South China Sea Scenario

This post is available to our subscribers. 

China’s aggression in the South China Sea is increasing and conflict risks a global economic disruption. LOST ratification is needed to demonstrate US leadership and avoid conflict escalation

Mark Nevitt, 6-1-18, Just Security, https://www.justsecurity.org/57279/south-china-seas-muddled-increasingly-militarized-future/   The South China Sea’s Muddled and Increasingly Militarized Future
The Chinese Air Force recently landed a number of bombers on a heavily disputed “island” in the South China Sea. The military landings follow the placement of three anti-ship cruise missiles on three islets in the Spratly Islands by China earlier this year. These moves represent yet more provocative steps in the militarization of disputed islands, rocks and low-tide elevations in the region – something that Chinese President Xi Jinping promised President Barack Obama he would not do in 2015. In response to these recent actions, the Pentagon announced that it is disinviting the Chinese military from participation in the biennial U.S. Pacific Fleet’s 20-nation “Rim of the Pacific” (RIMPAC) exercise. Defense Secretary Jim Mattis told reporters earlier this week that China has been disinvited from the exercise because its militarization of these islands is “out of step with international law.” And the new Indo-Pacific Commander, Adm. Philip Davidson, recently said, “China is now capable of controlling the South China Sea in scenarios short of war with the United States.” Historically, China has declared broad maritime claims in the region based on a so-called “Nine-Dash Line” that asserts some degree of sovereignty and control over much of the South China Sea. But China’s capacious claim has a weak basis in international law and the United Nations Convention on the Law of the Sea (UNCLOS). Indeed, China’s South China Sea legal claims suffered a noteworthy blow in 2016 when the International Tribunal of the Law of the Sea (ITLOS) ruled against the bulk of China’s claims in Philippines v. China. After appearing to honor the spirit and contours of the ruling for a while, China has since changed course, asserting that the tribunal lacks jurisdiction to settle such matters. In the absence of a clear mechanism to enforce the ITLOS-ruling and penalize Chinese aggression, China has rapidly built artificial islands and military infrastructure on numerous contested islands, rocks and so-called low-tide elevations in the region. Other nations – to include the Philippines, which has a longstanding mutual defense treaty with the U.S. – have also made claims in the South China Sea. But they all lack China’s capability (and chutzpah) to follow through. Today, international law and freedom of navigation norms are slowly giving way to the law of raw power and control. And China appears to be winning. China’s continual disregard of the ITLOS-ruling and international, more generally, could have dire long-term consequences for the rule of law in the region. Complicating matters, the Chinese buildup has been overshadowed by negotiations with North Korea and ongoing trade disagreements between China and the U.S. China is, by far, North Korea’s biggest trading partner and food source. China’s cooperation is crucial to any worldwide efforts to contain the North Korean nuclear threat. Further, the U.S. and China remain locked in increasingly high-stakes trade negotiations. The U.S. has repeatedly stated that it takes no position on competing sovereignty claims in the South China Sea and its underlying objective is a peaceful settlement of territorial disputes in the region. But the U.S.’s ability to influence outcomes is hampered by two realities: the U.S. is not itself a claimant in the region (a fact that China is quick to point out), and the U.S. is one of the few countries in the world that has not ratified the UNCLOS treaty – although it has consistently treated the navigational provisions as binding customary international law. Despite not being party to UNCLOS, the U.S. has played a critical and historic role in ensuring freedom of navigation throughout the South China Sea and the world. The U.S. Navy has served as the maritime watchdog of a rules-based order on the sea for much of the 20th century. Indeed, the Navy’s very mission is linked to the maintenance of freedom of the seas. Today, an estimated 3.4 trillion dollars worth of trade flows through the South China Sea alone. Stopping this flow or restricting trade in other ways would have negative consequences for the world economy and truly catastrophic consequences for nearby nations’ economies. in response to China’s excessive maritime claims, the U.S. military has refused to back down. U.S. forces have stepped up freedom of navigation operations (FONOPS) in the South China Sea. Just last weekend, two Navy warships conducted a freedom of navigation exercise in the vicinity of Woody Island in the Paracel Island chain. This is the same island on which Chinese bombers conducted military exercises earlier in the month. The U.S. has also conducted several FONOPS (to include four in five months) since President Donald Trump took office. This follows four other FONOPS in the South China Sea during the Obama administration. There remain open questions about the actual effectiveness of such operations and their long-term ability to deter Chinese build-up in the region. In the meantime, it seems clear that the Chinese build-up of the South China Sea (military and otherwise) will continue, as will freedom of navigation operations by the U.S. In light of these trend lines, where do we go from here? First, we should accept the reality that China and U.S. forces will operate in the region in greater numbers, increasing the risk of an operational mishap between the two militaries. We should build upon earlier efforts to facilitate military to military communication and alleviate any risk of a China-U.S. operational mishap – a black swan-type event that could shatter peace and stability in the region. Recall that in 2001 a U.S. Navy EP-3 surveillance plane collided with a Chinese fighter jet in the region – an incident that greatly increased tensions between the two nations. We should clarify that the existing U.S.-China Memorandum of Understanding regarding air maritime encounters applies to freedom of navigation operations in the region and provide a legal mechanism for non-compliance. Any and all steps to improve communication and ease tension between the two militaries should be pursued. While China is not participating in the upcoming RIMPAC exercise, we should remain steadfast in finding ways to “operationalize” the 2014 Code for Unplanned Encounters at Sea (CUES) in the South China Sea. CUES is designed to reduce the chance for an incident at sea between the 21 countries that have signed on to this agreement. Second, the U.S. should continue to request that other navies conduct similar FONOPs in the South China Sea, particularly neighboring non-claimant nations. All nations benefit from a rules-based maritime system, so why shouldn’t other nations chip in? And the failure to persistently object to China’s militarization of the region and disregard of the ITLOS-ruling only serves to embolden China and provide some semblance of legitimacy to their claims. Passivity comes with its own costs. Too often, the South China Sea narrative pits a rising China against the United States. That’s not particularly helpful. Other nations – particularly those that rely upon the South China Sea for the bulk of their trade – would stand to lose if China were allowed to disregard international law and continue its de facto dominion over the region. Australia and India are natural partners to assist with this effort. The British Navy lacks the power projection force that it once had, but it has endorsed the U.S. FONOP-approach in the South China Sea and will be conducting its own FONOP in the region later this year. Even better, a coalition-based freedom of navigation exercise of two or more countries would demonstrate a unified front against excessive Chinese maritime claims. Third, the increasingly tense South China Sea situation once again reinforces the need for the U.S. Senate to provide its advice and consent to UNCLOS, the so-called “Constitu
tion of the Seas.” The U.S. routinely stresses the importance of relevant UNCLOS provisions when making legal arguments for Chinese compliance with international law in the region. Indeed, Secretary Mattis did just that when criticizing Chinese militarization in the region. But the U.S. is not a party to UNCLOS, the governing international legal framework designed to settle maritime disputes. China, in turn, is quick to remind the U.S. of its non-party status. A diplomatic stalemate often ensues. This back and forth will likely unfold at the Shangri-La dialogues to be held this weekend. While there are no immediate plans for the Senate to take up UNCLOS ratification, it should. It would remove an enormous distraction in the “battle of talking points” and would only bolster U.S. credibility when debating the finer legal points of UNCLOS. We should remove that barrier. The U.S. remains the only coastal state in the world that is not party to UNCLOS (168 nations in total are parties) due to a small but vocal group of Republican senators who assert that ratifying UNCLOS would cede U.S. sovereignty to an unaccountable international organization. These three actions alone will not by themselves dramatically alter the security landscape in the South China Sea, but we need to begin somewhere to alter the current worrying trend lines. Ultimately, the South China Sea is in need of international leadership and broad and creative diplomatic solutions. Absent this, the law of raw power and control will define the South China Sea’s future. And that future increasingly favors China.

