Why to Forget UNCLOS

The Obama administration seems determined to put political science theories to the test by “binding” China into the rules-based order over which the United States presides. Only this time, China is already a signatory to the rules in question. The Obama administration seems to think it is the United States that needs the binding.

The timing of this new push over the U.N. Convention on the Law of Sea, signed by President Bill Clinton and then defeated by the Senate in 1994, is curious. One need only scan the past three years of Chinese activities in the South China, East China, and Yellow seas to find evidence that China intends to change the maritime status quo in ways detrimental to U.S. interests.  Despite ratifying UNCLOS, China’s maritime behavior in East Asia runs contrary to international law and custom as they have been commonly understood for centuries.

Where customary international law has protected the traditionally expansive understanding of freedom of the seas – allowing open access to all but narrow bands of territorial waters along national coastlines – China is trying to curtail that access, fence off its peripheral waters, and deny to other maritime nations the freedom of navigation they have long and lawfully enjoyed.  What’s the argument for signing UNCLOS when China itself doesn’t adhere to the law? When it turns out that the letter of the law is less clear than its proponents think?   Given these problems, U.S. ratification of UNCLOS won’t resolve Sino-U.S. disagreements; it will only lead to endless legal and diplomatic wrangling.

Arguments for UNCLOS ratification now are even more bizarre given that international law and the balance of power favor the United States. To ratify the treaty at this time would be to signal approval to other states of faulty interpretations of international law while committing the United States to endless dispute resolution in international bodies that haven’t historically favored its interests. Washington would put itself in a position where it might have to ignore the treaty’s dispute resolution clauses to further its interests. Why sign a treaty we will have to violate?  In doing so, wouldn’t Washington cede the moral high ground it now holds by simply following established custom?

No, ratification of UNCLOS will not help Washington and Beijing resolve their maritime disputes. Rather, resolution lies in the United States’ continued exercise of its rights in international waters, diplomatic negotiations with China and American friends and allies, and continued military supremacy.

Through military and diplomatic pressure and “lawfare” China is trying to carve out a sphere of control in most of the South China Sea and parts of the East and Yellow Seas. Consider the following incidents:

– In 2001, a Chinese J-8 fighter collided with an unarmed U.S. EP-3 surveillance aircraft over international waters in China’s exclusive economic zone, forcing an emergency landing on Hainan island and putting at risk the lives of American servicemen and women.

– In 2009, China harassed unarmed U.S. naval vessels in the Yellow Sea and South China Sea, including the USNS Impeccable.

– Last year, China unilaterally declared a fishing ban in parts of the South China Sea that China doesn’t own.

– Also in 2011, a Chinese fishing boat cut the survey cables of a PetroVietnam ship in an area more than 1,000 kilometers (622 miles) from China’s Hainan island.

– Beijing has also been asserting its territorial claims close to the Philippines’ Palawan Province, which lies near the Spratlys, a potentially oil- and gas-rich chain of islands, disputed by China, the Philippines, Taiwan, Vietnam, Malaysia and Brunei. Last March, two Chinese vessels tried to drive away a Philippine oil exploration ship from Reed Bank, another area west of Palawan. Two Philippine air force planes were deployed, but the Chinese vessels had disappeared by the time they reached the submerged bank.

This inventory of incidents reveals that China is relying on military pressure to accomplish its two primary goals in its peripheral waters: halting U.S. military activities that centuries of custom have deemed lawful and realizing its expansionist territorial claims.

Though China has ratified UNCLOS, it has proceeded to undermine it. For example, its statements that the United States is acting illegally in conducting surveillance in China’s exclusive economic zone (EEZ) are inconsistent with the custom that maritime nations enjoy high seas rights in all but a coastal state’s territorial waters (which extend only 12 nautical miles from a country’s shores). The EEZ is a creation of UNCLOS meant to protect coastal states’ rights to economic resources in an area up to 200 nautical miles from the coast.  U.S. military activities in China’s EEZ, such as naval exercises or surveillance flights, are not prejudicial to China’s exploitation of resources there.  In other words, they are lawful.

The U.S. relies on customary international law as well as those UNCLOS provisions that are consistent with customary international law to guide its military activities.  Specifically, Article 58 of UNCLOS, provides that in the EEZ “all states, whether coastal or land-locked, enjoy, subject to the relevant provisions of this convention, the freedoms…of navigation and overflight…and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships [and] aircraft.”

