On January 30, the USS Curtis Wilbur, a guided-missile destroyer, sailed within 12 nautical miles of Triton Island in the Paracels, which is controlled by China but also claimed by Vietnam and Taiwan. China claims nearly the entire South China Sea and its islands, reefs and atolls on historic grounds. According to Chinese law, foreign warships entering what it calls its territorial waters must be approved by the Chinese government. In this case, the legal rationale was to assert the right of innocent passage through territorial waters without having to give advance notice.
This is the second time the US Navy has sent an American warship on a “Freedom of Navigation op” (FONOP) into the South China Sea near an island claimed by China as sovereign territory. In October 2015, the USS Lassen sailed within 12 nautical miles of Subi Reef. Subi Reef has been made into an artificial island by the Chinese, and they are now claiming that the artificial island is their sovereign territory. The purpose of October’s FONOP was to contest China’s claim that it was an “island,” rather than a “low-tide elevation (LTE).”
The Law of the Sea Treaty, formally known as the United Nations Convention on the Law of the Sea, was adopted in 1982. One hundred and sixty-two countries, including China and Russia and the European Union, are signatories to the treaty that governs the world’s oceans. The United States is not. The Convention has been approved by nearly every maritime power and all the permanent members of the UN Security Council, except the United States. Despite being a leading maritime power possessing the largest Exclusive Economic Zone (EEZ) and one of the longest continental shelves, the United States has not ratified UNCLOS. The United States has refused to ratify the treaty, partly because of deeply entrenched political disagreements over the International Seabed Authority, created under the UNCLOS, to regulate deep-sea mining in international waters.
Is ratification of UNCLOS vital to the future of the United States?
++The U.S. currently asserts its rights to freedom of navigation through customary international law, which is subject to change and diplomatic interpretations. Customary international law, though equally valid with treaty law, is unfortunately imprecise and malleable. Treaty law, on the other hand, provides a solid written and precise basis for assertion of rights. The United States' call on all parties concerned in the South China Sea to handle their territorial and maritime disputes in accordance with the LOS Convention has been weakened by its own failure to become party to the treaty.
++ With the ratification, the United States would have legal standing to bring any complaints to an international dispute resolution body and thus avoid possible confrontation with Chinese naval forces and paramilitary fishing trawlers around the Spratly Islands. Of course, the exclusion of the U.S. last year from the Permanent Court of Arbitration hearings concerning the Republic of the Philippines vs. the People’s Republic of China is a warning of problems to come. By not ratifying the UNCLOS Treaty, America is cutting itself out of a considerable amount of leverage for international support for its concerns, such as freedom of navigation operations.
++ Accession would ensure America’s ability to address the benefits of the opening of the Arctic – a region of increasingly important in terms of maritime security and economic interests. Joining the Convention will maximize international recognition and acceptance of America’s extended continental Artic shelf claims. At the moment US' absence as a signatory weakens the US position with other nations, allowing the introduction of expansive definitions of sovereignty on the high seas that undermine the ability to defend mineral rights along continental shelf, in the Area (deep seabed) and in the Arctic.
++ Since the United States hasn’t ratified UNCLOS, it hasn’t been able to formally claim any underwater boundaries: the United States needs to insist on implementation of an Exclusive Economic Zone (EEZ), a continental shelf and other maritime zones based on UNCLOS, rather than on customary international law.
++ The Convention is in the national interest of the United States because it recognizes and preserves for our ships and aircraft the freedom to conduct: innocent passage in territorial waters, transit passage through international straits (surface, air and subsurface), including the approaches to those straits, unrestricted military activities in high seas and visit of vessels suspected of engaging in piracy and stateless vessels.
In 2010 US Secretary of State Hillary Clinton has stated that the accession to the treaty "is critical to our credibility in working with nations in Southeast Asia over questions regarding activities in the South China Sea". [Remarks on Innovation and American Leadership to the Commonwealth Club (October 15, 2010, San Francisco)] The upcoming US-ASEAN summit on February 15-16 in Rancho Mirage, California provides an opportunity for the Obama administration to boldly demonstrate its rebalance towards Asia, and for the U.S. Senate to assert America’s national interests by ratifying the UN Convention on the Law of the Sea (UNCLOS).[number of readers: 1423]
A selection of relevant publications from the Peace Palace Library collection
- Cronin, P.M., "The United States, China, and Cooperation in the South China Sea", in Jing Huang and Andrew Billo (eds.), Territorial Disputes in the South China Sea: Navigating Rough Waters, 2015, pp. 149-163.
- Noyes, J.E., "The Law of the Sea Convention and the United States of America", Revue belge de droit international, 47 (2014), No. 1, pp. 15-44.
- Song, Y.-h., "Possibility of US Accession to the LOS Convention and its Potential Impact on State Practices and Maritime Claims in the South China Sea", in Y.-h. Song and K. Zou (eds.), Major Law and Policy Issues in the South China Sea: European and American Perspectives, 2014, pp. 75-118.