THE United Nations Convention on the Law of the Sea (Unclos) is the key to stability and peace in the South China Sea (SCS).
But big power ambivalence toward the treaty has become the single biggest cause of disputes, incidents and near accidents in the waterway.
The SCS would not be a flashpoint or hot spot for global conflict if 1) China, a state party to the treaty, would respect and support the Unclos provisions on exclusive economic zones (EEZ) and navigational freedoms; and if 2) the United States would finally ratify the treaty.
China ratified Unclos in 1984. In one of its first acts as a member of the United Nations, China joined in the negotiation of the treaty from 1972 to 1983, and became one of the early states to ratify the agreement. With the rise of Xi Jinping to power, however, China has turned back on its word; it has opposed major provisions of Unclos by openly refusing to respect or recognize the exclusive economic zones of five Association of Southeast Asia (Asean) claimants in the SCS, including the Philippines.
But for China’s shirking of its obligations as a state party to Unclos, there would be little debate and anxiety today over the South China Sea.
The ambivalence of the United States toward Unclos is of a different order.
Although Washington was an early advocate in the negotiation of Unclos, the US, specifically its Senate, has repeatedly refused to ratify the treaty.
Why Unclos?
Before the development of Unclos, the maritime concept that stood above all was simply “freedom of the seas,” which belonged to no one state.
The ambivalence of the United States toward Unclos is of a different order.
Although Washington was an early advocate in the negotiation of Unclos, the US, specifically its Senate, has repeatedly refused to ratify the treaty.
Why Unclos?
Before the development of Unclos, the maritime concept that stood above all was simply “freedom of the seas,” which belonged to no one state.
In 1945, President Harry S. Truman became the first leader to challenge this by claiming rights to the United States’ continental shelf and all resources within. Following this example, many states began claiming territorial seas up to 12 nautical miles from their coasts.
Unclos was adopted in 1982 to codify widely accepted international customary law regarding navigational freedom and rights of vessels on the high seas while defining a state’s jurisdiction over resources in their exclusive economic zones and coastal continental shelves. The convention includes provisions regarding the coastal state jurisdiction in maritime zones, protections against damage to the maritime environment, and passage through territorial seas, international straits and archipelagic waters.
In short, as a US Navy Judge Advocate General put it, Unclos establishes stable maritime zones, including a maximum outer limit for territorial seas; codifies innocent passage, transit passage and archipelagic sea lanes passage rights; prevents coastal nations from expanding their own maritime zones; and reaffirms sovereign immunity of warships, auxiliaries and government aircraft.
Why Chinese ambivalence?
It took nine years from 1973 for the international community to finalize the UN conference that finally agreed on Unclos in 1982. For China, this was its first multilateral negotiation after having joined the UN in 1971. China was grateful for the support it got from the Third World countries, which had played an important role in deciding to let the PRC take over China’s membership in the UN from the Kuomintang government on Taiwan in 1971. In these circumstances, China had to support the Third World in their demand for a 200 nautical mile EEZ.
Liu Feng, former vice president of China’s National Institute for South China Sea Studies, has contended that China was a big loser in Unclos due to its unfavorable geographic location.
China in the past emphasized its advantage in possessing a vast territory. Official geography textbooks cited China’s long boundaries and coastlines and bountiful natural resources. But in recent years, Chinese leaders have realized that in spite of China’s 18,000-kilometer coastline, geography might actually be a constraint to its maritime ambitions. The main geographic disadvantages are: It is open to seas but not oceans and China’s maritime space lacks breadth. Even though China borders four seas — the Bohai Sea, Yellow Sea, East China Sea and South China Sea — all of them are enclosed by island states. This means that China has to share its maritime space with other countries. While the South China Sea offers more space, it is enclosed by nations making big sovereignty claims. Liu argues that the 200 nautical mile EEZ rule agreed upon in Unclos greatly restrains China’s maritime space.
It was because of this that China came up with the so-called nine-dash-line map to justify its incredible claim to all of the South China Sea region, to the consternation of the world.
This is why China has refused to respect or recognize the EEZs of the five Asean claimants, and why it prevents the claimants from exercising their right to explore for or develop mineral deposits in their zones.
Why US ambivalence?
The United States exhibited great influence in the early years of Unclos’ development. A paper written for the US Navy, “What really stopped the United States from ratifying Unclos in the 1980s?” explains why.
“Experts then and now, disregarding initial concerns, largely agree that the decision of the US not to sign Unclos in 1982 was more ideological than practical. At the time, the Reagan administration aimed to close out the Cold War and age of communism that had become anathema in American society. Thus, it was argued that President Reagan made his choice not only for perceived economic ramifications, but with the intent of standing against the convention’s overarching theme of globalization, which harbored implications of shared wealth and resources for developing and landlocked states….
“Since then, a number of presidents, including Bill Clinton, George H. W. Bush and Barack Obama, have unsuccessfully lobbied for the Senate to ratify it. For the US to retake its position as a global leader, and for the US Navy to be seen as a legitimate extension of that leadership, it is time for the Senate to finally give its advice and consent to accede to Unclos. The Navy’s surface combatants effectively project American power abroad and enforce freedom of the seas in routine freedom of navigation operations. This mission has become especially significant in the wake of aggressive actions and provoking claims at sea made by our adversaries abroad. However, exerting military strength is not enough. The formal acceptance of Unclos by the United States will diplomatically support national interests abroad, secure American influence in the maritime domain, and more proactively underpin the efforts of the US surface navy.”
Xi’s sweeping claim, militarization strategy
In Chinese popular lore, it is said by the Chinese that Mao Zedong made China proud and respected; Deng Xiaoping made China rich; and Xi Jinping in turn has vowed to make China strong.
China under Xi has adopted a sweeping claim and militarization strategy that piles on the activities, incidents, provocations and problems as a way to shock and awe rivals and opposition.
The nine-dash-line map, building of artificial islands, incursions into the exclusive economic zones, and relentless military buildup are all part of the same quilt.
China began constructing artificial islands in 2013, developing 3,200 acres of artificial landmass that it used to claim additional airspace, territorial waters, and a larger exclusive economic zone that overlaps those of other states which are party to Unclos.
The US has challenged China’s claims, but Beijing sees no reason to respect the US position because it is not a signatory of Unclos. Some may argue that a continuous display of US naval strength in the SCS (through freedom of navigation operations) is enough to counter Chinese hegemony. But diplomatic power is just as important. The US needs to be party to Unclos. Its standing outside the international community in the maritime treaty only emboldens China.
China has been illegally building military bases on disputed islands and reefs in the South China Sea. These activities are contrary to Unclos.
Nearly 40 years ago, the Reagan administration and the US Senate backed away from Unclos for reasons that made little sense then and none today.
Since then, a number of US presidents unsuccessfully lobbied for the Senate to ratify it.