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The deep seas are also opening up as a new frontier for genetic research. Research institutions, as well as the pharmaceutical, health care, cosmetics, and agricultural industries, are increasingly interested in the biodiversity associated with mineral-rich, deep sea, warm hydrothermal vents, and cold-seeps, which were only discovered as the Conference drew to a close. At least several hundred patents have now been issued by the United States, the European Union, Japan, and other developed countries for organisms, products, and processes originating in the deep. Many developing countries, however, object to the patentability of deep sea materials, on the basis that it runs afoul of the spirit of the "common heritage of mankind" and of the provisions of UNCLOS prohibiting using marine scientific research to appropriate marine resources or "any part" of the seabed.17 The Convention recognizes the fundamental truth that "the problems of ocean space are closely interrelated and must be addressed as a whole." Without consensus on the legal structure governing these genetic resources, patent holders cannot enjoy the protections necessary in the global marketplace to spur continued investment in genetic resources.
Without becoming party to the Convention, the United States cannot benefit from all the Convention offers, while the rest of the world also loses from our non-participation in the continued progressive development ofthe Law of the Sea. The United States cannot turn to the binding dispute settlement regime of Part XV should it wish to contest overly assertive straight baseline claims or arbitrary restrictions on innocent passage or marine scientific research.16 The United States cannot make a claim for an extended continental shelf beyond 200 nautical miles under Article 76. The United States has also been without representation on the Commission on the Limits ofthe Continental Shelf. The Commission has been quietly developing international law on the continental shelf by formulating its Scientific and Technical Guidelines and by reviewing the dozen or so claims that have so far been made. If and when the United States ever does become a party, its extended continental shelf claim will be assessed, perhaps decades after the Commission began its work, on the basis of standards now being worked out without its participation.
UNCLOS provides the overarching framework governing international ocean affairs. The Convention is one of the most wide-ranging, comprehensive international Conventions and, together with its associated agreements3, covers or touches on virtually all marine activities. UNCLOS has, moreover, achieved broad acceptance from the international community. At the time of writing the Convention boasted 164 parties, comprising 163 States plus the European Union. When it is recalled that there are 'only' 155 coastal States in the world, the near-comprehensive uptake of UNCLOS is underscored.
Indeed, despite being a non-party itself, the US nonetheless accepts that key aspects of UNCLOS, such as the maritime jurisdictional and boundary delimitation provisions, are declaratory of customary international law and conducts its policy accordingly.4 In terms of international law and international relations, US accession to the Convention would therefore consolidate and reinforce the oceans policy and practice pursued by successive administrations of both political persuasions in the US.
The US is, of course, the world's sole superpower and its pre-eminent maritime power. Accordingly, the US clearly plays a leading role in global affairs. The US also perceives itself to be a world leader and is keen to project and promote this image and reality. The fact that the US is not a party to the Convention undermines that leadership role in the maritime sphere. Critically, when the United States comments on maritime issues of concern to it, such as regarding excessive maritime claims through the FON program or on the South China Sea disputes for instance, a frequently raised objection to Washington's interventions is that the US has not signed up to UNCLOS. This serves to compromise the credibility and authority of the US in global ocean affairs. US accession would therefore remove a somewhat irrelevant, but far from unimportant barrier to the United States playing a strong leadership role as the contemporary law of the sea. The counterpoint here is that by choosing not to participate the US is abdicating or at least undermining its credential to a leadership role in international ocean affairs. The rationale for ratification on this front alone is therefore, it is submitted, persuasive.
US accession to the UNCLOS regime would also enable and facilitate full US participation in how the law of the sea is further defined, applied, and modified. The 1982 Convention marked the end of the Third UN Conference on the Law of the Sea (UNCLOS III). It did not mark the cessation of the evolution and development of this branch of international law. And yet, the international community, by and large, has decided to pursue this process of evolution and development in the context of the UNCLOS regime. This alone speaks to the importance of securing the participation of all major ocean states. US non-participation compromises this. In essence, US non- participation denies the US a 'place at the table' within key institutions created as a consequence of the Convention and related agreements. For example, as a non-party the US has no representative on the International Tribunal on the Law of the Sea (ITLOS) and is ineligible to put forward a member of the Commission on the Limits of the Continental Shelf (CLCS). This is surely problematic from a US perspective. As noted above, the Convention is now widely accepted as the basis for global oceans governance yet the law of the sea continues to evolve and change. Without US input, the international law of the sea is likely to be shaped in a manner that does not fully take into account US national interests. This is why complacent arguments that the US can take advantage of the benefits that the Convention offers on the basis that it is reflective of customary international law, whilst avoiding the costs of participation are flawed. Such a strategy represents a distinct abdication of responsibility that carries with it the long-term risk that international custom will ultimately run counter to US interests.
