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

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.

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. ratification of UNCLOS is another important step to influence the evolution of future interpretations of freedom of navigation toward more open stipulations than some of the states around the South China Sea now espouse. Although a more difficult proposition, the United States should demand the clarification of the historic claims made in the South China Sea, in order to facilitate negotiating a settlement, accelerate economic development, and remove the potential of shutting down all foreign navigation through the region. Support to Vietnam’s current islet occupations in the Spratlys, its claims to coastal EEZ and continental shelf areas in compliance with UNCLOS, and specific historic economic rights could wean Vietnam from its otherwise weak historic claims, and start sincere bargaining by linking the Paracel and Spratly disputes in a comprehensive agreement. The United States has less influence to change China’s position on historic rights because the ambiguity of its positions has served China well. Here, appealing to China’s future role in world politics may help to change its parochial freedom of navigation perspective into a more global one like the United States holds.