Such aggression risks war that escalate to nuclear conflict

Frank Rando 15: possesses over 30 years of real world experience as a public safety professional, clinician, educator ,emergency and crisis manager ,author and consultant in the areas of tactical ,disaster and operational medicine, weapons and tactics, law enforcement /criminal investigations ,counterterrorism, hazardous materials management and emergency response ,toxicology, environmental safety and health,and health care and public health emergency management, 09/29/2015, “Fire on the Water: The South China Sea and Nuclear Confrontation,”http://www.cbrneportal.com/fire-on-the-water-the-south-china-sea-and-nuclear-confrontation/
The dependence of China and other regional nations surrounding the South China Sea on the Strait of Malacca is analogous in geopolitical and economic terms, to the Strait of Hormuz in the Persian Gulf. Approximately one -third of all global trade funnels through the strait and also serves as a conduit for raw materials and energy needs for China and other adjacent nation-states. Such potential dominance in any region, leads to a high-stakes game of brinkmanship, and at least the possibility of a regional war which could conceivably escalate to engulf nation-states external to the regional sphere. Tensions and skirmishes have the propensity to evolve into armed conflict and full-scale war, and apprehensive leaders and military planners in such a contested region serve as the facilitators for disaster. China continues to assert sovereignty by constructing man made islands using sand dredged from the sea bottom and these artificial islands could be militarized. China has even affirmed its desire to have a military presence on these islands; however, the Chinese Foreign Minister Wang Yi, also professes the use of these land masses to facilitate commerce via shipping lanes and to protect Chinese fishing and other vessels from piracy. China will never cease its quest for supremacy and its perceived “ownership” of the South China Sea, as the legitimacy and structure of the Chinese government is based on nationalism and achievement of the “Chinese Dream”. The Chinese regime continues to vehemently assert their perceived “right” to the South China Sea, and it forges ahead with plans and operations that could lead to naval warfare and conflict escalation. The knowledge that China possesses formidable naval capacity and capabilities, including nuclear-capable ballistic missile submarines, is, indeed, disconcerting at the very least. As we examine and evaluate the “submarine factor”, it is evident that China’s submarines have no practical value in its disputes with Vietnam and the Philippines. Essentially, nuclear ballistic missile capable submarines serve as a deterrent against thermonuclear war. Without doubt, the primary reason that China possesses nuclear-capable submarines is to deter an American attack, although India’s nuclear weapons are also a consideration for Beijing. Nuclear capable submarines are capable of deep dive capabilities and shorter launch to target times. While China’s submarine capabilities may appear worrisome to some, sudden deployment from port in a geopolitical crisis would serve as a critical indicator to the US and Western allies, and its submarine fleet still remains somewhat noisy and detectable. China has already demonstrated its aggression at sea in several instances, such as the ramming and sinking of a Vietnamese fishing boat in disputed waters claimed by both countries in the region and an ominous presence and military mobilization exercises which have been monitored by military and intelligence assets. A report by the National Air and Space Intelligence Center, indicates that Chinese SSBNs are able to target portions of the U.S. from strategic operational positions near the Chinese coast. China’s Global Times published an unprecedented report that revealed a nuclear missile strike on the western U.S. with JL-2 missiles could generate up to 12 million American fatalities. The Obama administration and senior U.S. naval officials have not retorted to China’s claims of a potentially devastating nuclear threat, which included graphics showing radiological plumes and collateral damage induced by radiation. The possibilities of China’s anti-satellite strategies to disable communications and intelligence-gathering capabilities must also be taken seriously. Most assuredly, the South China Sea would serve as an obvious arena for the projection of Chinese power, including conventional and, potentially, nuclear scenarios. Rando2China’s South Sea naval facilities have seen significant upgrading and expansion, such as the facilities on Hainan, and the nuclear submarine base at Longpo serves as the first nuclear submarine base in the South China Sea. The base also includes a submarine tunnel that is part of an underwater complex of nuclear facilities on Hainan. Also, Chinese-Russian wargames are worrisome, which adds to the concerns of nuclear confrontation and consequences globally. The Chinese have asserted their right to defend its territories, which in their view, includes the South China Sea, and they have stated verbally, and by their aggressive actions, that they will continue to pursue their strategic goals despite the threat of confrontation and conflict. Many of the issues in contention in the South China Sea will remain unresolved for, probably, several years to come. We must remain balanced, and not overzealous in our approaches to assisting with conflict resolution in the area. We must apply reasonable diplomacy, without stirring up a hornet’s nest that would serve to be counterproductive and enhance animosities. However, the US, its allies, and other concerned nation-states must not refrain from being ever so vigilant and proactive in achieving peaceful resolution, while at the same time maintaining our national defense and security postures.

US accession to the Law of the Sea treaty will provide the US with the credibility it needs to deter China’s aggression in the South China Sea. 