China alleges that these activities constitute a use of force and that the U.S. is “preparing the battlefield” by conducting such activity.  The Chinese claim that these actions undermine China’s security.  This is a mischievous interpretation of UNCLOS and one that’s indicative of a larger challenge: this kind of clever lawyering pokes holes in UNCLOS. In so doing, China is attempting to rewrite long-established and accepted international law.

Such lawyering was on display in the dispute over the USNS Bowditch surveying operations in the Yellow Sea in the early 2000s. The unarmed Bowditch was conducting hydrographic surveys in the Yellow Sea, including acoustic data tests that are useful to detect submarines.  The U.S. has argued that naval hydrographic and oceanographic surveys shouldn’t be considered “marine scientific research” (as such surveys are not for scientific purposes), an activity that coastal states are allowed to regulate in their EEZs under UNCLOS.

China doesn’t agree, and has won some international sympathy for its position.  Now some in and out of China claim that because information collected by a foreign military may have economic and scientific value, UNCLOS permits coastal states to restrict such military surveys in their EEZs.

The Chinese justified their claim that the Bowditch was conducting what UNCLOS calls “marine scientific research” in its EEZ by referring to UNCLOS Article 258.  This provision states:  “the deployment and use of any type of scientific research installations or equipment in any area of the marine environment shall be subject to the same conditions as prescribed in this Convention for the conduct of marine scientific research in any such area.” The Bowditch deployed scientific equipment, the Chinese argue, and thus needed Chinese permission before it began its work.

Traditionally the freedom of the high seas has included the use of the seas for military maneuvers or exercises, including the use of weapons.  This freedom – including the freedom to operate in EEZs – was supposed to be incorporated into UNCLOS[AJH1] . But the language in the provisions pertaining to conduct of military activity in EEZs leaves far too much wriggle room for mischief.

For example, China says that foreign warships must obtain its approval before they can do anything but pass through its exclusive economic zone. A Chinese Defense Ministry spokesman, Senior Col. Geng Yansheng, stated in 2010: “We will, in accordance with the demands of international law, respect the freedom of passage of ships or aircraft from relevant countries which are in compliance with international law” (emphasis added).  Chinese officials are trying to limit U.S. naval activity in China’s EEZ’s to “passage” from one destination to another.

This means that the Chinese are claiming that  heretofore lawful activities(task-force maneuvering, flight operations, military exercises, weapons testing and firing, surveillance and reconnaissance operations and other intelligence-gathering activities, and military marine data collection or military surveys)conducted in EEZs  should now be treated as prejudicial to Chinese rights, including China’s duty to protect the marine environment. If these interpretations gain currency, UNCLOS will prove prejudicial to the rights of maritime nations such as the United States.  Law should provide clarity, but UNCLOS is unclear as to what military activities are allowed in a country’s EEZ. China is cynically exploiting the law’s vagaries to further its political goals and its desire to project power.

Herein lies a major danger in U.S. ratification of UNCLOS. In adopting, promoting, and acting on new interpretations of international law, China is attempting to upset the status quo and establish new norms of maritime behavior. By signing up to UNCLOS, the United States might unintentionally signal approval of these errant interpretations.

In 2009, China asserted “indisputable sovereignty over the islands of the South China Sea and the adjacent waters” and claimed to “enjoy sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof.” In support of these claims, Beijing submitted to the U.N. Commission on the Law of the Sea a map featuring the now-famous U-shaped line, which encompasses almost the entirety of the South China Sea and skirts the coasts of the Philippines, Malaysia, Brunei, and Vietnam.

UNCLOS makes a distinction between islands and other features, such as rocks. An island is defined as “a naturally formed area of land, surrounded by water, which is above water at high tide.”   Islands are entitled to a 200 nautical mile EEZ. Other features found at sea – including rocks, reefs, islets, and sandbanks – were not given this entitlement: “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” China appears to be claiming a series of “rocks” and “reefs” – calling them islands – so that it can also claim the EEZ’s around them. Call it creeping territorial expansionism. If it works, China will have established the legal basis for claiming most of the South China Sea as its territory.

