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Which view is correct? It is shaky, if not totally ill-founded, for UNCLOS opponents to suggest that the implementation of the PSI will be affected negatively by U.S. accession to UNCLOS. No persuasive arguments exist to the contrary.
Gaffney provided some reasons explaining why U.S. accession to UNCLOS would hinder its ability to pursue PSI’s goals.154"Statement of Frank Gaffney, Jr.: Oversight Hearing to examine the "United Nations Convention on the Law of the Sea". (March 24, 2004) ." Testimony before the U.S. Senate Committee on Environment & Public Works, March 24, 2004. [ More (3 quotes) ] However, he failed to mention the possibility that the United States could stop and board a vessel on the high seas which was flying the flag of a country like Panama, Liberia, the Marshall Islands, Croatia, Cyprus, or Belize, all of which have signed bilateral shipboarding agreements with the United States.155 In addition, it is also likely that the United States would obtain the consent from a flag state to interdict a vessel on the high seas, if reasonable evidence is provided or it is supported by reliable intelligence that the vessel concerned is indeed carrying or transporting WMD- related cargo. Moreover, while UN Security Council Resolution 1540 does not explicitly authorize the interdiction of a foreign-flagged vessel on the high seas which is suspected of carrying or transporting WMD-related cargo, it can still be argued that action taken under the PSI would not be inconsistent with the call for cooperation to confront the threat posed by WMD proliferation set out in the Resolution. Furthermore, Gaffney argued that the ability of the United States to undertake PSI interdiction action would be affected by Article 88 of UNCLOS, which declares that the high seas are reserved for peaceful purposes, and by Article 301, which obligates states parties to refrain from “the threat or use of force against the territorial integrity or political independence of any State.”156 However, these two provisions can also be cited by the United States as grounds for interdicting foreign- flagged vessels on the high seas if it is reasonably suspected or sufficiently proven that these vessels are carrying or transporting WMD-related cargoes that are to be used by the “states of proliferation concern” for nonpeaceful purposes or have the potential to affect international peace and security. The foreign-flagged vessels’ right to enjoy the freedom of navigation on the high seas in accordance with Article 87 of UNCLOS and the exclusive jurisdiction of the flag state over these vessels on the high seas under Article 92 are to be subject to certain limitations.
Gaffney may be correct where a vessel flying the flag of North Korea and having declared in the ship’s manifest that it is transporting Scud missiles to Yemen could not be intercepted without a breach of the UNCLOS.157 However, interdiction on the high seas is not the only option for stopping the transport of WMD-related goods or technologies from a state of proliferation concern. As the 1993 Yinhe incident demonstrates, the U.S. Navy could follow a suspect vessel and request cooperation from the port state to conduct an investigation once the vessel enters its port. Under UN Security Council Resolution 1540, a port state is obligated to take cooperative action to prevent illicit trafficking in WMD and WMD-related materials.158
Gaffney also argued that, if the United States remains nonparty to UNCLOS, it would not be subject to the limitations under the Convention.159 However, as pointed out by Moore, it is wrong to assume that the United States is free from any constraints in relation to its ocean actions if it does not accede to UNCLOS since the United States is bound by the 1958 Geneva Conventions on the law of the sea which are more restrictive than UNCLOS on issues relating to the PSI.160
In sum, the better view is that of the Bush administration regarding the potential impact of U.S. accession to UNCLOS on the implementation of the PSI. The views held by some of the opponents to UNCLOS are arbitrary and shaky, and lack persuasive reasoning. It is incorrect to argue that the PSI is barred by UNCLOS. After all there are 18 states fully participating in PSI and more than 70 countries that have expressed their support for the Initiative, and most of these countries are party to UNCLOS. Moreover, while UNCLOS is considered the most important legal instrument in dealing with the rights and obligations of states in the oceans, there are other international treaties, regimes, and frameworks that can be relied on if interdiction actions against suspect vessels that carry or transport “WMD, their delivery systems and related materials” to and from “states and non-states of proliferation concern” are necessary.
