Outlaw of the Sea

Posted on August 8, 2012

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When U.S. Senators Kelly Ayotte (R-N.H.) and Rob Portman (R-Ohio), both vice presidential hopefuls, recently declared their opposition to the UN Convention on the Law of the Sea, they virtually guaranteed that it would be dead on arrival if it were sent to the Senate. A group of 34 senators, including Ayotte and Portman and led by Jim DeMint (R-S.C.), is now on the record promising to vote against UNCLOS, which is enough to make getting the two-thirds majority necessary for ratification impossible.

UNCLOS was first negotiated 30 years ago. But back then, U.S. President Ronald Reagan objected to it because, he argued, it would jeopardize U.S. national and business interests, most notably with respect to seabed mining. A major renegotiation in 1994 addressed his concerns, and the United States signed. Now, the U.S. Navy and business community are among UNCLOS’ strongest supporters. So, too, was the George W. Bush administration, which tried to get the treaty ratified in 2007 but failed due to Republican opposition in the Senate.

Today’s opponents, including Ayotte, DeMint, and Portman, focus on two issues. First, they argue, the treaty is an unacceptable encroachment on U.S. sovereignty; it empowers an international organization — the International Seabed Authority — to regulate commercial activity and distribute revenue from that activity. Yet sovereignty is not a problem: During the 1994 renegotiation, the United States ensured that it would have a veto over how the ISA distributes funds if it ever ratified the treaty. As written, UNCLOS would actually increase the United States’ economic and resource jurisdiction. In fact, Ayotte, DeMint, and Portman’s worst fears are more likely to come to pass if the United States does not ratify the treaty. If the country abdicates its leadership role in the ISA, others will be able to shape it to their own liking and to the United States’ disadvantage.

The opponents’ second claim is that the treaty would prevent the U.S. Navy from undertaking unilateral action, such as collecting intelligence in the Asia-Pacific region, because permission to do so is not explicitly granted in the text. According to Admiral Samuel Locklear, commander of U.S. Pacific Command, however, “The convention in no way restricts our ability or legal right to conduct military activities in the maritime domain.” On the contrary, as U.S. Defense Secretary Leon Panetta put it, U.S. accession to the convention “secures our freedom of navigation and overflight rights as bedrock treaty law.” Even so, critics point out, the ultimate indispensability of U.S. naval power means that the country can receive the benefits of the convention without being bound by it. Since the world seems to have functioned perfectly well in this halfway house for some time, it would make no sense to codify the convention now. It would be comforting if all that were true. It isn’t.

UNCLOS has become an important barometer of U.S. power in the Pacific Ocean. At stake is the country’s capacity to uphold, preserve, and strengthen a rules-based order in Asia as China rises. In July 2010, at the ASEAN Regional Forum (ARF) in Hanoi, U.S. Secretary of State Hillary Clinton stated that the United States believes that all maritime territorial disputes in the South China Sea must be resolved multilaterally and in accordance with international law. It is a policy that she repeated at the deadlocked 2012 ARF in Cambodia. For its part, China objected to the “multilateralization” of maritime disputes then and continues to do so now. Beijing believes that it is more likely to make gains if it strikes individual bargains with weaker powers, including Manila and Hanoi. The other capitals realize this, which is why they welcomed Clinton’s commitment to multilateralism.

A strong multilateral structure in Asia is a prerequisite to balancing Chinese assertiveness. The United States should not take sides in other countries’ disputes, but it can and must insist upon a strong regional framework to ensure that a rising China does not destabilize the status quo. On this issue, the 34 senators who oppose the treaty are taking Beijing’s side. They are speaking up for the bilateralism and unilateralism that will harm the U.S.-led regional order in the Asia-Pacific. No doubt, news of Ayotte and Portman’s recent declarations was greeted warmly in Beijing. U.S. allies and strategic partners in South East Asia, meanwhile, will be even more doubtful of Washington’s capacity to maintain its leadership role. It is strategic multilateralism in the Atlantic that helped the United States to win the twentieth century. Without concordant multilateralism in the Asia-Pacific, it will not fare so well in the twenty-first.

