The Latest Argument Against U.S. Ratification of UNCLOS: China

John Bolton and Dan Blumenthal have an op-ed in tomorrow’s WSJ offering a new argument against U.S. ratification of the UN Convention on the Law of the Sea. It’s all about China.

…With China emerging as a major power, ratifying the treaty now would encourage Sino-American strife, constrain U.S. naval activities, and do nothing to resolve China’s expansive maritime territorial claims.

At issue is China’s intensified effort to keep America’s military out of its “Exclusive Economic Zone,” a LOST invention that affords coastal states control over economic activity in areas beyond their sovereign, 12-mile territorial seas out to 200 miles. Properly read, LOST recognizes exclusive economic zones as international waters, but China is exploiting the treaty’s ambiguities to declare “no go” zones in regions where centuries of state practice clearly permit unrestricted maritime activity.

Take the issues of intelligence, surveillance and reconnaissance, both by air and sea. LOST is silent on these subjects in the exclusive zones, so China claims it can regulate (meaning effectively prohibit) all such activity. Beijing also brazenly claims—exploiting Western green sensibilities—that U.S. naval vessels pollute China’s exclusive zone, pollution being an activity the treaty permits coastal states to regulate out to 24 miles.

China wants to deny American access to its nearby waters so it can have its way with its neighbors. Beijing is building a network of “anti-access” and “area denial” weapons such as integrated air defenses, submarines, land-based ballistic and cruise missiles, and cyber and anti-satellite systems designed to make it exceedingly hazardous for American ships and aircraft to traverse China’s exclusive zone or peripheral seas.

If the Senate ratifies the treaty, we would become subject to its dispute-resolution mechanisms and ambiguities. Right now, since we are the world’s major naval power, our conduct dominates state practice and hence customary international law—to our decided advantage.

As I’ve made clear before in other posts, I think joining UNCLOS is clearly a mixed bag for the U.S. I am not sure the China threat to the U.S. Navy (a threat I do think is very real), is going to be affected by the U.S. joining the treaty.  No matter whether the U.S. joins UNCLOS, China will advance exactly the same strategies against the U.S. Navy.

Moreover, the Exclusive Economic Zone is a concept that does not, in general, strongly support the Chinese position on excluding U.S. military vessels.  The dispute resolution procedures of UNCLOS are not very weighted against the U.S. since both nations would only agree to arbitration in such matters, where each would get to appoint at least one of the arbitrators. And it is also worth noting that China is even more skittish about international dispute resolution than the U.S. is. Apart from WTO proceedings, China has not been a party to any international court proceeding in since 1927.  And as I will argue in a forthcoming paper, it has strenuously avoided giving international courts any jurisdiction.  I think it is fair to say that international tribunals might be biased toward the U.S., but they might be even more biased against China.  Certainly, China believes this bias is true and why it has steadfastly demurred against calls from its neighbors to take their disputes to an international tribunal.

In any event, there is a certain irony to reading that John Bolton favors customary law over treaty law.  If the U.S. wants to shape the evolution of rules on EEZs, I don’t know why it is easier to do so from outside the treaty rather than inside the treaty. Being inside the treaty has lots of downsides, but I think critics are ignoring the upsides, and therefore simplifying what is really a tough decision for U.S. policymakers.