Some commentators and maritime security experts in the United States have asserted that activities envisioned as being part of the PSI would be inconsistent with UNCLOS, and that U.S. accession to UNCLOS therefore would prevent or inhibit the United States from implementing PSI.15 There are also Republicans in the U.S. Senate, such as Senator James Inhofe (R-OK) and Senator John Ensign (R-NV), who opposed U.S. accession to UNCLOS on the basis that it could hinder the U.S.-led PSI.16 However, officials from the U.S. Navy, the Department of Defense, and the Department of State, who testified at the six hearings on UNCLOS held during the 108th Congress, clarified: that PSI is consistent with UNCLOS; that U.S. accession to the Convention would not present any difficulties for implementation of the Initiative; and that the United States becoming a party to UNCLOS would strengthen the interdiction efforts under the PSI.17 In January 2005, during the Senate nomination hearing for Condoleezza Rice as U.S. secretary of state, Senator Richard G. Lugar (R-IN) raised a number of law of the sea questions, which included the relationship between the PSI and UNCLOS. Rice pointed out that the Initiative requires participating parties to act consistently with national legal authorities and “relevant international law and frameworks,” which includes the law as it is reflected in UNCLOS.18 John Bolton, during his April 2005 nomination hearing to become U.S. representative to the United Nations, repeated the Bush administration’s position saying that U.S. accession to UNCLOS would not have any negative impact whatsoever on the implementation of the Initiative.19
China’s claims to those resources rest in part on his- toric claims illustrated in a map in which a series of nine dashed lines indicate some degree of jurisdiction over virtually all of the waters of the region (a similar claim has been made by Taiwan). With regard to U.S. naval op- erations, China has argued that the 1982 United Nations Convention on the Law of the Sea (UNCLOS) prohibits foreign military operations within its EEZ, a contention found nowhere in the text of the convention itself. China has raised the stakes by stating that control of the South China Sea and its resources is a core national interest on par with its claims to Tibet, Taiwan, and Xinjiang.
Yet Chinese claims are ambiguous. Does the nine-dash chart signify territorial claims to the South China Sea and the seafloor, or does it apply only to the rocks and their territorial sea within the marked zone? Are the claims really a “core interest,” or are they a starting point for negotiating the division of fishing and energy resources of the region?4
China’s arguments and actions reflect its regional per- spective and willingness to exercise its military in pursuit of regional interests. This is changing as China becomes increasingly reliant on distant sea lanes for access to stra- tegic and critical materials, particularly energy from the Persian Gulf, minerals from Africa, and recently, resources passing the Arctic. Security of sea lanes is now becoming a part of its strategic world view.
Access and use of the global commons, particularly the sea and the air space, is a core element of U.S. military and commercial power. In times of war, control of the commons may be ensured by mil- itary means. In peacetime it is sought through international law and diplomacy and through lim- ited military responses when the rules govern- ing use of the commons are breached. In some cases, a peacetime incident may quickly result in a reaffirmation of traditional freedoms of the sea. In oth- ers, a more concerted effort, combining diplomacy with demonstration, is needed to return to adherence to inter- national norms. This latter combination appears to be the case regarding China and the South China Sea. As noted recently by Patrick Cronin and Paul Giarra:
Chinese assertiveness over its region is growing as fast as China’s wealth and perceived power trajectory. Beijing’s unwelcome intent appears to give notice that China is opt- ing out of the Global Commons.1
Though not a new phenomenon, China’s increasingly assertive activities in the South China Sea are drawing concern that the country is seeking regional hegemony at the expense of its neighbors in Southeast Asia as well as the United States, Japan, and South Korea.
Multiple examples of Chinese excessive naval claims that run afoul of UNCLOS Efforts to extend China’s control over the South China Sea run afoul of UNCLOS. Examples of China’s legal overreach include:
- Claiming that military aircraft do not have the right of overflight over the Exclusive Economic Zone: overflight of the EEZ is specifically recognized by the convention, and military surveillance is not limited
- Interfering with U.S. government vessels operating beyond the 12-mile territorial sea, notably Chinese interference with the USNS Impeccable and USNS Bowditch because they were “moving about in China’s Exclusive Economic Zone”
- Claiming that uninhabitable rocks in the Paracels and Spratleys are habitable so that China can claim they are islands with their own 200-nm EEZ, and engaging in military operations to take possession of the rocks from other countries.
Attributing motives to Chinese actions is difficult under the best of circumstances. In the South China Sea, it is even more so. Chairman of the Joint Chiefs of Staff Admiral Mike Mullen recently said that China’s “heavy investments of late in modern, expeditionary maritime and air capabilities seem oddly out of step with their stated goal of territorial defense,” while Secretary of Defense Robert Gates accused China’s top military officers of not following the same policy as senior political leaders who have worked to develop other aspects of the U.S.-China relationship.6
As a large and increasingly industrial state, China is concerned with matters of access to strategic and critical materials, especially oil and gas and industrial minerals. In the short term, China may give its regional interests highest priority. As it grows as a global economic power, however, it will find that freedom of navigation and over- flight worldwide are essential to its security.