Protecting national sovereignty is a legitimate aim — and one that some liberal internationalists may have been too cavalier about in the past. But for the goal to have any meaning, it must be framed so that it can be met. This is certainly what Reagan had in mind when he articulated a specific set of problems with the original UNCLOS that could be (and eventually were) dealt with. This time around, however, those who object to the treaty have defined sovereignty in such ideological terms that they will never be satisfied. By their reckoning, the United States can never be party to an international organization, even if it has veto status in it.

An international organization might very marginally limit U.S. freedom of action, but this is negligible in comparison to the harm that instability and conflict in the South China Sea could inflict on U.S. interests. Previous presidents from both parties understood the trade-off: In challenging times, and to exercise global leadership, Washington protected its interests by making enlightened commitments overseas, whether in the form of alliances, institutions, or foreign assistance.

The 34 senators who object to UNCLOS are not unique in favoring sovereignty and freedom of action over working within a strategic environment. They are following in the footsteps of those senators after World War II who initially objected to the Marshall Plan, the Truman Doctrine, and new alliances because they imposed costs on the United States and violated its autonomy. U.S. President Harry Truman argued that these multilateral commitments were a part of an international order that would make the world safer for the United States. The positive case failed to convince the Senate. In response, Truman focused his energy on exploiting fear of the Soviet Union and managed to secure the necessary political support for his strategy. Fear won where hope could not.

Today, the positive case is again failing to convince the Senate. But unlike in the 1940s, fear will not work today. First, China is not nearly as threatening as the Soviet Union once was. Second, the United States and its friends in Asia need China to be a part of the solution. If it is not, Asia will be ripe for disruption and destabilization. That over one-third of the Senate fails to appreciate this is a cause for concern. And the blind spot is not confined to maritime security. For example, Washington should be pressing Beijing to participate in existing arms control agreements, such as the Intermediate-Range Treaty of Nuclear Forces, instead of objecting on principle to any treaty that constrains freedom of action. The Senate’s intransigence, if it continues, will make new treaties practically useless as a tool of U.S. national security policy. President Obama and his successors will need to find ways to build multilateral structures through less formal partnerships and coalitions of the willing, which do not require Senate ratification, as well as existing structures such as the ARF. Although these options are important, they also  have significant limitations and will not exert as much pressure on China to comply.

U.S. presidents do not create and shape multilateral structures because they believe in global governance as an abstract philosophy. They do so because they want to advance the strategic and national security interests of the United States, which, for more than 65 years, have been tied up in the preservation and strengthening of a rules-based international order. These structures are not always perfect. When they are flawed, the tough process of ratification makes sure that problems are addressed. Unfortunately, however, doctrinal statements against the very idea of participation in multilateral organizations and agreements are now routinely undermining U.S. leadership overseas. This may have been an indulgence the United States could afford in the “unipolar” 1990s, but faced with a power transition in Asia, it is a strategic blunder that only emboldens those who long for the end of the U.S.-led international order.

Thomas Wright

The South China Sea Disputes: How Countries Can Clarify Their Maritime Claims

One of the sources of tension in the South China Sea is that the maritime claims of the claimant States are ambiguous and sometimes inconsistent with UNCLOS. If the claimant States would bring their maritime claims into strict conformity with UNCLOS, it would clarify the areas of overlapping maritime claims. This would set the stage for negotiations between the concerned claimant States to attempt to reach provisional arrangements for joint development agreements in the overlapping claim areas.

When we observe the flurry of actions and reactions of States causing increased tension in the South China Sea, it often appears that there are no rules of international law governing the activities of claimant States, and that it is all a game of power politics. This is simply not the case.

The significance of UNCLOS
The 1982 United Nations Convention on the Law of the Sea (UNCLOS) is of fundamental importance to the South China Sea disputes for three reasons.

