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US Must Adopt Law of the Sea

At a time when North Korea’s nuclear brinkmanship requires a common front, growing maritime disputes over small islands in the South China Sea and East China Sea are pitting major countries against one another. Key players, including China, Japan and South Korea, are at odds and increasingly relying on military bluster. Attorney Ziad Haider urges the United States to lead in easing the tensions by supporting ongoing diplomacy and communications; presenting varying models for joint exploration of natural resources in the region, including fish and oil; determining US priorities and developing “internal clarity,” before using policies like the sequester cuts, to assure both allies and China. Most importantly, the US Senate must ratify the UN Convention on the Law of the Sea, or UNCLOS. More than 160 other nations have signed on, and the US already adheres to the treaty’s terms. To have standing in maritime disputes and urge adherence to rules by others, Haider argues, the United States must also adopt the rules. – YaleGlobal

US Must Adopt Law of the Sea

To lead on Asian disputes, the US must combine diplomacy and embrace of UNCLOS
Ziad Haider
YaleGlobal, 13 March 2013
Fishing in troubled waters: Vietnamese fishermen around Chinese-controlled Paracel islands (top); Chinese naval fleet in the South China Sea

WASHINGTON: Since the Obama administration's announced pivot to Asia, challenges have piled up in the region. With the exception of North Korea’s nuclear brinkmanship, most of the challenges involve growing tension in the South China Sea and East China Sea. The US must devise a policy on these maritime disputes that preserves freedom of navigation and commerce, ensures regional stability, and upholds treaty commitments while avoiding military entanglements. A holistic strategy is required that calibrates the first term’s diplomatic and military efforts while heeding the legal dimensions of these disputes, including the key role of the UN Convention on the Law of the Sea, or UNCLOS.

Asia’s maritime disputes primarily consist of three: The South China Sea dispute involves Brunei, China, Malaysia, the Philippines, Taiwan and Vietnam. In 2012, China and the Philippines engaged in a naval standoff over the Scarborough Shoal while Vietnam accused China of cutting the seismic cables of one of its vessels exploring for oil and gas. In the East China Sea, China and Japan, and also Taiwan, are clashing over the Senkaku or Diaoyu Islands. The pendulum has swung in the past two months between talk of a political summit for reducing tensions to the Chinese locking weapons-guiding radar on Japanese ships. In the Sea of Japan, Japan and South Korea are contesting the Takeshima or Dokdo Islands.

These Asian island disputes have ebbed and flowed for decades….and nationalism plays a role.

These disputes have ebbed and flowed for decades, including China and Vietnam clashing over the Spratly Islands in 1988 resulting in the deaths of 70 Vietnamese sailors, but have steadily heated up since 2005. Some experts hone in on China’s assertiveness, citing its grand strategy of developing an island chain defense in the Pacific and extending its naval power. For all parties, upholding sovereignty while capturing valuable fish stock and energy resources is another factor; fish stocks closer to shore have dwindled, and deep-sea exploration technology has advanced.  Nationalism plays a role, given that some of the islands traded hands under the shadow of the region’s colonial and imperial Japanese past. Japan’s newly elected right-leaning leadership, for example, has hardened Chinese suspicions on the maritime issues.

Given this complex backdrop, the Obama administration can engage on these disputes in three ways.

First, it must sustain its intensive diplomacy and emphasis on showing up in the region to ensure, as former Assistant Secretary of State Kurt Campbell noted, that “cooler heads prevail.” This includes encouraging ASEAN and China to conclude a maritime Code of Conduct building on the 2002 Declaration on the Conduct of Parties. While efforts to advance the code ran aground during the November 2012 ASEAN-China Leaders Meeting, with the parties failing to even agree on a regional crisis hotline, picking up this thread must be a key second-term priority.

In addition, the administration should continue to proffer models for joint exploration of resources to encourage thinking beyond traditional notions of sovereignty. One such model is based on the 1920 Spitsbergen Treaty that granted Norway sovereignty over the disputed Spitsbergen archipelago in the Arctic while prohibiting military fortifications and permitting other signatories to undertake mining activities.

How should the US balance, reassuring its allies and protecting its interests without triggering rumblings of encirclement in Beijing?

Second, the administration must refine its military commitment to the region. Alongside enhancing capacity through weapons sales, exercises and troop rotations, it should foster greater communication among the regional maritime entities – vital given the ambiguous overlay of maritime law enforcement and naval forces in these disputes and the risk of inadvertent conflict. From bolstering arrangements such as the Western Pacific Naval Symposium that convenes the United States, China and most of the ASEAN states in discussing maritime security issues to creating a South China Sea Coast Guard Forum to enhance information sharing, scope exists for more robust dialogue mechanisms.

