United States Ratification of the Law of the Sea Convention: Securing Our Navigational Future While Managing China's Blue Water Ambitions
Kelly, Michael J., Case Western Reserve Journal of International Law
"[W]e all carne from the sea.... [W]e have salt in our blood, in our sweat, in our tears. We are tied to the ocean. And when we go back to the sea, whether it is to sail or to watch it we are going back from whence we carne." (1)
--John F. Kennedy, September 13, 1962
CONTENTS I. INTRODUCTION II. BACKGROUND: CHINA'S RISE AS AN OCEANIC PRESENCE III. CHINA'S OCEANIC CLAIMS IV. CONCLUSION: IMPORTANCE OF U.S. RATIFICATION OF UNCLOS
The time has come for America to return to the sea. On her recent trip to China, ostensibly to develop better bilateral relations, U.S. Secretary of State Hillary Clinton had her diplomatic hat handed to her. Secretary Clinton endured repeated attacks in state-run Chinese media declaring the United States a "sneaky troublemaker" because it was pushing other states to challenge Chinese sea claims. (2) China's renewed assertion of claims to wide swaths of ocean in the teeth of counter-claims by rival powers like Japan and smaller states like Vietnam and the Philippines have pushed the United States into the awkward position of reassuring regional states that it backs stability and security in the area, while at the same time not provoking one of its largest trading partners. As a non-party to UNCLOS, the United States has failed in both tasks.
For the past two decades, both Democratic and Republican presidents have urged the US Senate to approve the United Nations Convention on the Law of the Sea (UNCLOS) (3) without success. Despite near universal agreement that the benefits of joining this multilateral treaty far exceed any drawbacks, US ratification has not been forthcoming. (4) Latent, largely unfounded sovereignty concerns appear to be holding back a sufficient minority of Senators from consenting. (5) However, China's recently assertive moves in oceanic affairs, coupled with its new and quickly developing naval capability, make US ratification all the more urgent.
II. BACKGROUND: CHINA'S RISE AS AN OCEANIC PRESENCE
History has shown that great powers operating within a multilateral legal framework agreement like UNCLOS or the World Trade Organization (WTO) balance one another to the benefit of all parties. By joining UNCLOS and operating within that system, the United States would be better able to more legitimately check China's behavior. Doing so from the position of an outsider, even though the United States recognizes the key provisions of UNCLOS as binding custom, weakens Washington's position. Moreover, the United States has little or no say in the dispute resolution mechanisms available to UNCLOS member states.
There is much hand-wringing among great powers over the rise of China. Much of this worry concerns not so much arresting China's rise, but rather managing it in a peaceful and beneficial way. But rising powers historically resist such foreign handling. After displacing Germany and Japan as the world's second largest economy last year, (6) a spot that alternated between both for decades, China is poised to claim the mantle of "great power." (7) With that title come natural ambitions. One of these, for China, is a dramatically increased oceanic presence.
To effectively deal with China's surprisingly forceful oceanic diplomacy, the United States must understand Beijing's perspective and appreciate the suspicion with which the Chinese government views the United States. As Professor Andrew Nathan and Dr. Andrew Scobell note:
The world as seen from Beijing is a terrain of hazards, beginning with the streets outside the policymaker's window, to land borders and sea-lanes thousands of miles away, to the mines and oil fields of distant continents. These threats can be described in four concentric rings. In the first ring, the entire territory that China administers or claims, Beijing believes that China's political stability and territorial integrity are threatened by foreign actors and forces. …