First, it establishes a detailed legal framework setting out the rights and obligations of States with respect to uses of the oceans. All of the States with maritime claims in the South China Sea (China, Brunei, Malaysia, Philippines and Vietnam) are parties to UNCLOS and are legally bound by its provisions.

Second, UNCLOS sets out the maritime zones which coastal States can claim from land territory over which they have sovereignty. For example, coastal States have a right to establish a 12 nautical mile (nm) territorial sea adjacent to their coast in which they have sovereignty, subject to the right of all States to innocent passage.

UNCLOS also provides that coastal States have the right to an exclusive economic zone (EEZ) extending out to 200 nm from their coasts in which they have sovereign rights for the purpose of exploring and exploiting the living and non-living resources of the waters and of the seabed and subsoil. Under the EEZ regime, coastal States have sovereign rights to exploit the fisheries resources in their EEZ, and they can prohibit fishing by other States, including States whose nationals have habitually fished in their EEZ.

Third, UNCLOS sets out the maritime zones that can be claimed by coastal States from offshore geographic features.

How States can clarify their maritime claims
One of the major sources of tension in the South China Sea is that many of the claimant States have made maritime claims that are ambiguous or which are not completely consistent with the provisions of UNCLOS. If claimant States took measures to bring their maritime claims into strict conformity with their rights and obligations under UNCLOS, it would be of great assistance in clarifying the maritime disputes in the South China Sea. There are three types of measures the claimant States should take.

First, the claimant States who are claiming a 200 nm EEZ from their mainland coast (or from their main archipelago in the case of the Philippines) should, if they have not already done so, give official notice of the outer limit of their EEZ by publishing charts or lists of geographic coordinates, as required by UNCLOS. In addition, if they have measured their 12 nm territorial sea and 200 nm EEZ from straight baselines along their coast, they should, if they have not already done so, give official notice of such baselines by publishing charts or lists of geographic coordinates, as required by UNCLOS.

Second, the claimant States should identify the names and locations of islands over which they claim sovereignty. This is important because States can claim sovereignty only over off-shore features which meet the definition of an island, and only islands are entitled to a territorial sea and other maritime zones. An island is defined as “a naturally formed area of land, surrounded by water, which is above water at high tide.” Most of the geographic features in the South China Sea are reefs, shoals, cays or low-tide elevations which are not above water at high tide. One academic study concluded that less than 25% of the approximately 170 geographic features in the Spratly Islands meet the definition of an island.

Third, if the claimant States believe that any of the islands they claim are entitled to an EEZ and continental shelf of their own, they should identify such islands and give notice of the EEZ claim from them by publishing official charts or lists of geographic coordinates of the limits of such claims, as required by UNCLOS. This is important because most of the islands in the South China Sea are tiny, uninhabitable rocks. Under UNCLOS, “rocks which cannot sustain human habitation or economic life of their own” are not entitled to an EEZ or continental shelf.

Joint development in area of overlapping claims
If the claimant States took the above measures it would bring their maritime claims into conformity with UNCLOS, and the areas of overlapping maritime claims could be identified. Once the areas of overlapping maritime claims have been identified, UNCLOS obligates the States concerned to enter into provisional arrangements of a practical nature, pending the final agreement on the delimitation of maritime boundaries. Such provisional arrangements can include agreements to jointly develop the fisheries or hydrocarbon resources.

Further, UNCLOS provides that during the transitional period, States must not take unilateral action in the overlapping maritime areas which would jeopardize or hamper the reaching of a final agreement on the delimitation of the maritime boundaries. Finally, such provisional arrangements are without prejudice to any claims to territorial sovereignty over islands and to the final delimitation of the maritime boundaries.

If the claimant States brought their maritime claims into conformity with UNCLOS as set out above, it would clarify the areas of overlapping maritime claims. It would also be consistent with the 20 July 2012 Statement of the ASEAN Foreign Ministers on ASEAN’s Six-Point Principles in which they reaffirmed the commitment of the ASEAN Member States to fully respect the universally recognized principles of International Law, including UNCLOS.