More fundamental are three issues relating to US capabilities and commitments, alongside those posed by sequestration defense cuts. First, how should the US balance, reassuring its allies and protecting its interests without triggering rumblings of encirclement in Beijing? As Secretary of State John Kerry noted in his confirmation hearing, given that “we have a lot more forces out there than any other nation in the world, including China…we need to be thoughtful on how we go forward.” Second, should conflict erupt in Asia’s waters, resulting in US intervention and execution of the new air-sea battle strategy to gain access to an operational area, what political strategy will follow suit to resolve the conflict? Third, how do US treaty obligations relate to these disputes? While Article 5 of the 1960 US-Japan Security Treaty is understood to extend to the Senkakus, the applicability of the 1951 US-Philippines Mutual Defense Treaty to a conflict in the South China Sea is less clear. Internal clarity on US obligations and red lines is thus critical.

Third, the administration must elevate its legal strategy for managing these disputes. Ratification of UNCLOS to which the US de facto adheres is essential, as former Secretary of State Hillary Clinton testified before the Senate last year, to ensure that US navigational rights and its ability to credibly challenge other countries’ behavior are on the strongest legal footing.

For the US to have the standing to call for a rules-based approach to these disputes, it must adopt UNCLOS.

Given that the contesting parties are actively resorting to the Convention to bolster their claims, ratification is critical for US credibility. Even China whose claims are largely based on historical record cites UNCLOS to which it is a party, for example, in adopting a “straight base line approach” to its claim in the East China Sea. In January, the Philippines filed a claim with an UNCLOS tribunal alleging that China’s nine-dash claim to the South China Sea is contrary to UNCLOS. Conceding that China has not accepted the tribunal’s jurisdiction on sovereignty claims and maritime boundaries, the Philippines has argued that the tribunal can assess the “interpretation and application” of China’s obligations under UNCLOS. While China has stated that it will not participate in the proceeding, the Philippines intends to pursue its claim.

Whether other parties bring such claims remains to be seen. Although arbitration offers a clean and contained alternative to fluctuating diplomacy and skirmishes, precluding US “interference” as China desires, China does not view arbitration as a bilateral solution and, moreover, assumes that time is on its side. As such, for the United States to have the standing to call for a much needed rules-based approach to these disputes, it must formally adopt the rules.

Asia’s maritime disputes are a disruptive force for US interests; however, they present an opportunity. A shortsighted view would conclude that the opportunity presented is a strategic opening for the United States and a regional tilt given recent Chinese heavy handedness. The reality is that states in the region have no interest in choosing sides. According to the National Intelligence Council’s Global Trends 2030 report, they will instead increasingly be pulled in both directions: economically toward China and security-wise toward the US. Moreover, given Sino-US economic interdependence, a China that perceives itself subject to containment and doubles down militarily is not in US interests.

The opportunity presented instead is for the United States to demonstrate leadership in the region that combines deft diplomacy, considered military engagement and an adherence to international law as an enabling rather than enfeebling force. Doing so will test its ability to remain an effective Pacific power while navigating the rise of another – all this to preserve an order with which US security and economic interests are inextricably linked in this century.

 

The writer is an attorney at White & Case LLP and previously served as a White House Fellow in the US Department of Justice and as a national security aide in the US Senate. 

