Call it the old “seat at the table” argument. The U.S. Senate should ratify the United Nations Convention on the Law of the Sea (UNCLOS), the argument goes, in order to give America “a seat at the table” in resolving maritime disputes. It’s an argument that has been made so many times that even its proponents no longer understand it.
Recent developments in the South China Sea indicate that at best American support for UNCLOS is irrelevant to managing, let alone resolving, disputes in the Western Pacific.
Commander of U.S. Pacific Command (PACOM) Admiral Robert F. Willard testified this week before the Senate Armed Services Committee that “…China does not make legal claims to this entire body of water…” (the several bodies of water that China calls its “near seas”). When it comes to at least one of these seas—the South China Sea—the statement is meaningless.
Admiral Willard notes—and he would know—that China does “seek to restrict or exclude foreign, in particular, U.S., military maritime and air activities” in the South China Sea. A number of incidents over the last couple years point vividly to this problem. And China often uses legal arguments to explain its behavior.
But China’s underlying sovereignty claims are not just “legal.” They are historical. In 2009, the Chinese circulated the famous nine-dash map that lays out its historical claim to virtually all of the South China Sea. That provoked a complaint from Indonesia. Indonesia is not generally considered one of the claimants in the South China Sea dispute. However, it objected because while it sees no threat in China’s legal claims, the historical claims represented by the nine-dash map include Indonesian waters.
Now the Philippines has formally registered an objection to the Chinese sovereignty grab, to which the Chinese have responded by citing both the legal and historical bases for their claims.
This brings us back to Admiral Willard’s statement. The legal basis of China’s claims to the South China Sea is meaningless as long as it maintains an alternative historical case. This also means that UNCLOS—which Admiral Willard gently urged the Senate to ratify—is irrelevant to settlement of the dispute. In fact, the treaty’s filing deadlines and apparent wiggle room on things like “Exclusive Economic Zones” (EEZ) and baseline determinations seem to have exacerbated the conflict.
The fact that UNCLOS is not ameliorating the disputes in China’s other “near seas” points to its lack of utility there, too. In his testimony, Admiral Willard bemoans China’s challenge to “accepted interpretations of international law.” The Chinese contention that UNCLOS restricts U.S. military activity in foreign EEZs is shared in some fashion by 26 other nations. Granted, this is a distinct minority of the 160 parties to the treaty, but it does indicate that the “accepted interpretations” of UNCLOS are not rejected only by the Chinese. And today, the Chinese are often better than the U.S. at persuading neighbors of the error of their ways.
It is the U.S. Navy, overseas bases and security allies—not the United Nations—that dictate the U.S. have “a seat at the table” in managing maritime disputes. So if the Administration wants to do something to shore up the U.S. position in the Western Pacific, President Obama would spend his political capital better by fully funding the Navy’s shipbuilding budget and laying off the defense cuts.
And allow the Law of the Sea to rest peacefully at the bottom of the Senate.
