Will Ratifying UNCLOS Help the U.S. Manage China? I Doubt It

by Julian Ku

A subcommittee of the  U.S. House of Representatives’ Foreign Affairs Committee held a much-needed hearing to educate themselves on China’s recent activity in the East and South China Seas.  Professor Peter Dutton of the Naval War College, along with two other experts on Asian affairs, gave interesting and useful testimony on the nature of China’s maritime disputes with Japan, the Philippines, Vietnam, and other Asian countries.

There is a lot of interesting stuff here, but my attention was particularly caught by Professor Dutton’s recommendation (seconded by Bonnie Glaeser of the Center for Strategic and International Studies) that the U.S. ratify the UN Convention on the Law of the Sea (UNCLOS) as part of a multifaceted strategy to manage China’s sort-of-aggressive strategy to expand its power and influence in the region.  Here is Professor Dutton’s argument:

Accordingly, to ensure its future position in East Asia, the United States should take specific actions to defend the international legal architecture pertaining to the maritime and aerial commons. Acceding to the United Nations Convention on the Law of the Sea and once again exercising direct leadership over the development of its rules and norms is the first and most critical step. The Department of State should also re-energize its Limits in the Seas series to publicly and repeatedly reinforce international law related to sea and airspace. A good place to begin the new series would be with a detailed assessment of why international law explicitly rejects China’s U-shaped line in the South China Sea as the basis for Chinese jurisdiction there. Others could be written to describe why China’s East China Sea continental shelf claim misapplies international law and why China’s ADIZ unlawfully asserts jurisdiction in the airspace. My sense is that East Asian states, indeed many states around the world, are desperate for active American leadership over the norms and laws that govern legitimate international action.

I understand the force of this argument. The U.S. already adheres the key principles in UNCLOS, so joining UNCLOS will allow the U.S. to push back more effectively against China’s aggressive and expansionary activities.

But is there really any evidence that formal accession would change China’s view of the U.S. position on UNCLOS issues?  China is already a member of UNCLOS and other countries (like Japan and the Philippines) are also members of UNCLOS. But I don’t think UNCLOS has really bolstered their effectiveness in pushing back against China.  Moreover, as Professor Dutton explains, China has a radically different interpretation of its authority to regulate foreign ships and aircraft in its Exclusive Economic Zone under UNCLOS.  How will joining UNCLOS help the U.S. change China’s interpretation of UNCLOS?

As a practical matter, UNCLOS does have a way of compelling member states to conform their interpretations: mandatory dispute settlement in the International Tribunal for the Law of the Sea or in Annex VII arbitration.  But as China and Russia have demonstrated in recent years, these mechanisms are not likely to be a serious constraint, especially on questions that touch sovereignty (which is how China frames most of its activities).  I suppose if the U.S. joins UNCLOS, and subjects itself to UNCLOS dispute settlement, that might make a difference.  But I don’t think it would be a very large one (after all, Japan, China, and the Philippines are all already subject to UNCLOS dispute settlement, which has accomplished little so far).

I should add that the U.S. joining UNCLOS is hardly the most prominent of Professor Dutton’s recommendations.  His (and his co-panelists) had lots of good strategic policy recommendations.  I think the law may be important here, but I am skeptical that it will be as effective as he (and many analysts) are hoping.

http://opiniojuris.org/2014/01/16/will-ratifying-unclos-help-u-s-manage-china/

3 Responses

  1. Few people have the depth of knowledge on the South China Sea (SCS) and the law of the sea as Peter Dutton, but I agree with you that there is no evidence that U.S. accession to UNCLOS would resolve the ongoing disputes in the SCS.

  2. Ratification of UNCLOS by the US will by no means find a solution or pave a way to managing the ongoing imbroglio for the simple reason that UNCLOS is open for interpretation by various nations leading to the existing differences. One example is the Chinese and US interpretation of articles 56 (Rights, jurisdiction and duties of the coastal State in the exclusive economic zone) and 58 ( Rights and duties of other States in the exclusive economic zone). However, ratification by US would strengthen its standing, in the long run, on issues that it considers pertinent, eg freedom of navigation et al.       

  3. Although it seems extremely unlikely that the US will accede to UNCLOS, I do agree that the prospect of Annex VII dispute settlement is a useful adjunct to diplomatic efforts to assist China to understand the reasons that the international community overwhelmingly rejects the U shaped line as a basis for its somewhat ambiguous claims.  By way of example, the Philippines arbitration request may lead to clarification of the distinction between rocks and islands and such clarification would assist all regional states to develop their claims on a more solid foundation.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.