Breaking Away on the South China Sea

As Tensions Grow in South China Seas, So Too Do America’s Reasons to Ratify the ‘Law of Sea’ Treaty

Territorial disputes between China and neighboring South East Asian countries in the Pacific Ocean provide significant and relevant reasons for why the United States should reconsider its policy and ratify the United Nations Convention of the Law of the Sea.

With disputes over territorial claims dating from the end of World War II, tensions have been brewing in the depths of the South China Sea for decades.[1] The maritime conflicts over control for this marginal sea—part of the Pacific Ocean and tightly fitted between China, Vietnam, Malaysia, Brunei and the Philippines—are microcosms that illustrate the complexities and vagueness of the current international law of the seas.  Illustrative of regional politics in the Pacific, these conflicts provide a significant reason for why the United States should ratify the most recent Law of the Sea Treaty.

The United Nations Convention on the Law of the Sea (“UNCLOS” or “Convention”) is the leading international agreement defining the rights, responsibilities, and international norms regarding use of the world’s seas.[2]  UNCLOS first appeared thirty years ago, under the Reagan administration, and addresses issues pertaining to claims over mineral resources, sovereignty of coastal states, and regulations over pollution controls.[3], [4]  The U.S. was a principal force in developing UNCLOS[5] but, despite its role, the U.S. Senate ultimately decided against ratification. One criticism asserted by opponents was that the Treaty “would erode U.S. sovereignty by ceding power to international bodies.”[6] Since then, over 160 countries and the European Union have become parties to the Convention, while the U.S. still has not.[7]

A growing global power, China has “unilaterally decided to annex an area” nearly twice the size of the combined landmasses of Vietnam, South Korea, Japan and the Philippines, despite claims that China’s neighboring countries could have over various regions of the Sea.
In recent years, “the Chinese government has grown more assertive” in its territorial claims over clusters of small, mostly uninhabited islands scattered throughout the South China Sea.[8] A growing global power, China has “unilaterally decided to annex an area” nearly twice the size of the combined landmasses of Vietnam, South Korea, Japan and the Philippines,[9] despite the claims that China’s neighboring countries could have over various regions of the Sea. One of the most notable sites of contention is the Spratly Islands, located just off the coast of the Philippines and Malaysia.  These islands have been claimed by Taiwan, Vietnam, Malaysia, the Philippines, and even the tiny sultanate of Brunei, in addition to China.[10]

Growing conflict over these islands is understandable, as the economic interests at stake in the South China Sea could be massive. The Sea is a vital strategic waterway, with $5.3 trillion of trade passing through it each year,[11] and is abundant with natural resources: one Chinese study approximates 213 billion barrels in the region: about 80% of Saudi Arabia’s known reserves.[12]  Natural gas reserves in the South China Sea were estimated at “five time those of the U.S.”[13]

Besides the obvious economic benefits to gaining control over the South China Sea, there are significant global political and security interests at issue.[14]  Regional countries, as well as the United States, have expressed a critical interest in maintaining a freedom to navigate throughout the South China Sea waters.[15] As it is, foreign militaries seeking to sail through China’s 200-mile exclusive economic zone must get advance permission to do so, suggesting that navigation will be restricted even further if China officially usurps control over the waterways.[16] If restrictions on navigation extend to the entire sea it will be particularly troublesome for America, as its naval forces regularly freely patrol the Asian-Pacific region.[17]

As the United States provides support to regional countries against China, the issue of America’s non-ratification of UNCLOS builds.
Over the last half century the United States has shown itself to be an “essential guarantor of stability in the Asian-Pacific region,” even through tumultuous power shifts in the region.[18] In recent decades, the United States has continued to exhibit a supportive role to the surrounding regional countries, furthering its own interests in maintaining peace and stability. Defense Secretary Leon Panetta has expressed that U.S. ratification of the UNCLOS would give the U.S. “legal backing to defend freedom of navigation in places like the South China Sea.”[19]  In contrast, if confidence is lost in the United States “as the principle regional security guarantor,” there is a possibility of potentially destabilizing arms buildups in reaction to China’s demands.[20]

In an appeal to adhere to international norms, all the claimants have tried to justify their jurisdictional claims over the Sea “based on their coastlines and the provisions of the UNCLOS.”[21]  That is, all except China. Instead, China relies on a combination of “historic rights and legal claims” to bolster its stance.[22] As the United States provides support to regional countries against China, the issue of America’s non-ratification of UNCLOS builds. The point is most clear when the United States attempts “to enforce its interpretations of laws it hasn’t even ratified itself.”[23]

As the United States supports Vietnam’s and the Philippines’ claims to the territories pursuant to UNCLOS, U.S. credibility is questioned because we have not ratified the Convention ourselves.  Continued non-ratification of UNCLOS “significantly [impedes America’s] ability to handle a range of pressing issues”: disputes in the South China Sea a case in point.[24]  With much at stake, and resolutions to these disputes in the sea far from sight, the United States must consider the broad and narrow implications of an un-ratified UNCLOS if it intends to effectively carry out its position as a guarantor of peace and stability throughout the world’s oceans.

 


[1] Scott Neuman, Little Islands Are Big Trouble In The South China Sea, National Public Radio, (Sept. 7, 2012), http://www.npr.org/2012/09/07/160745930/little-islands-are-big-trouble-in-the-south-china-sea.

[2] United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397, http://www.un.org/depts/los/convention_agreements/texts/unclos/closindx.htm.

[3] Id. at Part XI Section 3 [mineral resources], Part II, Section 1 [sovereignty of coastal states] and Part XII [regulations over pollution controls].

[4] Stewart Patrick, Everyone Agrees: Ratify the Law of the Sea, COUNCIL ON FOREIGN RELATIONS BLOG, (June 8, 2012), https://blogs.cfr.org/patrick/2012/06/08/everyone-agrees-ratify-the-law-of-the-sea.

[5] Id.

[6] Keith Johnson and Laura Meckler, To Parry China, U.S. Looks to Sea Treaty It Hasn’t Ratified, WALL ST. J., (November 18, 2011). http://online.wsj.com/article/SB10001424052970204517204577044473905113442.html?KEYWORDS=%22to+parry+china+us+looks+to+sea+treaty+it+hasn%27t+signed%22

[7] Patrick supra note 2.

[8] Andrew Burt, Why U.S. Senate Should Ratify Law of the Sea Treaty, YALE LAW SCHOOL STUDENT LIFE, (May 30, 2012), http://www.law.yale.edu/studentlife/15557.htm.

[9] James Webb, The South China Sea’s Gathering Storm, WALL ST. J. OPINION, (August 20, 2012, 12:53 PM), http://online.wsj.com/article/SB10000872396390444184704577587483914661256.html?_requestid=27614.

[10] Neuman, supra note 1.

[11] Bonnie Glaser, Armed Clash in the South China Sea, COUNCIL ON FOREIGN AFFAIRS, (April, 2012), http://www.cfr.org/east-asia/armed-clash-south-china-sea/p27883.

[12] Neuman, supra note 6.

[13]  Id.

[14] Glaser, supra note 7.

[15] Id.

[16] Id.

[17] Id.

[18] Webb, supra note 5.

[19] Johnson, supra note 3.

[20] Glaser, supra note 6.

[21] Id.

[22] Id.

[23] Burt, supra note 4.

[24] Glaser, supra note 6.