What Would Reagan Do About China’s Violations of the Law of the Sea?
EAST CHINA SEA (Nov. 16, 2012) Twenty-six ships from the U.S. Navy and the Japan Maritime Self-Defense Force are underway together after the conclusion of exercise Keen Sword 2013.

What Would Reagan Do About China’s Violations of the Law of the Sea?

 
 

President Ronald Reagan, the only U.S. president to reject the 1982 Law of the Sea Convention (UNCLOS), still has the most enduring U.S. oceans law legacy. A glance back at Reagan’s approach to oceans governance provides some insight into how he might act if he were confronted with China’s serial violations of the law of the sea.

Without even thinking about the nine-dashed line claim, it is evident that China is a recidivist offender of UNCLOS. China has illegal straight baselines along its coast in violation of article 7 of UNCLOS, illegal claims to a territorial sea surrounding mid-ocean low-tide elevations in violation of article 13, and an illegal system of archipelagic baselines around the Paracel Islands in violation of article 47. Parenthetically, it is worth recalling that the Paracel Islands were seized from Vietnam by military invasion in 1974 – such action being in violation of article 2(4) the Charter of the United Nations.

China also purports to impose unlawful conditions on innocent passage in its territorial sea in violation of articles 19 and 21 of UNCLOS, and Beijing illegally denies high seas freedoms and other internationally lawful uses of the sea associated with the operation of ships and aircraft in its exclusive economic zone (EEZ) in violation of article 87, while at the same time depriving its neighbors of their exclusive sovereign rights and jurisdiction in their own EEZ in violation of article 56. China also violates the sovereign immunity of foreign warships and military aircraft under articles 32 and 95, and appears to claim a territorial sea around its artificial islands, in contravention of article 60.

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Likewise, by claiming the continental shelf of Japan in the East China Sea and Vietnam and Malaysia in the South China Sea, China violates its duties under article 83. Through disruption of the laying of foreign submarine cables and pipelines in its EEZ, China violates articles 112 and 113. China also has failed to appear before compulsory dispute arbitration with the Philippines in accordance with articles 288 and 298. There are many more such examples, but you get the idea.

So, what would Reagan do about China’s failure to comply with UNCLOS? In 1982, President Reagan announced he would not sign UNCLOS due to “several major problems” on the rules for deep seabed mining. Nonetheless, Reagan realized most provisions of UNCLOS concerning traditional uses of the oceans confirm and reflect long-standing maritime law and state practice. Accordingly, on March 10, 1983, he proclaimed the United States “…is prepared to accept and act in accordance with the balance of interests relating to traditional uses of the oceans – such as navigation and overflight.” This is why Reagan is the most consequential U.S. president on the law of the sea, even though he declined to sign the Convention. Every U.S. president since has followed Reagan’s 1983 proclamation.

Even though the United States is not a party, all subsequent administrations have complied with the rules in UNCLOS (except those on seabed mining), just as they have insisted that other countries also comply. One important aspect of Reagan’s statement, however, has fallen by the wayside, with profound effect on U.S. policy and strategy in the oceans. Reagan’s acceptance of other countries’ claims over the oceans contained a critical condition or caveat that has been forgotten. Again, from the 1983 Reagan statement:

In this respect the United States will recognize the rights of other states in the waters off their coasts, as reflected in the Convention, so long as the rights and freedoms of the United States and others under international law are recognized by such coastal states (italics mine).

Reagan was willing to recognize coastal state claims under UNCLOS, such as the 12-nautical mile territorial sea and the 200-nautical mile EEZ, but only on condition that those states observe and respect the rights and freedoms of the United States and other states. Instead of adhering to this key caveat, however, all subsequent administrations have afforded the benefits of coastal state entitlements under UNCLOS to other states regardless of whether those states respected U.S. rights and freedoms.

The new approach reflects a bipartisan ideal that the United States is strongest when it serves as a beacon for the rule of law. Yet the current approach confers the entitlements and benefits of UNCLOS on states that deprive those very same rights to the United States and other countries. It may set a high-minded example, and evidence suggests that for some states it has worked to shape their policy and laws. With regard to China, however, the U.S. approach has been woefully ineffective, and it is not what Ronald Reagan would do. For recalcitrant states such as China that are not influenced by the positive example of the United States, perhaps it is time to invoke the forgotten caveat of Reagan’s policy.

James Kraska is Howard S. Levie Professor of International Law in the Stockton Center for the Study of International Law at the U.S. Naval War College.

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