China has compelling reasons to claim control over this wide expanse of waters. The South China Sea is thought to be resource-rich. The numbers vary, but high-end Chinese estimates suggest that the sea contains over 200 billion barrels of oil and 2 quadrillion cubic feet of natural gas. The sea is home to rich fishing grounds as well. If Beijing were to succeed in establishing its claims to features throughout the South China Sea, the resulting EEZ would allow China – and China alone – to harvest those resources.

China likewise has security interests in its extensive South China Sea claims. As noted above, Beijing has reinterpreted international law to assert that it can deny access to its EEZ by foreign military vessels. Successful realization of China’s claims is the first step toward keeping foreign military assets out of those waters. There are three broad reasons why it wishes to do so.

Firstly, sovereignty over the South China Sea would grant China significant, additional strategic depth.  At present, from China’s point of view, its coastal cities – key centers of economic activity – are vulnerable to attack from the sea.  Keeping foreign warships and military aircraft distant from China’s shores would make it easier for the PLA to defend China’s southern coastline.  It would also enable China to more easily project power close to its neighbors’ shores and thus threaten U.S. allies like the Philippines and friends such as Singapore and Indonesia.

Second, China is highly dependent on resource imports from the Middle East. In 2010, 47 percent of China’s oil imports came from the Middle East; 30 percent came from Africa[AJH2] . These imports pass through chokepoints that China doesn’t control, notably the Malacca Strait, but also the Lombok and Sunda Straits in Indonesian waters. Chinese defense officials have referred to this situation as the “Malacca dilemma.”

Chinese sovereignty over the South China Sea would allow it to more easily project power into those straits and, on the flip side, make it more difficult for the United States to do so. This would make it more difficult for the United States to conduct operations in these vital waters against China, while making it easier for China to operate against the United States – and our allies Japan, South Korea, and Taiwan. It would also enable the Chinese navy to more easily project power into the Indian Ocean, where American and Indian vessels have long operated unimpeded.

Third, Chinese control over the South China Sea would make it easier for the PLA Navy to project power into the Pacific Ocean. Such control would, in particular, make it more difficult for the United States to monitor Chinese submarines deploying from their underground base at Hainan Island. A Chinese Navy that can more easily sail into the Pacific is one that can more easily threaten U.S. assets and U.S. territories in the region.

The United States clearly has an interest in seeing China fail to make its South China claims a reality – even if it somehow did so without resorting to force. The question is, how does the United States succeed?

Proponents of UNCLOS ratification claim that the United States can’t counter China’s claims without ratifying UNCLOS itself. Yet the United States already acts in accordance with international law and custom, whereas China, which has ratified UNCLOS, uses UNCLOS to flaunt the law.

By twisting the UNCLOS into pretzels, China is changing the rules of the game.  The liberal order made rules to accommodate the rights and interests of those who decided to participate in it. It turns out China doesn’t much like those rules and is attempting to overturn them – especially those rules that protect freedom of navigation and those that make it difficult for China to pursue its territorial ambitions in Asia. Ratifying UNCLOS isn’t an effective way to combat that effort.  These disputes are about power politics and neither China nor the United States will allow them to be settled in court – UNCLOS approved or otherwise.

Rather, the United States must continue doing what it has always done. It should continue to operate naval vessels in international waters – including in other countries’ EEZs – where and when it wants to do so. Operations should run the gamut of peaceful activities – surveillance activities, exercises, and so on.

And Washington must clearly state its intention to continue abiding by centuries-old customary international law pertaining to freedom of the seas including provisions of UNCLOS that are consistent with those practices.  In interactions with Chinese counterparts, American diplomats should repeatedly and consistently restate the American position – there should be no question as to where the United States stands.

As it does so, the U.S. should engage China in diplomacy, pointing out – among other matters – that China itself conducts military activity in other countries’ EEZs.  We need rules of the road with China to manage competition, not wishful thinking about what U.N. bodies can resolve.

It has always been practice that has determined international law of the oceans. China understands this, and is working to shift law and custom through its own practices. Only by continuing to act on the high seas as it always has can the United States hope to maintain a system of international rules that serves its own interests. Ratifying UNCLOS could very well have the opposite effect.

Dan Blumenthal director of Asian Studies at the American Enterprise Institute. Michael Mazza is a Senior Research Associate in Foreign & Defense Policy Studies at AEI.