Kyouk, 7-17, 18, Wall Street Journal, China Is Winning in the South China Sea, Ms. Kuok is an associate fellow at the International Institute for Strategic Studies-Asia and a senior research fellow at the Centre for Rising Powers, University of Cambridge, https://www.wsj.com/articles/china-is-winning-in-the-south-china-sea-1531868329
Two years after an international tribunal rejected expansive Chinese claims to the South China Sea, Beijing is consolidating control over the area and its resources. While the U.S. defends the right to freedom of navigation, it has failed to support the rights of neighboring countries under the tribunal’s ruling. As a result, Southeast Asian countries are bowing to Beijing’s demands. The tribunal’s main significance was to clarify resource rights. It ruled that China cannot claim historic rights to resources in waters within the 200-nautical-mile exclusive economic zone of other coastal states. It also clarified that none of the land features claimed by China in the Spratlys, in the southern part of the South China Sea, generate an exclusive economic zone. In late July 2017, Beijing threatened Vietnam with military action if it did not stop oil and gas exploration in Vietnam’s exclusive economic zone, according to a report by the BBC’s Bill Hayton. Hanoi stopped drilling. Earlier this year, Vietnam again attempted to drill, and Beijing issued similar warnings. A satellite photo of Mischief Reef, March 13. A satellite photo of Mischief Reef, March 13. PHOTO: HANDOUT/REUTERS Other countries, including the U.S., failed to express support for Vietnam or condemn China’s threats. Beijing has also pressured Brunei, Malaysia and the Philippines to agree to “joint development” in their exclusive economic zones—a term that suggests legitimate overlapping claims. Meanwhile China is accelerating its militarization of the South China Sea. In April, it deployed antiship cruise missiles, surface-to-air missiles and electronic jammers to artificial islands constructed on Fiery Cross Reef, Subi Reef and Mischief Reef. In May, it landed long-range bombers on Woody Island. Beijing says it can do as it wishes on its own territory. But under international law, Mischief Reef isn’t Chinese. The 2016 tribunal decision made clear that jurisdiction over a low-tide elevation lies with the country in whose territorial sea or exclusive economic zone it is located, and no other country can claim sovereignty. Because Mischief Reef is located in the Philippines zone, the Philippines has jurisdiction over it. Sovereignty over the rest of the features in the South China Sea continues to be fiercely contested. As I wrote in these pages last year, international law on the responsibility of an occupying state in a disputed area is far from clear, so Beijing’s actions are at best in a legal gray zone. While Beijing’s dramatic military buildup in the South China Sea has received much attention, its attempts at “lawfare” are largely overlooked. In May, the Chinese Society of International Law published a “critical study” on the South China Sea arbitration case. It rehashed old arguments but also developed a newer one, namely that China is entitled to claim maritime zones based on groups of features rather than from individual features. Even if China is not entitled to historic rights within the area it claims, this argument goes, it is entitled to resources in a wide expanse of sea on the basis of an exclusive economic zone generated from outlying archipelagoes. But the Convention on the Law of the Sea makes clear that only archipelagic states such as the Philippines and Indonesia may draw straight archipelagic baselines from which maritime zones may be claimed. The tribunal also explicitly found that there was “no evidence” that any deviations from this rule have amounted to the formation of a new rule of customary international law. China’s arguments are unlikely to sway lawyers, but that is not their intended audience. Rather Beijing is offering a legal fig leaf to political and business elites in Southeast Asia who are already predisposed to accept Beijing’s claims in the South China Sea. They fear China’s threat of coercive economic measures and eye promises of development through offerings such as the Belt and Road Initiative. Why did Washington go quiet on the 2016 tribunal decision? One reason is Philippine President Rodrigo Duterte’s turn toward China and offer to set aside the ruling. The U.S. is also worried about the decision’s implications for its own claims to exclusive economic zones from small, uninhabited land features in the Pacific. The Trump administration’s failure to press Beijing to abide by the tribunal’s ruling is a serious mistake. It undermines international law and upsets the balance of power in the region. Countries have taken note that the tide in the South China Sea is in China’s favor, and they are making their strategic calculations accordingly. This hurts U.S. interests in the region. The U.S. still has a chance to turn things around. It must coordinate a regional and international effort to insist that Beijing abides by international law. Coastal states must be supported in standing up to any incursions into their exclusive economic zones, including through coastal state-initiated legal action. There must also be greater pushback against Beijing’s claims that China is entitled to do as it likes on its own territory. In all of this, the U.S. will have greater credibility if it finally accedes to the Convention on the Law of the Sea. These efforts will be critical to defend a rules-based order against China’s bid for hegemony in the region.

China’s aggression in the South China Sea threatens to undermine the entire liberal international order. The Law of the Sea needs to be enforced to establish protection for the liberal international order and to defend its credibility everywhere

Bill Hayton, Associate Fellow, Asia Pacific Program, Chatham House, 7-11-18, https://www.chathamhouse.org/expert/comment/two-years-south-china-sea-ruling-remains-battleground-rules-based-order TwoYears On, South China Sea Ruling Remains a Battle Ground for the Rules Based Global Order
China’s attempt to use military might to overturn the legal rights given to the other countries threatens international peace and security. Bill Hayton, Associate Fellow, Asia Programme. takes part in a review in the South China Sea on 12 April. Photo: Getty Images. Share On 12 July 2016, an independent arbitral tribunal established under the UN Convention on the Law of the Sea (UNCLOS) published a clear and binding ruling on China’s claims vis-à-vis the Philippines in the South China Sea. China’s response at the time was to dismiss the ruling as ‘nothing more than a piece of waste paper’. Interestingly, in the two years since then it has, in some small ways, complied with it. However, it is also clear that China’s behaviour in the South China Sea has not fundamentally changed. It is, in effect, using military force to try to extort concessions from its neighbours. That poses a threat to international peace and security. The arbitral tribunal was asked by the Philippines to rule on 15 points, of which two were particularly significant. The first was that China’s claims to ‘historic rights’ within the entirety of the U-shaped, ‘9-dash line’ that it draws on maps of the South China Sea are mostly incompatible with the internationally-agreed UN Convention on the Law of the Sea (UNCLOS). UNCLOS is clear: entitlements in the sea have to be within areas measured from land. Secondly, the tribunal ruled that none of the Spratly Islands, nor an isolated reef known as Scarborough Shoal, are capable of supporting human habitation in their natural state. This means that none are entitled to an exclusive economic zone around them. The implication of these two rulings is that the vast majority of the resources in the southern part of the South China Sea belong to the coastal states: the Philippines, Malaysia, Brunei, Indonesia and Vietnam. Nonetheless China is continuing to pressure those countries to give away their rights to the oil, gas and fish. Under the name of ‘joint development’ China is continuing to demand a share of those countries’ resources even though the tribunal clearly ruled those demands illegitimate. In May 2017, President Rodrigo Duterte of the Philippines said publicly that his Chinese counterpart, Xi Jinping, had personally threatened him with war if the Philippines attempted to tap the large gas reserves in an area of the sea known as the Reed Bank. The Philippines’ existing gas fields are expected to begin running out within five years, whereupon the country will face an electricity shortage. China’s military threats will have major consequences for the government in Manila. The most likely result is that the Philippines will have to build more coal-fired power stations to fill the gap. Vietnam is in a similar position. In June 2017 and in March this year it was forced to suspend offshore oil development because of threats of military force from China. Vietnam’s oil output fell by 12% between 2014 and 2017 because Beijing’s intimidation is preventing it from developing new fields to replace those that are being depleted. This has reduced the government’s income with knock-on impacts on social and development spending. Despite all this pressure, it is significant that none of the southeast Asian claimants have succumbed to Chinese pressure for ‘joint development’. They are continuing to assert the rights accorded to them in UNCLOS. UNCLOS is a cornerstone of international peace and security. It was negotiated over nine years and agreed, in 1982, by almost every country in the United Nations. (The United States government signed it but the US Senate has not yet ratified it.) UNCLOS provides a neutral mechanism to allocate the world’s maritime resources but what we are seeing in the South China Sea is an effort by China to overturn it. In effect, China is deploying military might to overturn the legal rights given to the other countries. If this is allowed to succeed, UNCLOS will be weakened everywhere, not just in the South China Sea. If countries can treat international treaties as simply ‘pieces of waste paper’ then no agreement is safe: international order begins to break down. It is imperative, therefore, that all the other signatories of UNCLOS defend it from predatory behaviour. This means speaking up for the rights and obligations contained within its text – defending legitimate claims from those have been clearly ruled incompatible with international law. Small states need to be protected from the predatory behaviour of large states. The alternative is the slow collapse of international peace and security.

