Revision of U.S. ability to peacefully resolve South China Sea disputes compromised by its non-party status to UNCLOS from Thu, 06/01/2017 - 12:05
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.
Quicktabs: Arguments
Having long recognized the efficacy of legal "securitization" claims as a mechanism through which to bolster regional sea control, China has apparently developed an effective strategy in furtherance of its objective." This strategy rests upon China's UNCLOS stance and includes declaratory statements incorporated into China's UNCLOS ratification depository instrument and includes domestic legislation formally claiming security interests in its territorial seas and EEZ, development of supporting legal scholarship, and a complementary strategic communications campaign.12 As China gradually works to set conditions conducive to marginalizing U.S. influence in the East, Southeast, and South Asia regions, its dramatic economic growth will likely further boost its ability to influence the behavior of smaller regional neighbors in a manner consistent with China's UNCLOS "securitization" narrative. The absence of a formal U.S. commitment to UNCLOS is yet an additional vulnerability China can exploit in inducing its neighbors' to acquiesce in its territorial seas and EEZ claims. Such acquiescence would strengthen China's ability to claim territorial sea sovereignty over vast swaths of the East and South China Seas, seriously hampering the United States' ability to project military power in the region.
Further, the United States needs to accede to UNCLOS to exert credible influence over the competing territorial claims in the South China Sea. Although the United States has not taken a position on the competing claims in the region, it has urged the parties to follow UNCLOS.239 Admiral Locklear comments that by becoming a party of UNCLOS, "we place ourselves in a much stronger position to demand adherence by others to the rules contained in the Convention."240 Without being a party of UNCLOS, the United States's recommendations to China carry little weight.
The United States should be very concerned about this situation. There are conflicting territorial claims in the South China Sea, such as the Spratley Islands. Should the Philippines and China end up in an armed conflict over these islands, the Philippines will look to the 1951 U.S.-Philippines Mutual Defense Treaty, and the United States could likely be pulled into war it does not want or need. The United States needs to accede to the treaty to empower her to influence the situation as it now exists.
Additionally, the United States needs to accede to UNCLOS because of the importance of the South China Sea trade routes. China believes that UNCLOS gives it the right to demand notification when foreign countries enter its EEZ.241 The United States does not believe that it has to notify China when the U.S. military enters Chinese waters. These U.S. reconnaissance missions in the South China Sea are crucial to its military security procedures, if for no other reason than the volume of U.S. trade passing through the area. This disagreement has arisen out of differing readings of UNCLOS. Until the United States accedes to UNCLOS, it has no doctrinal authority to argue with China, because the United States has not agreed to be bound by UNCLOS. As a signatory, the United States would have the ability to take up this issue with the committee to determine what authority each country has to regulate foreign military in its EEZ.
Further evidence of a multi-pronged strategy can be inferred from China's operational military efforts to reinforce its ultra vires UNCLOS positions. Specifically, China has, on occasion, engaged in illegal, unsafe airborne and seaborne tactical maneuvers in an attempt to dissuade the United States from conducting military operations-principally, military survey power in the region. it has occasionally demonstrated a willingness to employ military force in operations and intelligence collection-within the Chinese EEZ. Additionally, support of its contested claims to sovereignty over certain offshore islands. short, by pressing contested claims to maritime territorial sovereignty while simultaneously pursuing aggressive military tactics in support of ultra vires security rights in offshore waters, China has demonstrated an efficacious strategy to consolidate control over the vast majority of the South and East China Seas. Toward this end, China has the advantage of operating from interior lines-both geographically and rhetorically vis a vis the United States, due both to its status as an UNCLOS member nation and a state attempting to regulate the waters adjacent to its coast. Thus, to the extent the United States seeks to project a maritime military presence in a manner inconsistent with China's UNCLOS stance, China may gain some traction domestically, as well as internationally, by criticizing the United States as an imperialistic power seeking to threaten and provoke a distant, peace-loving nation in the waters adjacent to its coast. U.S. UNCLOS abstention will continue to facilitate China's ability to cast U.S. UNCLOS interpretation as self-serving and disingenuous by highlighting that the United States is seeking to extract the benefit of UNCLOS butt avoiding membership due to its distrust ofthe international community. It is not inconceivable that such a narrative would resonate with many coastal states, especially if the United States' relative regional and global primacy is seen to be diminishing. All else equal, nations with vulnerable coasts and small fleets might perceive an UNCLOS "securitization" norm as more attractive than the current, generally-accepted norm permitting robust military operations within EEZs and almost unrestricted innocent passage through territorial waters. Furthermore, as an UNCLOS member nation, China remains better positioned than the United States to influence UNCLOS interpretation from within UNCLOS regulatory institutions such as the ISA, ITLOS, and CLCS.