Rights:Copyright © 2013 Yale Center for the Study of Globalization

Comments on this Article

16 March 2013
An excellent article and comments. However, if we want the U.S. to ratify we must simplify the issues for a Congress that simply cannot get its act together.
There is one winning argument; rarely mentioned in recent times. In full disclosure, I was one of the pioneer US government officials who got the Law of the Sea Conference started in 1967 (Then called the Seabed Committee) and ended as its chief negotiator in the Reagan Administration. It was also pioneered by five other colleagues and by the governments of the USSR and Great Britain. One reason for doing it was to expand Russia's fishing grounds and another to which I will devote this comment was to guarantee freedom of navigation through, under and in the airspace of 116 international straits which present choke points around the world to give the ability of the US Navy and Air Force to maneuver without delay; particularly in times of crisis.
The US and the USSR were both worried that expanding 12 mile territorial seas would jeopardize the navigation of their ballistic missile submarine fleets and other military equipment. In the meantime coastal resource claims were proliferating to 200 miles. U.S. coastal fisherman would have been delighted. The Japanese and Russians not so much.
Thus the original purpose of the treaty was to ensure that in the 116 international straits which would be overlapped by territorial seas of twelve miles the treaty would retain through those straits a "high seas corridor". Eventually, after many concessions on deep sea resources, archipelago claims, land-locked states claims, mineral producing countries' claim's and environmental claims it was understood that freedom of navigation would be preserved in straits which became overlapped by twelve mile claims.
The U.S. was in a good bargaining position because it only claims a three mile territorial sea and made it crystal clear that absent an adequate treaty on international straits it would only observe and respect the three mile limit.
After a few years of negotiating the U.S. shocked the world by declaring it's own twelve mile territorial sea without yet having a treaty in hand that protected freedom of navigation in overlapped straits like Hormuz or Gibraltar. In doing so the U.S. gave away its only bargaining chip and can no longer lawfully claim that there is high seas running through international straits overlapped by territorial sea claims of twelve miles.
That is the critical reason for the U.S. to ratify to the LOS Treaty. It always was and it still is. National security depends on freedom of navigation for ships, submarines and aircraft through those 116 international straits without having an argument and diplomatic contretemps with coastal states Spain, Indonesia, Malaysia and even Iran if it ratifies the treaty one day. Many others can be added to the list.
Lets keep our eye on the ball. Nothing has changed since 1967 when we conceived this new Law of the Sea Conference of any overriding national security importance. We must ratify the Convention and the Conservatives in Congress would be supporting it if only they understood the stakes.We have lost priceless legal rights to navigate freely in international straits and can only gain them back by ratification of the treaty. Liberal and Conservatives should have identical views on this subject. Conservative objections to the International Seabed Authority are mooted by the support of the mining industry which supports ratification because they cannot obtain secure tenure on a plot of land at the bottom of the oceans unless the world agrees to it. No bank will lend a half trillion dollars to develop a mine site for a non-party to this treaty. Conservatives: Please wake up.
-Leigh , Ratiner
16 March 2013
China has a diplomatic problem that seems to be getting worse over time. Small neighbors are not to be perceived as weak when the United States continues to provide enhanced security throughout the region. Some of the most advanced US defense systems are now deployed in Australia, Japan, South Korea, and Taiwan. Sequester or no sequester, China's aggressive moves are drawing attention throughout the world that could prove damaging to the global trade that ensures social stability in China. When China turns inward, history has shown she does not prosper.
-Ken Haumschilt , Escondido, CA
16 March 2013
As i see it, what the US is doing with its anti-China military alliances is simply to put obstacles in front of China, in the event of an invasion by China from the Pacific Ocean. Its allies including Japan, Australia, Philippine, South Korea and others will be in the front of the battlefield to be hit and destroyed first. That would slow down and deplete the invading forces before the war reaches its shore. US must feel safe and secure behind the iron-clad security.
Now, the most reliable source of future events is found in the Bible. What puzzles many bible scholars till today, is that US is never mentioned in bible prophecy as having a part in battles in the Tribulation, a period after WW3. In contrast, 'Kings of the East' with 200 million troops going into battle (which many bible scholars agreed that China is a member of it), Russia, Israel, Iran, Turkey and many other nations are mentioned or referenced, as having a part in battles during the Tribulation. One can only conclude that US is either destroyed or its military apparatus is crippled in WW3, to render it disabled to participate in any war in the Tribulation.
-James Ong , Singapore
15 March 2013
@James Ong from Singapore: Every time I hear somebody speak like this, I am sad that they think like this, and glad that they are not in control.
-Leon Cross , United States
15 March 2013
US knows full well that Diaoyu/Senkaku Islands belong to China, but as China was won over by the Communists in 1949, it did the unthinkable, interfering in the affairs of China. It transferred administrative control of the islands to Japan, via the San Francisco Treaty in the 1970's, intentionally infringing upon the territorial sovereignty of China and so, created a flashpoint in East China Sea.
Diaoyu Islands then becomes a powder keg which can blow up into a war between China and Japan and with US' interference, even lead to WW3.