Collapse of the liberal order under leadership means wars of aggression and the spread of global authoritarianism

Hal Brands, 7-6 18, Bloomberg Opinion, https://www.bloomberg.com/view/articles/2018-07-06/u-s-retreat-would-make-china-s-values-the-new-normal, If America Retreats, China Will Reshape Global Norms
Everywhere one looks these days, it seems that global norms are under assault. From the South China Sea to Eastern Europe, longstanding international rules of the road — concepts such as non-aggression, freedom of navigation and self-determination — are being flagrantly flouted or subtly eroded. Ideas, such as democracy and respect for human rights, that seemed to have become incontestably dominant are facing renewed threats. Americans and people around the globe are getting a harsh reminder of a truth that is too easily forgotten — that the whole idea of global norms is an illusion. This is overstating matters, but only a little bit. We tend to think of norms as guidelines or standards of behavior that are accepted by all the members of a given community. We thus tend to think that ideas like respect for human rights and democracy have become so influential because their logic is so compelling. This notion is pleasing, as Robert Kagan has written, because it implies that the “right” ideas can triumph by dint of their own moral and intellectual superiority, and because it appeals to the Enlightenment principles at the heart of the American project. It is also basically wrong. What we think of as “global” norms have traditionally been little more than the values and preferences of the leading country or countries in the international system. Norms become dominant mostly because they are propagated by dominant powers. Think about a few historical examples. The international norm against slavery did not emerge over the course of the 19th century solely because slavery was morally wrong — although slavery was undoubtedly a moral obscenity. That norm emerged because the world’s most powerful country, Great Britain, undertook a concerted campaign over a period of decades to suppress the slave trade. That campaign included appeals to morality and humanity, of course, but it also included harder-edged measures such as coercive diplomacy and the use of violence. Even then, it took a brutal war of attrition waged against the mightiest slaveholding society in the world — the Confederate States of America — to make calls for abolition persuasive to those who had resisted them. The ascendance of the anti-slavery norm was a product of bare-knuckled use of hard power. Or consider the norms at the heart of the post-World War II international system. Democracy and human rights became widespread over the course of the late 20th and early 21st centuries for any number of reasons, having to do with socioeconomic changes, shifts in the doctrine and teachings of the Catholic Church, and other factors. Yet that ascendancy surely would not have been as powerful had not the next hegemon, the U.S., itself been a democracy that was frequently — albeit inconsistently and often selfishly — willing to exert its influence to restrain authoritarian aggressors and promote democratic change. The same goes for concepts such as non-aggression, freedom of navigation and geopolitical self-determination. There has never been anything like principled agreement among all the states in the international system that large countries should not engage in wars of exploitation and conquest against their weaker neighbors. North Korea’s invasion of South Korea in 1950, Saddam Hussein’s invasion of Kuwait in 1990, and Vladimir Putin’s annexation of Crimea in 2014 all demonstrate that humanity has not purged itself of such base temptations. The reason that wars of aggression and undisguised national aggrandizement have been comparatively rare over the past 70 years is that the American superpower, in cooperation with its allies, has believed that such bellicosity threatens to tear the fabric of international peace, and has been willing to shed blood to reverse it when it occurs. Likewise, freedom of navigation is not universally appealing to all countries — in the waters of the Western Pacific, the Chinese are working very hard to undermine that principle each and every day. It has retained its persuasive power because it has been enforced by the U.S. Navy. Finally, the idea that countries should have the right to choose their own geopolitical alignments and alliances free of coercion and intimidation is not some universal law. It is a reflection, as Charles Edel and I have written elsewhere, of America’s opposition to other countries constructing exclusive spheres of influence without the consent of those who would be incorporated into them. We like to think we live in a world that would be unrecognizable to those who lived in earlier, less enlightened times — a world in which the rules are the result of moral and intellectual progress of humanity. In reality, we live in a world that would be quite recognizable to those who lived in previous eras, one in which the rules reflect the power and commitment of the rulers. This is not the same thing as saying that the world is just as brutal, violent and chaotic as it was in earlier epochs. The last 70 years have indeed been an era in which peace has proliferated, more tolerant and inclusive modes of governance have flourished, and the strong have increasingly been restrained from simply doing what they will to the weak. The point, however, is that this has occurred largely because the U.S. and its allies have believed it is in their interests to fashion a particular set of rules that has supported this progress. And as any parent can tell you, the moment the rules cease to be enforced, they start to lose their power. This point is critical to understanding the trajectory of international affairs today. Leading scholars such as G. John Ikenberry have argued that the “liberal international order” — the set of arrangements constructed by the U.S. and its allies after World War II — can persist even after America declines or retrenches from its leading global role. Donald Trump appears to be testing this proposition today, by heaping scorn on so many practices and traditions of U.S. statecraft. But the idea that a post-American world will still be a world rooted in American norms represents a dubious gamble of epic proportions. It is far more likely that a different leading power, particularly a non-democratic power, would promote a different set of norms more to its liking. This is precisely what is starting to happen. Sensing that U.S. power and resolve are in decline, China and Russia are working assiduously to undermine the rules that have so long constrained their power, and to establish a new set of rules — the absolute sovereignty and legitimacy of authoritarian regimes, the right of great powers to dominate their peripheries — that would make for a very different world. And if these countries are already waging this campaign now, just imagine how much more assertive and successful they might be if the U.S. were to cede them the geopolitical field. This is why so many countries around the world are so anxiously watching the direction of U.S. policy under Trump — because they understand that the guiding principles of the international system will be up for grabs if he indulges his desire for retrenchment and abandons America’s leadership role. This may all seem very depressing, because it means that there will never come a moment at which the U.S. and its allies can pull back from the world without seeing the norms they have fought to establish crumble. But far better to learn this lesson from history than to re-learn it through our own mistakes.

