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Fourth, remain neutral about sovereignty, but not about drawing boundaries at sea. The American policy of neutrality on the outcome of sovereignty disputes—that is disputes over the ownership of islands, rocks, and reefs--is a good one, as long as the dispute is resolved without the use of force. Our refusal to be drawn into conflict with a rising power over a piece of territory that is relatively trivial is an important aspect of regional and global stability. On the other hand, the United States has a strong interest in seeing the provisions of UNCLOS strengthened, since they provide the only near-universal framework that decreases resource and security disputes in the maritime domain. As such, the American policy should be to consistently reinforce UNCLOS as the basis for resource boundaries in the South China Sea. The United States Department of State should issue a public, official statement that challenges any right for China to use the 9-dashed as a basis for maritime boundary making. China must not be allowed to use its view of history or its coercive power or any other basis to alter the existing rule set that has provided global stability in what otherwise might have been a very contentious domain. International law must be the only basis for all states to make resource claims in the South China Sea. The United States, indeed all countries, have a vital interest in the strength of the methods of UNCLOS for allocating coastal state rights to resource zones. Not history, not power, but international law must be the standard.
Third, leverage the gravitational power of international norms. The United States should continue to bring its diplomatic power to bear to persuade and encourage parties to pursue diplomatic or institutional measures. Continued American leadership in this regard may also give encouragement to other states inclined to voice similar expectations. American persuasive power would also be strengthened by a reassertion of the American leadership role over the development of international law of the sea. Since UNCLOS is the basis of modern international law of the sea, the U.S. should ratify the Convention in order to more effectively exercise, maintain, and perpetuate its leadership and to strengthen the normative framework that UNCLOS provides.
Since President Reagan's announcement that the United States would adhere to the terms of UNCLOS, the United States has made little change in its policy of ad hoc regulation of marine issues. As a result of its ad hoc decision-making and "knee-jerk" responses to immediately perceived problems in the ocean environment, the United States has failed to create a comprehen- sive national plan. The U.S. ocean legislation fails to balance the needs of the ocean ecosystem with the needs of U.S. commercial fisheries and, therefore, conflicts with the express provisions of UNCLOS.
Moreover, the United States explicitly violates UNCLOS by unilaterally imposing its policies on those states it can control through strong-arm trade sanctions rather than recognizing and respecting each state's sovereign right to manage its own ocean space. Rather than cooperating in compromise agreements designed to achieve a plan benefitting each country involved, the United States' first response to a state with practices different from its own is to impose trade sanctions.
To comply with international law and to achieve the vision aspired to by UNCLOS, therefore, the United States must now revisit its approach to ocean policy-making and modify it to achieve harmony and cohesion. The United States must combine the myriad of scattered, conflicting legislation into one package de- signed to manage ocean resources while considering the interde- pendence of species and habitats. The United States also must cooperate globally, rather than act unilaterally, to achieve and not impede the goal of world environmental protection.
UNCLOS is now international law. As such, parties are bound by the obligations and duties imposed by the "constitution for the oceans." Arguably, even states that have not formally ratified the treaty are bound due to its status as customary international law.
UNCLOS requires states to cooperate globally to "protect and preserve the marine environment." As a compromise package, UNCLOS carefully balances the need for states to maintain sovereignty over their territorial waters and EEZs with the global need to manage effectively the ocean ecosystem. Because such careful balancing is necessary to preserve global harmony and provide effective resource management, the participants in UNCLOS agreed to rigid dispute settlement procedures that are both compulsory and binding.
UNCLOS resulted from a long, arduous negotiation, in which the parties present compromised on numerous policies to achieve a global balance. The United States played a major role in the negotiations and greatly influenced the resulting policies.