Politically, the time may be right for the White House to secure the necessary two-thirds majority necessary in the United States Senate to ratify the treaty. Concern about China’s assertiveness in its near seas appears to bear currency across the aisle, with both Democrats and Republicans seeing it as a primary problem. The administration should approach the issue of ratification from the angle of the U.S.-China relations, opting to avert a derailment of the debate on how UNCLOS impacts U.S. sovereignty. Indeed, between the first draft of the treaty in 1982 and its signing by President Bill Clinton in 1994, UNCLOS changed considerably, aligning itself with U.S. interests.
The good news is that both the Obama administration and senior U.S. military leaders recognize the urgency of UNCLOS ratification in bolstering the United States’ position in the Asia-Pacific. A year ago, Obama noted, “It’s a lot harder to call on China to resolve its maritime disputes under the Law of the Sea Convention when the United States Senate has refused to ratify it – despite the repeated insistence of our top military leaders that the treaty advances our national security.” Similarly, back in 2012, the U.S. Senate Committee on Foreign Relations called on six U.S. four-star generals and admirals to testify on the issue — they were unanimous in their support of U.S. ratification.
The optics of Chinese maritime assertiveness have grown more visible since 2012, and especially since last year. When Obama made his last major public push for ratification, China wasn’t actively pursuing what amounts to an attempt to bolster its claims to these disputed features within the rubric set out by UNCLOS. We’ve already seen that China may be the one thing that Senate Republicans find more distasteful than the current U.S. president, if the political alignments of the Trans-Pacific Partnership debate are anything to go by. The South China Sea issue, fortunately, is less dicey for Senate Democrats, who should be able to rally behind their president as well. With the exception of a few Tea Party and far-right anti-multilateralism holdouts, the months between now and January 2017 should finally permit an arrival at the long-sought two-thirds majority.
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.
First, the U.S. has repeatedly emphasized that territorial disputes should be addressed multilaterally and has repudiated efforts, led by the Chinese, to address problems with individual Southeast Asian nations. As pointed out by the Center for New American Security, however, American arguments in favor of multilateralism are “robbed of moral authority” when the U.S. refuse to support the most comprehensive mechanism for multilateral resolution of maritime disputes. By not ratifying UNCLOS, American arguments regarding the region’s most complex issues are all too easily left open to rhetorical attack by those opposed to multilateralism. More importantly, it betrays a dangerous ambiguity about America’s commitment to opposing unilateral solutions.
The differing views held by the United States and China over maritime boundaries has great significance for U.S. national security. The military forces of the United States provide a critical deterrent against foreign aggression that might affect the global flow of commerce. In order for U.S. forces to be a credible deterrent they must have access. In its analysis of the national security implications inherent in the UNCLOS convention, the U.S. Department of Defense emphatically stated that, “Assurance that key sea and air lines of communication will remain open as a matter of international legal right and will not become contingent upon approval by coastal or island nations is an essential requirement for implementing our national security strategy.”49 China’s policies and actions place this freedom at risk. If they are allowed to prevail in their claims, the negative operational consequences for USPACOM are tremendous.