UNCLOS will check the rise of China by constraining it to the liberal order

Nina Hachigian is a Senior Fellow at the Center for American Progress. June 12, 2012, China’s Rise is a Big Reason to Ratify the Law of the Sea Convention, https://www.americanprogress.org/issues/security/news/2012/06/12/11698/chinas-rise-is-a-big-reason-to-ratify-the-law-of-the-sea-convention/
China’s rise adds to a growing list of reasons to ratify the U.N. Convention on the Law of the Sea. Senate ratification of the treaty, which sets out a legal framework for conduct in the world’s oceans, will put the United States in an even stronger position to preserve our freedom of navigation in the South and East China Seas against any potential Chinese attempts to restrict our access, now and in the future. It will also allow us to be an even more forceful advocate for a rules-based process when it comes to territorial disputes in those waters and will lend Washington more credibility as it pushes China to follow international laws and norms. Let’s start with that final reason. Ratification puts the United States in a stronger position as it works to integrate China into the international system If the United States ratifies the Law of the Sea Convention, we will have more credibility when we argue that China needs to become a “responsible stakeholder”—in the words of former President George W. Bush’s Deputy Secretary of State Robert Zoellick—in the international system. America has been pressing Beijing to join international frameworks of rules and norms to create a level, predictable playing field for all; to bring China into the work of tackling shared threats across the world; and to ensure that China’s rise supports rather than disrupts the global system that America and our allies created after World War II. These rules and norms support international trade and economic integration across the world and helped enable China’s astronomical economic growth in recent decades. It’s true the People’s Republic of China has come a long way since its early days when it totally shunned the international community—and vice versa. Today China is deeply engaged in the international system on a number of levels. In international venues such as the United Nations, the International Monetary Fund, and the G-20, the Chinese show up, they are serious, and they often contribute constructively to policy questions. Yet China still falls far short of its international commitments when it comes to World Trade Organization rules, international intellectual property standards, International Monetary Fund guidelines on its currency, and the U.N. Declaration on Human Rights, to name a few important areas. The tables are turned on the Law of the Sea: Because of our failure to ratify the convention, the United States stands outside the international system that we champion. China, 161 other nations, and the European Union have all ratified the convention. The United States remains a “nonparty” to the convention, along with a handful of other nations, including some political pariahs such as Syria, North Korea, and Iran. It is difficult for America to be a credible champion of rules and norms in the international system when we have not signed on to the international law that governs what can happen in the oceans that cover nearly three-fourths of the planet. Ratification gives us a stronger position as we navigate issues in the South China Sea More specifically, ratifying the Law of the Sea Convention will lock in the terms that are extremely favorable to America in our disputes with China over freedom of navigation in the South China Sea. We currently have regular disagreements with the Chinese over where America’s military assets can travel in the oceans near China’s shores. The Law of the Sea would address these issues because it explicitly lays out rules and definitions in ways that the United States helped shape when the convention was written. Now we have to take a very brief detour into maritime legal terms—don’t stop reading, I promise this won’t hurt. The Law of the Sea Convention provides clear definitions—ones that the United States prefers—of a state’s “territorial waters” and also its jurisdiction in the all-important “exclusive economic zone.” Under the convention, a coastal state’s “territorial waters” start from its nautical baseline—basically where the ocean hits the shore at low tide—and extends 12 nautical miles out to sea. The Law of the Sea convention says these territorial waters are part of the sovereign territory of the coastal state. This means coastal states can make laws that apply to activities on these waters and own any resources in the waters and the seabed, including fish and other sea life, oil, natural gas, and metals and minerals. (There is another “contiguous” zone 24 miles out that is relevant to immigration and health laws but not to this article.) The next zone, extending out to 200 nautical miles from shore, is the nation’s exclusive economic zone. In this zone the coastal state has rights for the purposes of “exploring and exploiting, conserving and managing the natural resources, whether living or non-living.” Other countries have freedoms of “navigation and over-flight,” among others. Only the coastal state can therefore exploit its exclusive economic zone’s resources. But its domestic laws do not apply in the zone, and the coastal state cannot stop another country’s civilian or military ships from traveling through it. Maritime definitions in the U.N. Law of the Sea Convention The United States is not a party to the Law of the Sea Convention, but, ironically, we follow it in every respect because we believe it reflects “customary international law”—the law that has built up over the years based on what states actually do in the ocean. So when it comes to exclusive economic zones, the United States interprets the convention (and customary international law) to mean exactly what it says, which is that foreign ships have freedom of navigation in other countries’ exclusive economic zones. China has a different—and hard to justify—interpretation of the convention. It asserts that it has jurisdiction over all foreign military activity in its exclusive economic zone. Unfortunately, in debates with China and others, the United States is forced to advance our arguments about these issues from a position of weakness. Our encounters with the Chinese on this subject go something like this: Chinese official: Your Navy ships have no right to be in our exclusive economic zone without our permission. American official: Yes they do. The U.N. Law of the Sea Convention, which reflects customary international law, provides that other states have freedom of navigation in exclusive economic zones. Chinese official: You are not a party to convention, so it doesn’t matter what it says—you have no standing to make that argument. As you can see, our discussions get sidetracked from the real issues into our inexplicable nonparty status. If America ratified the convention, we’d be in a much stronger position to assert our rights and contest China’s anomalous position—that America needs China’s permission for our military assets to travel in, above, and below China’s (substantial) exclusive economic zone, up to 200 miles from its shores. The terms of the convention could change at any time Here is another critical point: The 163 parties to Law of the Sea Convention could choose to change the convention’s terms at any time. After all, the convention as it stands today is not the same as earlier versions. In fact, there is a marked trend now toward coastal states claiming more jurisdiction over their adjacent waters than the current convention recognizes. Chances are that any new version of the convention called for by Brazil, China, and other emerging coastal powers would push in favor of a more “Chinese” definition of exclusive economic zone transit rights. They might call for a larger zone with more limited rights for noncoastal states. That would be a disaster for the United States. America, with the most powerful Navy in the world and trade links that span the globe, needs full freedom of navigation in the world’s oc
