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

by Julian Ku

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.

http://opiniojuris.org/2011/09/29/the-latest-argument-against-u-s-ratification-of-unclos-china/

5 Responses

  1. What is the basis for the statement that international courts are biased towards (or against) the US? Or, for that matter, that they would be against China?
    Since the Alabama claims through the prosecutorial strategy of the ICTY, to the ICJ and contemporary arbitral tribunals, international adjudication has possibly overall favoured US interests (while at times gently slapping the US) on the basis of the existing law. If the US and China abide by international law, they have nothing to fear from international adjudication.

  2. Keep in mind that when John Bolton sought senate confirmation as US Representative to the UN, he endorsed the Bush Administration policy of seeking Senate advice and consent to join the Convention. I understand that a nominee may not agree with all positions of an administration he seeks to serve and thus may endorse a position with which he personally disagrees, but in doing so, Bolton made clear that he did not view the LOS Convention as a critical issue and certainly not one that rose to the level of importance he placed on his own appointment to the position of US representative to the UN.

    The authors completely ignore the right of nations under the convention to exclude military disputes from binding settlement and the provisions that exempt military ships and aircraft (including ships and aircraft on government service) from all coastal state environmental laws and regulations. Before claiming that the Convention is a threat to the US military, the authors should address these points and the opinion of the Navy JAG officers who have a much better understanding of the letter and intent of the convention.

    Beyond that, Bolton and Blumenthal show a bit of hubris in lecturing India and Japan about their interests in the LOS Convention  (this is in a section of the op-ed that follows the excerpt above). Both nations are far more informed about the LOS Convention and their interests in it than are either Mr. Bolton or Mr. Blumenthal and they have made a very well informed finding that the Convention is in their interest.

    Overall, this appears more a reflexive reaction against global agreements in general than a studied analysis of pros and cons of the Convention.

  3. “If the Senate ratifies the treaty, we would become subject to its dispute-resolution mechanisms and ambiguities.”
    As has been pointed out,  the dispute  resolution  mechanism  is likely to  be unavailable when issues of military activities in the exclusive economic zone arise between a coastal State and a flag State.
    in his letter of submit­tal recommending  that the Convention be transmitted to the U.S. Senate for its advice and consent
    to accession and ratification, then Secretary  of State Warren Christopher explained:

    “Subject to limited exceptions, the Convention excludes from binding dis­pute settlement disputes relating to the sovereign rights of coastal States with respect to the living  resources in their EEZs. In addition, the Conven­tion permits a State to opt out of binding dispute settlement procedures with respect to one or more enumerated categories of disputes, namely disputes regarding maritime  boundaries between neighboring States, dis­putes concerning military activities and certain law  enforcement activities, and disputes in respect of which the United Nations Security Council is exercising the functions assigned to it by the Charter of the United Na­tions.”

    Article 298 of the Convention, “Optional  Exceptions to the Applicabil­ ity of Compulsory Procedures Entailing Binding Decisions” states:

    When signing, ratifying or acceding to the Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not
    accept any one or more of the procedures provided for in section 2 with respect to … disputes  concerting military activities, including military activities by government vessels and aircraft
    engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or
    tribunal. . . .
    it is also worth noting that every Chief of Naval Operations who has been asked about the issue since it became open for ratification in what 1982? , and every Chairman of the Joint Chiefs of Staff as well, has recommended ratification of UNCLOS to the Senate.  That’s because being a party to the treaty is a better national security position form the perspective of military power than is not being a p arty.
    If you are interested in a painfully detailed discussion on military activities in EEZs, you can read something I co-wrote with Captain George Galdorisi, USN (ret.) a former naval aviator, when I was an active duty Navy JAG Corps officer,:
    Galdorisi, Capt. George V. and Cmdr. Alan G. Kaufman, “Military Activities in the Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflict,” California Western International Law Journal 2002
    available here:  http://oai.dtic.mil/oai/oai?verb=getRecord&metadataPrefix=html&identifier=ADA457969
     
     

  4. I do believe several years ago the Navy stated it was in favor of the US joining the treaty.  I imagine they have a great sense of where their interests lie – better than Bolton et al.
    Best,
    Ben

  5.  
    “Overall, this appears more a reflexive reaction against global agreements in general than a studied analysis of pros and cons of the Convention.”
     
    Obviously. Bolton is an intellectual dwarf whose candidacy for Ambassador was too extreme to even get support from the Republicans on the Senate Foreign Relations Committee during the Bush era. His entire claim to authority on the U.N. comes down to his weird pathologies about US exceptionalism and his brief, unconfirmed recess appointment.

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