This would set the stage for negotiations between the claimant States to attempt to reach provisional arrangements, including joint development agreements. As recognized many years ago by the late Deng Xiaoping, the only viable way to deal with the intractable territorial sovereignty disputes in the South China Sea is to set aside the disputes and jointly develop the resources.

Robert Beckman

China and America’s Dueling South China Sea Statements

The ever-exciting South China Sea took on a new twist this weekend with the U.S. and China trading strongly worded statements.

The dispute was prompted by a U.S. statement  on Friday, which was credited to acting Deputy State Department Spokesman, Patrick Ventrell.

The statement began by reaffirming that the U.S. has a “national interest in the maintenance of peace and stability, respect for international law, freedom of navigation, and unimpeded lawful commerce in the South China Sea,” something Secretary of State Hillary Clinton declared at the ASEAN Regional Forum two years ago. It then expressed concern at what it claimed was “an uptick in confrontational rhetoric, disagreements over resource exploitation, coercive economic actions, and the incidents around the Scarborough Reef, including the use of barriers to deny access.” Controversially, the next sentence singled out China, “in particular,” and even more specifically Beijing’s recent establishment of the “Sansha City” administrative body and corresponding military garrison.

China responded with a harshly worded statement by a spokesperson in the Ministry of Foreign Affairs (MFA). The MFA statement said that Washington’s “so-called press statement” showed a “total disregard of facts, confused right and wrong,” and was not conducive to regional peace. It also reaffirmed that Beijing has “indisputable sovereignty over the South China Sea islands and adjacent waters” and argued that creating Sansha City was well within its sovereign rights.

The MFA statement did say China was willing to discuss a binding Code of Conduct for the South China Sea with ASEAN, but only when certain member-states stopped violating the Declaration on the Code of Conduct of Parties in the South China Sea (DOC). The statement went on to rhetorically ask why the U.S. turned a “blind eye” to other claimants’ actions in the disputed waters,  such as-without naming names- using naval boats to intimate Chinese fishermen and passing domestic legislation that claimed ownership over Chinese islands and reefs.

Not content to leave it at that, on Saturday Assistant Foreign Minister Zhang Kunsheng summoned U.S. Deputy Chief of Mission in the country, Robert Wang, to further chastise the statement.  This was followed by more criticism from Vice Foreign Minister Fu Ying, who was part of the Chinese delegation that attended the ASEAN summit last month, during an interview with Xinhua News on Sunday. During the interview Fu also stated that “The South China Sea is not an issue between ASEAN and China, but rather between China and relevant ASEAN countries.”

The U.S. statement signaled a departure from the United States’ recent policy of publically remaining rather aloof from the escalating tensions in the South China Sea. This stand-offish policy was motivated by the lack of consensus among ASEAN member states- a number of ASEAN members, for instance, initially criticized Philippines for provoking the Scarborough Shoal conflict- as Washington’s desire to not be seen as the one creating tensions in the region.

The Obama administration’s decision to reenter  the fray is perhaps driven by possible behind-the-scenes consultations with its ASEAN allies. Beijing’s recent maneuvers in the SCS appear to have created greater intra-ASEAN unity on China’s assertiveness in the disputed waters, with Indonesian FM Marty M. Natalegawa stating last week that they demonstrated the need for a legally binding COC. Not far from the Obama administration’s mind are the lessons it drew from its first year in office in 2009. During that time, the Obama administration went to great lengths to court China including making concessions on a number of key issues like human rights. When this “open hand” was met with an uptick in Chinese assertiveness on a range of issues, administration officials concluded that Chinese leaders were interpreting their engagement policy as a sign of U.S. weakness. They vowed not to repeat that mistake.

Nevertheless, one shouldn’t place too much importance on the U.S. statement. Washington’s decision to issue the message through a junior official suggests it hopes to avoid a fierce dispute with Beijing.

Zachary Keck

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Posted in: Economy, Politics