eans. If we do not ratify the Law of the Sea, we will have a very hard time stopping that kind of change, and the longer we wait, the weaker our position will be. We should lock in the beneficial rules—the ones that we helped draft—now. As it is the United States follows customary maritime law. But customary law can also change over time in ways we cannot control. If the world’s other coastal states such as China start claiming that U.S. military assets can’t transit their exclusive economic zones without permission, that practice could enter customary maritime law. Then the United States would have a hard time arguing that it was going to ignore customary maritime law and instead follow the terms of a treaty that it had never ratified. Ratifying now puts us in a stronger position on other critical issues in the South China Sea Finally, the United States will have a stronger hand when it comes to the other issues at play in the South China Sea if it ratifies Law of the Sea. The United States has strong interests there in freedom of navigation and the maintenance of peace and stability. Brunei, Cambodia, China, Indonesia, Malaysia, the Philippines, Singapore, Taiwan, Thailand, and Vietnam all have overlapping and conflicting claims over islands and shoals in the South China Sea—and thus over the substantial maritime rights that go along with them. While those disputes have been in the news lately with the standoff between the Philippines and China over the Scarborough Shoal, there are many similar contests. Huge food and energy resources are at stake. Fish stocks in the region are horribly depleted and badly managed, but there is soaring demand for fish from growing populations in neighboring countries with rising wealth and more appetite for animal protein. The South China Sea has nearly one-tenth of the world’s fisheries used for human consumption, which is impressive considering its relatively small size. Hostile incidents are on the rise, as fishing boats enter disputed waters more often in search of their quarry, backed (tacitly or not) by their governments. The stakes go even higher in terms of energy extraction. New technologies are now making it possible to explore and extract oil and natural gas from the deep ocean. And according to a recent report, the South China Sea likely “holds about 15.6 billion barrels of petroleum, of which about 1.6 billion barrels are recoverable.” Some Chinese estimates are higher by a factor of 10. The U.S. Geological Survey estimates that the seabed also holds nearly 300 trillion cubic feet of natural gas. These numbers are speculative, but even if they are partially accurate, they make the South China Sea a significant potential source for energy resources. China claims as their “historical waters” more than three-fourths of the South China Sea, delineated by the so-called nine–dash line, pictured below. Competing country claims in the South China Sea These claims are generally considered outrageous by everyone except the Chinese, who have kept the justification for them (and the nature of the claims themselves) ambiguous. The Obama administration has done an admirable job of standing with other Southeast Asian countries trying to resist China’s pressure in these territorial disputes. The administration has called for a multilateral process based on the rule of law, rather than the bilateral approach Beijing prefers. But the U.S. position would be much stronger if the United States could simply say that, “The U.N. Law of the Sea Convention should govern this dispute.” As Secretary of State Hillary Clinton explained in her recent testimony before the Senate Foreign Relations Committee: I’m sure you have followed the claims countries are making in the South China Sea. Although we do not have territory there, we have vital interests, particularly freedom of navigation. And I can report from the diplomatic trenches that as a party to the convention, we would have greater credibility in invoking the convention’s rules and a greater ability to enforce them. The Chinese get a lot of mileage in conversations with Southeast Asian nations from the United States not being a party to the convention. (“How can the Americans tell us that Law of Sea Convention applies when they haven’t even ratified it?”) That’s why Secretary Clinton was joined by five Republican predecessors, who penned an op-ed in the Wall Street Journal this past month asking for Senate ratification. There is also the possibility that China will shift its strategy. Many think, for example, that Beijing will walk away from its nine-dash claim because the Law of the Sea does not recognize most maritime claims based on history. Others suggest that they will somehow argue that the convention doesn’t apply in the South China Sea. The government of China is divided on this issue, and Beijing could choose to employ any number of other legal strategies. But no matter what, the United States and its partners can carefully and rationally push back on Beijing’s overreaching to the extent it occurs, if they are united in asserting that the Law of the Sea governs conduct in the world’s oceans. Conclusion Some senators have voiced concerns about preserving American sovereignty when it comes to the convention. But as has been written before, rigid interpretations of sovereignty are a double-edged sword when it comes to China. These arguments let China assert that its currency, its climate policy, its development policies—all issues that affect us—are sovereign matters on which it should consider no other country’s concerns. Being in the strongest legal and diplomatic position we can with China is only one reason for America to sign on to Law of the Sea Convention. Also at stake is our ability to make claims on extended continental shelf areas in the Arctic and in other locales, and establish claims to deep-seabed regions that may contain deposits of rare-earth minerals. Beyond all the good policy reasons, though, when the U.S. Navy, U.S. Coast Guard, the Joint Chiefs of Staff, the U.S. Chamber of Commerce, Lockheed-Martin, the AFL-CIO, the World Wildlife Fund, the Natural Resources Defense Council, Oceana, AT&T, the American Petroleum Institute, ConocoPhillips, the United States Oil and Gas Association, the Boat Owners Association of the United States, former Presidents Bill Clinton and George W. Bush, Secretary Clinton, former Secretaries of State Condolezza Rice and Colin Powell, former Alaska Gov. Sarah Palin, and President Barack Obama all agree that America should do something, shouldn’t we just do it?
 