The many statements coming out of US and Japan, just goes to show that US and Japan are not bothered about Potsdam Proclaimation and Cairo Declaration, as a post-war international order, to effect the return of Diaoyu/Senkaku Islands to China. US and Japan are only concerned with containing China within the first island chain, as long as they have control of them. This is in effect, a subtle declaration of war on China.
And the warnings by US to China to stay out of Diaoyu Islands is a challenge to China's dignity and territorial sovereignty, and in fact, both US and Japan had thrown a gauntlet down, to see if China is daring enough to take up the fight over the islands.
Though the world had gone through two world wars, US and Japan are still eager to provoke China to a war. Abe has in mind to bring to fruition, a "democratic diamond security," which is basically an anti-China military alliance. His warmongering attitude is further strengthened with his attempts to influence and lure ASEAN nations to his side in the Diaoyu/Senkaku Islands' dispute with China.
China has made representations in the UN over Diaoyu/Senkaku Islands, circulated a White Paper, and provided evidence that Diaoyu/Senkaku Islands are on its continental shelf. The representations and evidences have proven beyond doubt that China is the owner of Diaoyu/Senkaku Islands.
-James Ong , Singapore
14 March 2013
@ James Ong from Singapore:
War is a poor chisel to carve out tomorrow.
Martin Luther King Jr.
Only a blind fool believes war is the first and only option.
-Leon Cross , United States
13 March 2013
As i see it, China has to prepare for wars as the lines are already drawn, even as early as the 1970's.
The control over Diaoyu/Senkaku Islands by US, followed by Japan is a demonstration of US and Japan's strength over China to contain China's rise as a maritime power. And the 2013 Defense Authorization Act is a subtle declaration of war by US and Japan on China.
Lastly but not least, US' pivot to Asia is aimed squarely at China. In remarks to fellow NATO members in Washington in July 2012, Phillip Hammond, the UK Secretary of State for Defense declared explicitly that the new US defense shift to the Asia-Pacific region was aimed squarely at China. And US Air-Sea Battle’s goal is to help US forces withstand an initial Chinese assault and counterattack to destroy sophisticated Chinese radar and missile systems built to keep US ships away from China’s coastline.
In conclusion, China has no choice but to drive out Japan and US from Diaoyu/Senkaku Islands, as the islands form the first island chain for defense and attack positions against aggressors.
-James Ong , Singapore
13 March 2013
The main problems are from China that copied cat Israel "the bible said these "lands" are "chosen kids"
China did the same: 200 AD the Chinese sailed through "South Sea" Later Westerner sailors said" South China Sea" which "belong to China"
Monkeys see monkeys do.
People in Vietnam die in 1974, 1988, 995 and 1999 from Chinese invaded Vietnam's territories, and lately Philippines had same problems from China.
-Hien , USA
13 March 2013
The international community must understand the root causes of the issues first....ignoring the root causes will NOT ONLY make any policies fail, BUT ALSO take more unnecessary risks.
Honorary Professor Yabuki Jin of the Yokohama University is a well-known Japanese scholar on China. Recently, regarding the Senkaku Islands crisis, Professor Yabuki Jin wrote a new book. The title of this book is "the Core Issues of Senkaku", subtitled "What will Happen to Japan-China Relations”. Experts think this book is more impartial, more thorough exposition of Japan and China, and the stance of the United States on Senkaku Islands / Diaoyu Islands dispute. Here are some key points written by others, maybe over-simplified, from the book:
1. Japan's current position on the Senkaku Islands / Diaoyu Islands issue in several respects is UNTENABLE. The most fundamental point is that JAPAN'S UNCONDITIONAL ACCEPTANCE OF THE POTSDAM PROCLAMATION - The notice asked Japan to return all stolen Chinese territories back to China.
2. Potsdam Proclamation covers the following scenarios which INVALIDATED the following acts:
a. the annexation of the islands of the Ryukyu Islands and the Senkaku/Diayu Islands in January, 1895 by the Meijin Government;
b. the ceding of Taiwan and the Penhu Islands in the Treaty of Shimonoseki signed by Qing Government and the Meijin Government several months later in 1895.
These islands in the past are clearly part of Taiwan, and that Taiwan continues to use and occupies the islands are all reasonable requests.
3. The main reason Japanese believes Senkaku Islands / Diaoyu Islands are Japanese territory is because in the 1971 Agreement with the United States, Okinawa was returned to Japan. However, this position is inconsistent with the facts that the U.S. only gave the ADMINISTRATIVE jurisdiction of the island, rather than SOVEREIGNTY.
4. Japan's policy has been based on the ERRONEOUS ASSERTION in the testimony before Congress by Foreign Minister Takeo Fukuda in December 15th, 1971. He said, based on the agreement with the U.S., Okinawa was returned and its sovereignty was restored to Japan. It is not clear, however, whether Fukuda clearly MISUNDERSTOOD this issue, or he DELIBERATELY DECEIVED the Japanese people.
5. Prior to Japan’s implementation of the "nationalization" of the Senkaku Islands / Diaoyu Islands, the position that China's handling of this territorial issue was based on the consensus reached between Kakuei Prime Minister and Premier Zhou Enlai in 1972 – to "SET ASIDE" and to POSTPONE TO RESOLVE the territory dispute issue.
6. Yabuki Jin invoked the point of view of his own research, and third-party authoritative figures, that in the official record of the meeting that reached the clear understanding and accepted by both Prime Minister Tanaka of Japan and Premier Zhou of China, the transcripts regarding the two sides agreed to "set aside" and to postpone to resolve [the territorial dispute] were DELETED, and that later on, the Japanese government has FRAUDULENTLY claimed that this issue was NOT discussed at the time.
7. Given the above scenarios, the "nationalization" decision made by Noda government is a serious provocation to fundamentally change the status quo. From China's point of view, such act equals to the aggression and violence to the annexation of Chinese territory. It’s inevitable that China had a strong reaction.
What worries Yabuki Jin the most is that Japan did NOT notice or PAY ATTENTION to many signals from China.
-The , New York