By: Christopher Mirasola*
Popular media has largely ignored recent satellite imagery shows that China recently finished construction of an artificial island, helipad, and anti-aircraft tower in the Spratly Islands, a highly contested piece of territory. Given that this is just the most recent episode of a larger push for military construction, it is concerning that Congress has largely failed to engage with the administration’s “pivot” towards East Asia. This restricted debate risks missing an important opportunity to address one of the most baffling deficiencies in America’s East Asia policy: ratifying the UN Convention on the Law of the Sea (UNCLOS).
I. UNCLOS: History & Basics
By the 1970s, a growing consensus had emerged: customary international law could no longer adequately address a range of modern maritime problems. New technologies and Cold War tension made it increasingly difficult to manage deep seabed mining, migrating fish stocks, pollution on the high seas, and conflicting territorial claims. UNCLOS, after nine years of negotiation, was designed to comprehensively address each of these issue areas by creating multilateral mechanisms for addressing disputes, including the International Seabed Authority (ISA) and International Tribunal on the Law of the Sea. Though the treaty came into force in 1994, industrialized nations, most famously led by President Reagan, refused to join. In particular, these nations opposed the regime for deep seabed mining, which required transferring mining technology and redistributing mining royalties to less developed member states.
To accommodate these concerns, Part XI, which governs deep seabed mining, was renegotiated during the Clinton administration. First, the renegotiated sections removed transfer of seabed mining technology to less developed member states. Second, the U.S. was given a permanent seat on the ISA with budgetary veto authority to determine how mining royalties are distributed. Since renegotiation ended in 1998, 166 nations, including every other industrialized nation, has signed, ratified, or acceded to UNCLOS. The Clinton, Bush, and Obama administrations all urged Senate approval. Every Chairman of the Joint Chiefs since 1994 has supported signing the treaty. Yet, when it was again brought up for approval in August 2012, 34 Senators pledged to vote nay, dashing any hopes that it could muster a two-thirds majority.
II. Continuing Opposition
Most of those arguing against ratification continue to criticize terms of the deep seabed mining regime based on a singular preoccupation with President Reagan rejecting the treaty 22 years ago. The Heritage Foundation has provided a sampling of these arguments both in hearings before the Committee on Foreign Relations and through its factsheets. While the U.S. must undoubtedly preserve U.S. sovereignty in an uncertain world and despite the fact that much of UNCLOS is based on customary principles of international law to which the U.S. already adheres, it is telling that the U.S. Chamber of Commerce and important actors in the oil, energy, shipbuilding, shipping, fishing, and communications industries (as well as environmental groups) have all urged Senate approval.
III. UNCLOS in the South and East China Seas
One of the most important reasons for ratification, perhaps least discussed in popular media, is UNCLOS’ pivotal role in mediating territorial disputes in the South and East China Seas. Territorial disputes between China and its neighbors implicate most of Southeast Asia, including the Philippines, Vietnam, Malaysia, Brunei, and Taiwan. Chief among them are contested claims to the Parcel Islands (Vietnam), Scarborough Shoals (Philippines), and widespread disagreement over the legitimacy of China’s claims to great swaths of the South China Sea through the 9-dash line. Moreover, there has been little progress in resolving these disputes through bilateral U.S. – China negotiations, including the Strategic and Economic Dialogue. Scholars have cited UNCLOS as a potential mechanism for mitigating these issues in House Foreign Affairs Committee and Armed Services Subcommittee on Sea Power briefings, among others. Ratifying UNCLOS is essential to American regional interests for four reasons.
First, the U.S. has repeatedly emphasized that territorial disputes should be addressed multilaterally and has repudiated efforts, led by the Chinese, to address problems with individual Southeast Asian nations. As pointed out by the Center for New American Security, however, American arguments in favor of multilateralism are “robbed of moral authority” when the U.S. refuse to support the most comprehensive mechanism for multilateral resolution of maritime disputes. By not ratifying UNCLOS, American arguments regarding the region’s most complex issues are all too easily left open to rhetorical attack by those opposed to multilateralism. More importantly, it betrays a dangerous ambiguity about America’s commitment to opposing unilateral solutions.
