNCLOS dicker about the meaning of article 58(3), which reads: “In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.”16 PRC analysts point to the “due regard” clause as evidence of the obligation of foreign states to abide the laws of coastal states and the right of coastal states to restrict military activities in the EEZs off their coasts. American analysts tend to view this conclusion as smuggling into the article a privilege that was explicitly rejected by the drafters of the convention.
It is conceivable, of course, that advocates writing on behalf of the PRC offer interpre- tations of UNCLOS that are in fact meant to reopen and extend negotiations about issues that have, apparently, been settled. By challenging the understanding of what is permissible in the EEZ, the Chinese analysts may be hoping that other states will follow suit, adjusting what would then be seen as customary international law and hoping that the legal justifications they offer will likewise become the new norm. This, indeed, is precisely why some American proponents of UNCLOS argue that the United States must ratify the convention. For example, Rear Adm. Arthur E. Brooks, commander of the Seventeenth Coast Guard District, has said, “While reliance upon customary interna- tional law has served us well for many years, it does not adequately protect our interests. Customary international law is based on the evolving practice of States; it can and does erode over time. The Law of the Sea Convention provides the legal certainty and stabil- ity” that the admiral believes would assure U.S. interests for the long term.17
In addition to the weaknesses of the military preparedness, the United States seems to be the only Arctic coastal state that does not currently have any large-scale economic development plan for the region, despite the fact that there is a potential of vast energy resources in addition to fishing and minerals. David Rubenstein, co-founder of a $107 billion global asset management company, describes the entire Arctic region as "the last emerging market” as he states; "Right now, Russia is ahead of the United States. Right now, we're not in the game. Russia is in the game, along with the Scandinavian countries. Canada is moving to get into the game. Meanwhile, the U.S. and Alaska are mainly just talking.”53 U.S. Coast Guard Captain, Melissa Bert, supports Rubenstein’s view as she says that the United States needs an Arctic governance and acquisition strategy.54 “The U.S government is unprepared to harness the potential that the Arctic offers. The United States lacks the capacity to deal with potential regional conflicts and seaborne disasters, and it has been on the sidelines when it comes to developing new governance mechanisms for the Arctic”, she states.
Currently, there is no major tension between the Arctic states. They all want peaceful solutions to their border disputes and see the advantages of freedom of navigation through the Northern Sea Route and the Northwest Passage. However, at the time when the coastal nations are able to increase their oil production in the Arctic, conflict can more easily occur. A shortage of energy and other resources will make the nations more determined to solve their border issues, which may increase the tension between them. Even if Russia cooperates with the other coastal Arctic nations today, there is a growing uncertainty about the stability and aspirations of this regime. Several scholars express concerns about a new “cold war” in the region. Rob Hubert, a professor of political science at the University of Calgary warn about the beginning of an arms race, and claims that the Arctic states talk about cooperation, but are preparing for conflict.27 NATO’s Supreme Allied Commander in Europe, Admiral Stavridis, has also argued, “For now, the disputes in the north has been dealt with peacefully, but climate change could alter the equilibrium over the coming years in the race of temptation for exploration of more readily accessible natural resources.”28
There are several reasons for the limited U.S. attention to the Arctic region. First, the situation in the Asia Pacific and some of the world’s hot spots are regarded as a more imminent security concerns. Second, the current U.S. deficit makes increased spending in regions that do not pose an immediate threat unlikely. Third, the United States will avoid provoking Russia - and Canada. Finally, the prospects of being self sufficient of oil within 2017, due to the increased ability to exploit huge reserves of unconventional shale gas, make the Arctic of less economic interest for the United States.57 At the same time as the United States limits its efforts in the Arctic, it has stated that it “will continue to lead global efforts with capable allies and partners to assure access to and use of the global commons, both by strengthening international norms and by maintaining relevant and interoperable capabilities”.58 The Commons serve as a key enabler of the U.S. military and its ability to project power globally, which is vital to the U.S interest of sustaining global leadership.