South China Sea Dispute Compels Washington to Ratify Sea Law

BANDAR SERI BEGAWAN, Brunei (July 1, 2013) U.S. Secretary of State John Kerry gives remarks during the U.S.-ASEAN Ministerial Meeting [State Department photo by William Ng/Public Domain]

The upcoming US-ASEAN summit on February 15-16 in Rancho Mirage, California provides an opportunity for the Obama administration to boldly demonstrate its rebalance towards Asia, and for the U.S. Senate to assert America’s national interests by ratifying the UN Convention on the Law of the Sea (UNCLOS).

Since the ten countries that make up ASEAN are home to 660 million people and represent the world’s seventh largest economy, it’s vital to demonstrate proof of strategic commitment to US allies, to denounce China’s militarization of outposts, and to uphold freedom of navigation in the South China Sea.

It’s clear that more US military leaders, national security planners, policy pundits, and ASEAN members like the Philippines, Malaysia, and Vietnam, are impatiently waiting for this treaty approval to effectively address and to manage China’s continued aggressive actions to expand its power and influence in the contested South China Sea.

The Law of the Sea Treaty, formally known as the Third United Nations Convention on the Law of the Sea, was adopted in 1982. One hundred and sixty-two countries, including China and Russia, are signatories to the treaty that governs the world’s oceans. The United States is not.

The time has come to put partisan politics aside, and focus on national interests. While the U.S. Navy’s 7th Fleet continues to reinforce freedom of the seas or rather ‘Freedom of Navigation Operations,’ in the South China Sea’s troubled waters, the formal treaty defines limits of a country’s territorial sea, establishes clear rules for transit through “international straits,” and “exclusive economic zones (EEZs).”

In short, as a signature to the treaty, it allows the US military complete freedom of action and does not interfere with critical American-led programs like the Proliferation Security Initiative. Washington has long declared our interests and respect for international law, freedom of navigation, and peaceful resolution of disputes.

Naturally, the most pressing challenge facing the South China Sea is how to avoid any resort to violence among armed forces of the various claimant states that could lead to further escalation and to the possibility of military engagement by greater powers.

With the ratification, the United States would have legal standing to bring any complaints to an international dispute resolution body and thus avoid possible confrontation with Chinese naval forces and paramilitary fishing trawlers around the Spratly Islands.

Furthermore, the treaty provides formal cooperation with other countries, because almost all of America’s allies, neighbors, and friends are party to the Convention. The political mantra is simple: the U.S. requires maximum freedom both for naval and commercial vessels to navigate and to operate off foreign coasts without interference.

With a ratification vote, America can secure its navigational freedoms and global access for military and commercial ships, aircraft, and undersea fiber optic cables. The U.S. currently asserts its rights to freedom of navigation through customary international law, which is subject to change and diplomatic interpretations.

The ratification of UNCLOS will enable the U.S. to regain its rightful strategic place in the Pacific and transform rhetoric into action. Despite the Administration’s lame duck status, it is imperative that our military treaty partners in Asia know that we remain the world’s pre-eminent maritime power. The present concern is that some UNCLOS member states are trying to re-shift the balance away from freedom of navigation and free transit of international waters.

UNCLOS membership grants the U.S. the power and credibility to support and promote the peaceful resolution of disputes within a rules-based order.

Of course, the exclusion of the U.S. last year from the Permanent Court of Arbitration hearings concerning the Republic of the Philippines vs. the People’s Republic of China is a warning of problems to come. By not ratifying the UNCLOS Treaty, America is cutting itself out of a considerable amount of leverage for international support for its concerns, such as freedom of navigation operations.

Naturally, the most pressing challenge facing the South China Sea is how to avoid any resort to violence among armed forces of the various claimant states that could lead to further escalation and to the possibility of military engagement by greater powers. There’s compelling evidence that UNCLOS provides guideposts on the rights of coastal states while offering little or no answers to territorial sovereignty.

Failure to join nets only wasted political capital for even nearby upstream environmental concerns. For example, Professor John McManus, a noted marine biologist at the University of Florida, claims that some of the lobsters being caught in Florida are believed to be transported in from other countries as larvae, such as from Antigua, Bermuda or Cuba, all upstream from Florida. If the U.S. were to establish that poor fishery management practices in those countries were damaging the lobster fishery and associated economy in Florida, then UNCLOS would be a rational basis for arbitration on the issue.

However, the U.S. currently relies on a hypocritical stance that UNCLOS standards should apply to international dealings on the seas despite its own lack of ratification. Next month’s summit offers an ideal venue to build on the deeper partnership that the United States has forged with ASEAN and may succeed in advancing the administration’s Asia rebalance.  The announcement of a plan to ratify UNCLOS will inspire confidence and trust in America’s word.

Finally, accession would ensure America’s ability to address the benefits of the opening of the Arctic – a region of increasingly important in terms of maritime security and economic interests. It’s true that the UNCLOS establishes exclusive economic zones. While the United States insists on implementation of exclusive economic zones, it has refused to ratify the treaty, perhaps as some suggest because of deeply entrenched political disagreements over the International Seabed Authority, created under the UNCLOS, to regulate deep-sea mining in international waters. Since the United States hasn’t ratified UNCLOS, it hasn’t been able to formally claim any underwater boundaries. And Russia questions why if the United States isn’t bound by the restrictions the UNCLOS imposes, should Russia accept them?

This translates into another looming maritime territorial and politicized problem that America can ill afford. Joining the Convention will maximize international recognition and acceptance of America’s extended continental Artic shelf claims.

Make no mistake about it. The UN Convention on the Law of the Sea may contribute to a solution, but it has also contributed to the scramble for maritime territory and resources.

Perhaps Professor of Law Bernard Oxman, former advisor on Oceans, Environment and Scientific Affairs to the US State Department and author of “The Territorial Temptation: A Siren Song at Sea” has it right when he writes,“ there is no plausible alternative to the system of territorial states, a system, that for all its limitations, continues to confer significant benefits on humanity.”

Let’s wait and see if the US-ASEAN Summit proves more than a mirage.


James Borton is a faculty associate at the Walker Institute at the University of South Carolina and a non-resident fellow at the Saigon Center for International Studies at the University of Social Sciences and Humanities in Ho Chi Minh City.


The opinions, beliefs, and viewpoints expressed by the authors are theirs alone and don’t reflect any official position of

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