Increasing dependence on sea lanes for imports of oil and minerals and access to export markets will push for a shift of priority on global mobility over control of the regional sea. A key reason for China to support UNCLOS is the “transit passage” provisions that assure the unimpeded passage of commercial vessels and the warships that are increasingly called on to escort them through the Straits of Singapore and Malacca, the Strait of Hormuz, and other chokepoints through which its critical imports flow.
The United States depends on support from ASEAN members to maintain effective operations in the South China Sea, so its responses to China must respect regional interests and concerns. While the United States is seen by the member states as a friend, they also know that U.S. interests are at times different from their own. The United States cannot take their support for granted. To do so may not just weaken joint responses to Chinese aggressiveness; it may put other multilateral maritime initiatives at risk, such as the Proliferation Security Initiative and anti-piracy resolutions in the U.N. Security Council.
ASEAN member states must be assured that the United States will provide a balance to growing power without becoming a threat to their interests. The United States can make this clear by emphasizing that its actions will conform with UNCLOS. As long as U.S. actions are compatible with and in support of the convention, ASEAN states will feel secure in U.S. maritime activities in their region, and China will know that there are limits that bind U.S. activities in the region.
While the credibility of the U.S. commitment to the convention is currently undercut by the country’s non- party status, this can be overcome by completing the effort of the previous administration to secure the advice and consent of the Senate to join the convention and then submit its ratification.8
In attempting to increase its control and extend its authority throughout the South China Sea by applying domestic legislation to international waters, China has created a con- flict both with its neighbors and with UNCLOS. China’s claims are not just a threat to navigation in the South China Sea. They are a threat to the global commons and to in- ternational law that was developed to protect the rights of both coastal states and distant-waters states in those regions.
China’s efforts to enclose the local commons are short-sighted. It is growing into the role of a global power with its own interests in access and use of the global commons. In fact, the balance between coastal interests and distant- water concerns may now be in the process of tipping toward the latter. Gail Harris, writing in The Diplomat, stated: “Chinese strategists now also believe in order to protect their economic development they must maintain the security of their sea lines of communications, something that requires a navy capable of operating well beyond coastal waters.”9
The broader U.S. strategy for the South China Sea must follow three tracks. First, protect the rights of navigation for all through both diplomacy and demonstration. Second, work with the People’s Liberation Army Navy to help it recognize that China’s long-term interest in freedom of navigation is far more important to its national security than short-term efforts to control navigation in the EEZ. Third, promote regional resolution of jurisdictional claims over islands and seafloor resources of the South China Sea based on the principles of UNCLOS.
To this end, the United States must also recognize that regional influence depends not just on power but on its judicious application, as noted by Professor Barry Posen:
So command of the commons will provide more influence, and prove more militarily lethal, if others can be convinced that the United States is more interested in constraining regional aggressors than in achieving regional dominance.10
It is important to keep in mind that our friends and allies do not want to see the United States have an un- bounded role in the South China Sea. For them, UNCLOS is important in keeping U.S. involvement in balance with regional interests. If the United States fails to accept the convention’s obligations and limits as well as its rights, then its reputation, even with its allies, will be diminished.
In spite of President Reagan’s endorsement of the provisions related to navigation, the EEZ, and the continental shelf, the credibility of the United States as the champion of international law is weakened by its own failure to join UNCLOS. Joining would strengthen U.S. leadership at sea, and that will serve the interests of all parties in the South China Sea.
U.S. policy is, and should remain, to demonstrate and demand adherence to the rights of navigation and over- flight and promote regional resolution of issues of territorial and resource jurisdiction defined in UNCLOS. An important element of this strategy is for the United States to join the convention and re-establish itself as a champion of the international rule of law at sea while we enjoy the rights recognized by UNCLOS.
An innovation of the 1982 UNCLOS Treaty was the creation of EEZs set forth in Articles 55 through 58.22 These zones ensure that coastal states maintain a significant degree of control over the natural resources off their coasts while retaining a substantial portion of the navigational and over-flight freedoms associated with the high seas region.23 Military ship and aircraft activities are not explicitly limited in the EEZ, so long as their activities do not involve exploitation of the resources resident in the EEZ. China sees the EEZ differently.
During development of the UNCLOS Treaty, Chinese delegate Li Ching made it clear that China did not concur with the EEZ concept. “China’s contention is that the essence of the new zone lies in the exclusiveness of coastal State jurisdiction. This contention explains why China repudiated the idea that the economic zone should be regarded as part of the high seas. If that zone were considered to be included in the high seas, so runs the argument, there would be no sense in labeling it as exclusive.”24 Not surprisingly, upon ratification in 1996 China asserted full sovereign rights over a 200 nautical mile EEZ.25 This assertion only adds to the complexities of the new EEZ concept.