UNCLOS is irrelevant to resolution of South China Sea dispute because China is basing its legal arguments on disputed historical claims

Commander of U.S. Pacific Command (PACOM) Admiral Robert F. Willard testified this week before the Senate Armed Services Committee that “…China does not make legal claims to this entire body of water…” (the several bodies of water that China calls its “near seas”). When it comes to at least one of these seas—the South China Sea—the statement is meaningless. Admiral Willard notes—and he would know—that China does “seek to restrict or exclude foreign, in particular, U.S., military maritime and air activities” in the South China Sea. A number of incidents over the last couple years point vividly to this problem. And China often uses legal arguments to explain its behavior. But China’s underlying sovereignty claims are not just “legal.” They are historical. In 2009, the Chinese circulated the famous nine-dash map that lays out its historical claim to virtually all of the South China Sea. That provoked a complaint from Indonesia. Indonesia is not generally considered one of the claimants in the South China Sea dispute. However, it objected because while it sees no threat in China’s legal claims, the historical claims represented by the nine-dash map include Indonesian waters. Now the Philippines has formally registered an objection to the Chinese sovereignty grab, to which the Chinese have responded by citing both the legal and historical bases for their claims. This brings us back to Admiral Willard’s statement. The legal basis of China’s claims to the South China Sea is meaningless as long as it maintains an alternative historical case. This also means that UNCLOS—which Admiral Willard gently urged the Senate to ratify—is irrelevant to settlement of the dispute. In fact, the treaty’s filing deadlines and apparent wiggle room on things like “Exclusive Economic Zones” (EEZ) and baseline determinations seem to have exacerbated the conflict.