Ratification boosts the credibility of international legal restraints on China’s aggression and enforces environmental protection

 
Jonas Parello Plesner, 7-3, 18, Will the South China Sea Become a Chinese Lake? https://www.the-american-interest.com/2018/07/03/will-the-south-china-sea-become-a-chinese-lake/
In early June, I travelled by sea from Darwin, Australia to Ho Chi Minh City in Vietnam. I was an observer on two French warships passing through the disputed waters and Spratly Islands of the South China Sea. Beyond the stirring naval encounters with the Chinese navy around the Spratlys, twelve days at sea provided plenty of time to reflect on what lies ahead for the South China Sea. Let’s start with fundamentals. First, the name. Calling it the South China Sea in English, in a sense, reinforces the Chinese claim. With that name, many overlook that the southern part of the South China Sea lies more than 1,000 miles away from the Chinese coast line. In Chinese, it is named the South Sea, or Nanhai. By contrast, in Vietnam and the Philippines the sea is called, respectively, the East Sea and West Philippine Sea. Both make sense from their geographical perspectives. Prior to the modern nation-states of Asia, historians now concur that the South China Sea was a nautical fulcrum of exchange populated by semi-nomadic fishers, traders, and pirates. Now each neighboring state tries to efface that history and claim long-standing historical sovereignty. China takes first place for boldness with its nine-dash line, in the shape of a “cow tongue” that extends around 1,000 miles from China’s own coastline and edges much closer to the coastlines of Vietnam, the Philippines, Malaysia, and Brunei. Bill Hayton, a scholar at Chatham House, has demonstrated how the Chinese sense of entitlement underpins the potential conflict at sea and how the Chinese Communist Party integrates its claims into its victorious national narrative. The government in Beijing is so certain of its claim that it has even engraved the South China Sea on Chinese passports. Chinese tourists in Vietnam stir strong reactions by wearing t-shirts with the “cow tongue.” In reality, the nine-dash line dates from an imprecise map from the 1940s developed by the then-Chinese Nationalist government. When the nationalists departed for Taiwan, they continued to maintain their claims on the South China Sea—a position still held by the government of Taiwan to this day. The very names of the islands demonstrate how much history has been written at a late stage. Many of the now disputed reefs got English names from sailors passing through the area. Richard Spratly was a British whaler. Mischief Reef, a feature we passed on my trip, was probably named after a clipper of the same name, but the Chinese name is meijie, a transliteration from the English. The Chinese used English maps as the basis for their modern claims. It all puts a big question mark around the claim of Chinese ownership since ancient times. The archives in Taiwan, which hold invaluable documents on this history, should be explored by an international group of scholars to dispel some of the fog of nationalist rhetoric on all sides. Still, even equipped with accurate history, the South China Sea will remain a real conflict point. It is a test case for the integrity of international maritime law and diplomatic dispute settlement. It is also a test case for China’s “peaceful rise” and whether it will clash with its neighbors or the United States. I saw first-hand China’s impressive naval build-up with Chinese destroyers guarding Mischief, Subi, and Fiery Cross Reefs. A French naval captain told me that China has built new warships equivalent to the entire French navy in the past four years alone. It also matters to all of us, because a large part of global commerce and energy imports pass through the South China Sea and the critical choke point of the Malacca Strait. Conflict around the South China Sea could block that. The U.S. position is not to take side on the sovereignty questions and who owns the disputed reefs, but to uphold freedom of navigation for its military ships. France takes the same approach, which was evident on the mission I was on. Additionally, the United States is deeply concerned about China’s militarization of the islands, which Defense Secretary Mattis called out at the international Shangri-La conference at the beginning of June. As an initial counter-reaction, the United States disinvited China from the RIMPAC naval exercises. It didn’t seem to have any impact on China, and Xi Jinping explained sternly to Defense Secretary Mattis in Beijing on June 27 that China would not give up one inch of territory in the South China Sea. There have been an increasing number of freedom of navigations operations (FONOPs) in the Trump Administration but little high-level attention. Trump’s quizzical tweet on Saturday, June 2—“Very surprised that China would be doing this?” as a response to Mattis’s statements about China’s “coercion” in the South China Sea—seemed to throw additional uncertainty on policy. Even so, talks with officials in the National Security Council tell me to interpret the comment as Trump being negatively surprised about the Chinese taking such actions in the South China Sea, thus confirming current policy. All in all, it does not seem the President has given much deep thought to the South China Sea and freedom of navigation as yet. This also means that we should not rule out that the Trumpian transactional approach to international relations could include South China Sea. It could become a piece in a larger negotiation with China where trade and North Korea would loom higher on the U.S. priority list. Perhaps based on that uncertainty about longer-term U.S. commitments, countries such as the Philippines under Duterte are increasingly turning to cut an economic deal with China about access to resources in the South China Sea, although this will simultaneously weaken the Philippines’ sovereignty claims. The big policy question is if the United States wants to take steps to freeze China’s creeping militarization of the islands. It needs allies for this. The freedom of navigation coalition is clearly growing. I noticed it first-hand as we passed through the Spratly Islands, which the British, Australians, and Americans sailed through within short time intervals. The next step could be joint patrols with allies showing China that it is not only the United States upholding freedom of navigation. Sanctions on Chinese companies doing land reclamation could be part of the toolbox as well. As for international law, it would not harm U.S. credibility if Washington were to ratify the UN Convention on the Law of the Sea (UNCLOS), but this seems increasingly unlikely. Encouraging other claimants to follow in the footsteps of the Philippines and bring the issue to international arbitration could be helpful steps in obliging China and other claimants to clarify their specific claims and their basis in international law. France is seeking to compel other Europeans to take a clearer stand for freedom of navigation. Its military patrols are bringing EU declarations about upholding freedom of navigation and international law into practice. Other Europeans should join in making them joint patrols at future occasions. Yet the European Union should have a role beyond the hard security defense of freedom of navigation as well. As I passed through the South China Sea, I noted that pollution and overfishing are clearly much greater short-term challenges than the sovereignty issues or the naval great power game between the United States and China. Here the European Union could play a uniquely suited rule in promoting maritime multilateralism, something the organization has excelled at on managing fishing rights and environmental protection in European waters among member states. In the South China Sea, this would be extremely difficult and sensitive, given the low level of trust between the partners, but it could also be a building block for gradually restoring such trust. If no actions are taken soon, the South China Sea will truly become a Chinese lake, overfished and polluted.