Second, ratifying UNCLOS will allow us to participate in and help shape dispute resolution mechanisms like the International Tribunal for the Law of the Sea. Military officers and Bush administration national security staff have highlighted the importance of shaping norms that define these territorial disputes. The Philippines, in the International Tribunal, has already raised key issues regarding China’s 9-dash line and a preliminary decision is expected sometime in 2015. Professor Dutton from the U.S. Naval War College has further emphasized that China’s interpretation of key UNCLOS provisions is part of a “coordinated legal campaign to extend maximal security jurisdiction over the East China Sea and the international airspace above it.” It is true that some dispute whether ratifying UNCLOS would materially change China’s understanding of these territorial rights. However, the U.S. cannot sit on the sidelines as ITLOS creates precedent that will become binding on 166 of the 193 states recognized by the United Nations. Customary international law is, by its very nature, subject to change with developments in state practice and understandings of legal obligation (opinio juris). In a foundational case, the International Court of Justice found that treaty provisions become customary law when they are followed by specially affected states. By not signing UNCLOS, the US, certainly a specially affected state, robs its decisions of any potency as a source of customary law.
Those who assert that America can depend on the strength of its navy and existing customary international law need to face the twin realities that China is increasing its military expenditures and that American forces are overstretched in the face of sharp budget cuts. The U.S. cannot assume that China will adhere to traditional interpretations of customary international law, principles that they had little hand in crafting and do not necessarily serve China’s national interest. Indeed, China has already begun to push back against the customary freedom of navigation afforded to military craft (mainly American) in its exclusive economic zone. The U.S. should take an active role in supporting traditional interpretations of customary international law by engaging in a variety of fora, including the International Tribunal for the Law of the Sea, lest the U.S. cripple itself in this essential debate.
Third, aside from ad hoc diplomacy and negotiations within Association for South East Asian Nations (ASEAN), whose decisions require unanimity, UNCLOS is one of the few multilateral mechanisms that can directly address territorial disputes in the seas. General Dempsey, Chairman of the Joint Chiefs of Staff, noted that ratifying UNCLOS, “gives us another tool to effectively resolve conflict at every level.” While it is true that ratifying UNCLOS hasn’t vindicated Japan, for example, in its dispute with China, the treaty has only enjoyed widespread support for sixteen years. Given this short history, it is almost surprising that the Philippines has already asserted this type of claim against China through UNCLOS to bolster its relatively weak strategic position. UNCLOS, therefore, is useful insofar as it provides another venue through which the U.S. could press its claims in the region. American treaty obligations with both Japan and the Philippines give us a strong interest in legitimizing and shaping these new multilateral dispute resolution mechanisms.
Lastly, ratifying UNCLOS enshrines in treaty law the legality of the U.S. Navy’s presence in the South and East China Seas. As China becomes increasingly confident projecting power over maritime territory disputed by both Japan and the Philippines, it is essential that the U.S. operate on more than just international customary law. America’s naval presence is most potent when it is based on solid strategy, military preparedness, and unassailable legal authority.
IV. A View to the Future
Since UNCLOS was renegotiated in 1998 to address American concerns about deep seabed mining, a recalcitrant minority of Senators have stymied final ratification. The business community disagrees with them. Environmental groups disagree with them. Administrations with wildly different political goals disagree with them. Now, as the Obama administration enters its final years and the world awaits news from the first arbitration hearing to address Southeast Asia territorial disputes, it is essential that the U.S. join the community of nations and ratify UNCLOS.
* Christopher Mirasola is a JD/MPP Candidate at the Harvard Law School and a member Harvard’s National Security Research Committee.
 James P. Benoit, Mistreatment of the Wounded, Sick and Shipwrecked by the ICRC Study on Customary International Humanitarian Law, Yearbook of International Humanitarian Law, Volume 11 (2008) at 179.