Perhaps the most obvious and compelling gain for the United States will be secure title to jurisdiction over the non-living resources of the seabed and subsoil of the continental shelf extending beyond 200 nautical miles (nm). Both customary and conventional international law recognize state rights to this limit, but sea areas beyond are high seas, and sea-bed and sub-soil are part of the common heritage of humanity. These principles have been in process of development since the 1960s. The Convention, however, allows coastal States to establish outer limits to the continental shelf that go beyond 200nm provided the conditions set for in Article 76 of the Convention are satisfied. Through this process the United States stands to gain rights to enormous areas of seabed, especially in the Arctic. The Convention established the Commission on the Limits of the Continental Shelf (CLCS) to give official imprimatur to such outer continental shelf limits and thus the 'extended' or 'outer' continental shelf areas enclosed within them.9 This is crucially important, because without secure legal title, it is hard to envisage any commercial entity wishing to explore and exploit resources beyond 200nm being able or willing to invest the billions of dollars necessary to conduct such operations, especially in hostile environments such as the Arctic. It should not be forgotten that security of title, and the need to ensure proper control of activities, were among the policy considerations which led to the 'Truman Proclamation' on the Continental Shelf of 1945.10 This Proclamation laid the foundation for the entire modern law of the sea, because it took state rights beyond the limits of the territorial sea for the first time.
But the Americans have forgotten one thing. China is not so easy to bully . . . They will not trade with anybody their state sovereignty or national dignity under any circumstances. They are like that on the problem of Tibet; they are like that on the problem of the South China Sea. On matters involving state sovereignty, China does not budge.
In addition, official US statements in the future need to challenge Chinese assertions that China’s position has a legal basis, whereas the US position is merely derived from its hegemonic interests. The US should encourage all countries that value its position on international maritime law or just want to discourage Chinese assertiveness in the South China Sea to openly support the US position. According to the Department of Defense Maritime Claims Reference Manual, of the 150 states with maritime claims, 127 states recognize the right of all states to undertake military activities in the EEZ and only 22 side with China by making some form of claim to regulate foreign military activities in their EEZ.94 Joint statements made with Asian leaders and with leaders of developing countries supporting the US interpretation of EEZ rights would weaken China’s argument that the US position hurts the interests of the less powerful. Moreover, China tends to cooperate more with broad international efforts than with unilateral US efforts.95 The US should consider addressing China’s position on UNCLOS and related provocative behavior in multilateral forums such as the United Nations and encouraging regional allies to bring up the issue through regional institutions such as ASEAN. In that regard, the Obama administration’s recent offer to facilitate multilateral talks between China and its Southeast Asian neighbors about the territorial status of islands in the South China Sea is a step in the right direction.
Last, even though China presented its position in legal terms to counter and undermine the US and avoid international backlash, the main goal of Chinese coercive diplomacy is to compel the US to stop conducting surveillance activities near sensitive military areas. A review of Chinese writings reveal that it is displeased with US intelligence gathering more generally, even when the platforms are not located in China’s claimed EEZ.97 However, there are long-term implications of any US concessions on this issue. Yielding to pressure may affect China’s future expectations of the effectiveness of the use of military provocation vis-a` -vis the US, which may lead to increases in bilateral tensions and threats to regional security. In the words of Schelling, ‘to yield may be to signal that one can be expected to yield.’98 Furthermore, the regional allies and strategic partners that are hedging their bets against the possibility of US disengagement from the region may interpret compliance with Chinese demands as a lack of US resolve. This would affect the strategic calculations of regional players, especially on how to prioritize their relationships with the US and China.99 Concessions also give legitimacy to China’s EEZ position and potentially to some of China’s territorial claims, which would shift the status quo in a way that is harmful to regional stability. According to Peter Dutton, ‘China’s efforts to alter the balance of maritime rights are part of its overall anti-access strategy, and could have an impact on the perceived legitimacy of US operations in the region, especially in times of crisis.’100 To avoid this, the US needs to maintain its commitment to a strong regional presence and the preservation of freedom of the sea.
This study attempts to fill this gap by uncovering why China’s coercive diplomacy took the form it did in the case of the March 2009 Impeccable incident in which five Chinese vessels shadowed and aggressively maneuvered in close proximity to the US Naval Ship (USNS) Impeccable in contravention to accepted naval practice.5 At the time of the encounter, the Impeccable was approximately 75 nautical miles southeast of the Chinese Sanya Naval Base, in the international waters of the South China Sea, but inside China’s claimed Exclusive Economic Zone (EEZ).6 Chinese leaders most likely believed that the Impeccable was gathering underwater acoustical data that could help track Chinese submarines located nearby and opposed such surveil- lance activities.7 Two of the five ships involved, Chinese-flagged fishing trawlers, came within 50 feet of the US ship and the crew attempted to snag the ship’s towed acoustic array sonar. After hours of confrontation, the Impeccable was eventually able to leave the area and an American destroyer, the USS Chung-Hoon, was sent to provide additional protection. Though the Chinese government publicly denied any role in organizing the actions of the Chinese vessels, the fact that the Chinese ships involved included a navy intelligence collection ship, a Bureau of Maritime Fisheries patrol vessel, and a State Oceanographic Administration patrol vessel, calls this into question.9 Furthermore, the fact that the Chinese sailors knew what the towed array sonar looked like as well as its purpose suggests instruction.