A major source of tension between U.S. regulations and UNCLOS directives concerns the United States' imposition of unilateral trade sanctions against other states in order to enforce U.S. standards of operation. Such unilateral actions violate international law by directly interfering with a sovereign's exclusive right to regulate activities in its own territory.127 A state may trigger U.S. trade sanctions if it fails to comply with U.S. domestic conservation standards, such as the MMPA128 or the 1989 Sea Turtle Conservation Amendments to the ESA.129 As discussed above, the imposition of trade sanctions under these laws depends upon whether a foreign state implements conservation or operating standards comparable to those adopted in the United States for protecting marine mammals and sea turtles."130
The international community is hostile toward these laws because trade-sanction decisions are based solely on U.S. domestic environmental standards and contain no exceptions for internationally agreed upon standards.131 Additionally, "these statutes have been deemed protectionist by many nations because they serve to protect U.S. fishermen from foreign competition by equalizing costs associated with environmental protection."132
Moreover, individual state sovereignty over coastal territory is a basic foundation of the U.S. political scheme. Additionally, "federal versus state control over the newly acquired territorial sea is one of the major controversies raised by the most recent legislative proposals."' If individual U.S. states maintain control over the territorial sea off their coasts, they will be responsible both financially and legally for pollution control and cleanup in that area. Such piecemeal regulation could result in "varying degrees of marine protection throughout the United States."81
The internal conflict over exercising state and national sovereignty in the ocean territory has taken precedence over international interests. As a result, U.S. policy is adverse to the UNCLOS mandate to harmonize resource use and conservation activities with other states to achieve uniformity in global environmental legislation.82 Moreover, when problems arise, the United States at times violates the UNCLOS spirit, and possibly its directives, by failing to cooperate with other states in addressing the problems. Rather, the United States elects to act unilaterally, thereby violating rights delegated to other states under UNCLOS.83
The U.S. government's policy of pursuing a "quick fix" to environmental issues by enacting ad hoc domestic legislation and failing to negotiate comprehensive international agreements conflicts with UNCLOS' goal of global cooperation. Moreover, the U.S. unilateral actions often encourage other states to retaliate by initiating their own trade restrictions.84 In the long run, the U.S. policy undermines UNCLOS and the goal of global coop- eration in marine resource protection.
Rather than implement a comprehensive national plan designed to comply with the new global "legal order" establishing marine protection, the United States maintains an ad hoc approach to ocean environmental regulation. The United States reacts to specific ecological problems when drafting domestic legislation and when negotiating international agreements. Far from being comprehensive, the U.S. scheme of ocean environmental protection is "scattered," problem-specific, and often contradictory.77
The United States' desire to assert national sovereignty over the ocean space is the basis for legislation regulating the use and protection of ocean resources.78 Its refusal to cooperate with neighboring countries in negotiating ocean environmental policies and access to ocean resources stems from an unwillingness to compromise that sovereignty.79
UNCLOS serves as the international foundation for fisheries management, giving coastal states sovereign rights over natural resources in their EEZs, a duty to conserve and the right to utilize fish stocks, and a duty to cooperate with other countries in the management of certain fish stocks.51 The 1995 United Nations Fish Stocks Agreement,52 to which the United States is a party, provides a precautionary approach to fisheries and encourages regional cooperation in management of fisheries in the high seas.53 Although UNCLOS does not provide a detailed regime through which state parties must manage fisheries, it provides a broad framework that encourages multilateral approaches to sustainable development of fish stocks.54
Chinese anti-access policies may be designed only to expand its jurisdiction and control over the South China Sea and other near seas, but these practices will have a global impact even if the Chinese do not intend it. A key principle of international law is that law evolves as the norms that support it evolve. Thus, if other states accept China’s view that the law of the sea allows it to prohibit foreign military activities in its EEZ, for instance, China will have introduced a new norm into the law that would shift the existing balance of coastal state and international rights at sea. Another key principle is that international law applies equally in all places. Thus, if China succeeds in shifting the norms for East Asia, other states in other regions could assert the same right. In this manner, Chinese actions have serious implications for the global norms that support security and stability at sea.
Those who argue that the United States should think twice before ratifying UNCLOS because the Convention “has done nothing to avert the current impasse in the South China Sea” are only partially right.30 True, UNCLOS has not deterred Chinese regional maritime expansionism, at least in part because the United States has failed to ensure its leadership over this cornerstone of the global system. By failing to ratify UNCLOS, the United States has allowed China, which ratified it in July 1996, to pursue its own interpreta- tions and to pressure others with the mantle of institutional legitimacy. Thailand’s recent ratifi- cation statement shows this clearly and is not a healthy development for a global system predi- cated on free and open trade through a stable maritime domain. Additionally, those South China Sea states that are attempting to conform with UNCLOS norms in order to shape Chinese behaviors and limit China’s excessive claims in the South China Sea will require full American leadership and support to be successful.
Although the cracks in the foundation so far remain hairline fractures, sustained and effective American leadership over the pillars of the global system will be essential to repair the damage and to keep the foundation solid. In the South China Sea, this will require the United States to continue to encourage progress by all parties to the region’s disputes toward bringing their laws and claims into compliance with UNCLOS. Furthermore, the United States must maintain a sustained focus on this strategically important region, providing con- sistent diplomatic leadership supported by a strong regional military presence.