If China is allowed to prevail in its claims of sovereign jurisdiction over enormous ocean areas, this would seriously degrade the ability of U.S. forces to conduct peacetime operations in a critical region. Not only would the U.S. Air Force and Navy be unable to operate in much of the south-east Asian littoral, but forces responding to contingencies in other regions could be forced to take alternate routes that would significantly restrict the ability of the U.S. to quickly respond to a crisis.50
Second, without U.S. presence, important partners such as Singapore and the Philippines would no longer benefit from the stabilizing influence that the presence of U.S. forces provides. Instead, as the emerging naval power in the region, Chinese ships would be free to exert their influence unchecked.
Lastly, any freedom of navigation operations conducted by U.S. forces take on a new level of risk as the mere presence of U.S. forces in China’s claimed EEZ could result in hostilities. U.S. forces and Allies, like Australia, routinely conduct freedom of navigation (FON) operations in order to oppose illegitimate maritime claims. These operations are not intended to be antagonistic. Rather, they are intended to serve as just one element in the discourse between nations.51 However, with China’s extreme sensitivity to sovereignty, most U.S. FON operations will almost certainly be viewed as blatantly provocative.52
Second, ratifying UNCLOS will allow us to participate in and help shape dispute resolution mechanisms like the International Tribunal for the Law of the Sea. Military officers and Bush administration national security staff have highlighted the importance of shaping norms that define these territorial disputes. The Philippines, in the International Tribunal, has already raised key issues regarding China’s 9-dash line and a preliminary decision is expected sometime in 2015. Professor Dutton from the U.S. Naval War College has further emphasized that China’s interpretation of key UNCLOS provisions is part of a “coordinated legal campaign to extend maximal security jurisdiction over the East China Sea and the international airspace above it.” It is true that some dispute whether ratifying UNCLOS would materially change China’s understanding of these territorial rights. However, the U.S. cannot sit on the sidelines as ITLOS creates precedent that will become binding on 166 of the 193 states recognized by the United Nations. Customary international law is, by its very nature, subject to change with developments in state practice and understandings of legal obligation (opinio juris).[1] In a foundational case, the International Court of Justice found that treaty provisions become customary law when they are followed by specially affected states. By not signing UNCLOS, the US, certainly a specially affected state, robs its decisions of any potency as a source of customary law.
Those who assert that America can depend on the strength of its navy and existing customary international law need to face the twin realities that China is increasing its military expenditures and that American forces are overstretched in the face of sharp budget cuts. The U.S. cannot assume that China will adhere to traditional interpretations of customary international law, principles that they had little hand in crafting and do not necessarily serve China’s national interest. Indeed, China has already begun to push back against the customary freedom of navigation afforded to military craft (mainly American) in its exclusive economic zone. The U.S. should take an active role in supporting traditional interpretations of customary international law by engaging in a variety of fora, including the International Tribunal for the Law of the Sea, lest the U.S. cripple itself in this essential debate.
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.
Third, aside from ad hoc diplomacy and negotiations within Association for South East Asian Nations (ASEAN), whose decisions require unanimity, UNCLOS is one of the few multilateral mechanisms that can directly address territorial disputes in the seas. General Dempsey, Chairman of the Joint Chiefs of Staff, noted that ratifying UNCLOS, “gives us another tool to effectively resolve conflict at every level.” While it is true that ratifying UNCLOS hasn’t vindicated Japan, for example, in its dispute with China, the treaty has only enjoyed widespread support for sixteen years. Given this short history, it is almost surprising that the Philippines has already asserted this type of claim against China through UNCLOS to bolster its relatively weak strategic position. UNCLOS, therefore, is useful insofar as it provides another venue through which the U.S. could press its claims in the region. American treaty obligations with both Japan and the Philippines give us a strong interest in legitimizing and shaping these new multilateral dispute resolution mechanisms.
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