UNCLOS will check the rise of China by constraining it to the liberal order

 
Nina Hachigian is a Senior Fellow at the Center for American Progress. June 12, 2012, China’s Rise is a Big Reason to Ratify the Law of the Sea Convention, https://www.americanprogress.org/issues/security/news/2012/06/12/11698/chinas-rise-is-a-big-reason-to-ratify-the-law-of-the-sea-convention/
China’s rise adds to a growing list of reasons to ratify the U.N. Convention on the Law of the Sea. Senate ratification of the treaty, which sets out a legal framework for conduct in the world’s oceans, will put the United States in an even stronger position to preserve our freedom of navigation in the South and East China Seas against any potential Chinese attempts to restrict our access, now and in the future. It will also allow us to be an even more forceful advocate for a rules-based process when it comes to territorial disputes in those waters and will lend Washington more credibility as it pushes China to follow international laws and norms. Let’s start with that final reason. Ratification puts the United States in a stronger position as it works to integrate China into the international system If the United States ratifies the Law of the Sea Convention, we will have more credibility when we argue that China needs to become a “responsible stakeholder”—in the words of former President George W. Bush’s Deputy Secretary of State Robert Zoellick—in the international system. America has been pressing Beijing to join international frameworks of rules and norms to create a level, predictable playing field for all; to bring China into the work of tackling shared threats across the world; and to ensure that China’s rise supports rather than disrupts the global system that America and our allies created after World War II. These rules and norms support international trade and economic integration across the world and helped enable China’s astronomical economic growth in recent decades. It’s true the People’s Republic of China has come a long way since its early days when it totally shunned the international community—and vice versa. Today China is deeply engaged in the international system on a number of levels. In international venues such as the United Nations, the International Monetary Fund, and the G-20, the Chinese show up, they are serious, and they often contribute constructively to policy questions. Yet China still falls far short of its international commitments when it comes to World Trade Organization rules, international intellectual property standards, International Monetary Fund guidelines on its currency, and the U.N. Declaration on Human Rights, to name a few important areas. The tables are turned on the Law of the Sea: Because of our failure to ratify the convention, the United States stands outside the international system that we champion. China, 161 other nations, and the European Union have all ratified the convention. The United States remains a “nonparty” to the convention, along with a handful of other nations, including some political pariahs such as Syria, North Korea, and Iran. It is difficult for America to be a credible champion of rules and norms in the international system when we have not signed on to the international law that governs what can happen in the oceans that cover nearly three-fourths of the planet. Ratification gives us a stronger position as we navigate issues in the South China Sea More specifically, ratifying the Law of the Sea Convention will lock in the terms that are extremely favorable to America in our disputes with China over freedom of navigation in the South China Sea. We currently have regular disagreements with the Chinese over where America’s military assets can travel in the oceans near China’s shores. The Law of the Sea would address these issues because it explicitly lays out rules and definitions in ways that the United States helped shape when the convention was written. Now we have to take a very brief detour into maritime legal terms—don’t stop reading, I promise this won’t hurt. The Law of the Sea Convention provides clear definitions—ones that the United States prefers—of a state’s “territorial waters” and also its jurisdiction in the all-important “exclusive economic zone.” Under the convention, a coastal state’s “territorial waters” start from its nautical baseline—basically where the ocean hits the shore at low tide—and extends 12 nautical miles out to sea. The Law of the Sea convention says these territorial waters are part of the sovereign territory of the coastal state. This means coastal states can make laws that apply to activities on these waters and own any resources in the waters and the seabed, including fish and other sea life, oil, natural gas, and metals and minerals. (There is another “contiguous” zone 24 miles out that is relevant to immigration and health laws but not to this article.) The next zone, extending out to 200 nautical miles from shore, is the nation’s exclusive economic zone. In this zone the coastal state has rights for the purposes of “exploring and exploiting, conserving and managing the natural resources, whether living or non-living.” Other countries have freedoms of “navigation and over-flight,” among others. Only the coastal state can therefore exploit its exclusive economic zone’s resources. But its domestic laws do not apply in the zone, and the coastal state cannot stop another country’s civilian or military ships from traveling through it. Maritime definitions in the U.N. Law of the Sea Convention The United States is not a party to the Law of the Sea Convention, but, ironically, we follow it in every respect because we believe it reflects “customary international law”—the law that has built up over the years based on what states actually do in the ocean. So when it comes to exclusive economic zones, the United States interprets the convention (and customary international law) to mean exactly what it says, which is that foreign ships have freedom of navigation in other countries’ exclusive economic zones. China has a different—and hard to justify—interpretation of the convention. It asserts that it has jurisdiction over all foreign military activity in its exclusive economic zone. Unfortunately, in debates with China and others, the United States is forced to advance our arguments about these issues from a position of weakness. Our encounters with the Chinese on this subject go something like this: Chinese official: Your Navy ships have no right to be in our exclusive economic zone without our permission. American official: Yes they do. The U.N. Law of the Sea Convention, which reflects customary international law, provides that other states have freedom of navigation in exclusive economic zones. Chinese official: You are not a party to convention, so it doesn’t matter what it says—you have no standing to make that argument. As you can see, our discussions get sidetracked from the real issues into our inexplicable nonparty status. If America ratified the convention, we’d be in a much stronger position to assert our rights and contest China’s anomalous position—that America needs China’s permission for our military assets to travel in, above, and below China’s (substantial) exclusive economic zone, up to 200 miles from its shores. The terms of the convention could change at any time Here is another critical point: The 163 parties to Law of the Sea Convention could choose to change the convention’s terms at any time. After all, the convention as it stands today is not the same as earlier versions. In fact, there is a marked trend now toward coastal states claiming more jurisdiction over their adjacent waters than the current convention recognizes. Chances are that any new version of the convention called for by Brazil, China, and other emerging coastal powers would push in favor of a more “Chinese” definition of exclusive economic zone transit rights. They might call for a larger zone with more limited rights for noncoastal states. That would be a disaster for the United States. America, with the most powerful Navy in the world and trade links that span the globe, needs full freedom of navigation in the world’s oc
eans. If we do not ratify the Law of the Sea, we will have a very hard time stopping that kind of change, and the longer we wait, the weaker our position will be. We should lock in the beneficial rules—the ones that we helped draft—now. As it is the United States follows customary maritime law. But customary law can also change over time in ways we cannot control. If the world’s other coastal states such as China start claiming that U.S. military assets can’t transit their exclusive economic zones without permission, that practice could enter customary maritime law. Then the United States would have a hard time arguing that it was going to ignore customary maritime law and instead follow the terms of a treaty that it had never ratified. Ratifying now puts us in a stronger position on other critical issues in the South China Sea Finally, the United States will have a stronger hand when it comes to the other issues at play in the South China Sea if it ratifies Law of the Sea. The United States has strong interests there in freedom of navigation and the maintenance of peace and stability. Brunei, Cambodia, China, Indonesia, Malaysia, the Philippines, Singapore, Taiwan, Thailand, and Vietnam all have overlapping and conflicting claims over islands and shoals in the South China Sea—and thus over the substantial maritime rights that go along with them. While those disputes have been in the news lately with the standoff between the Philippines and China over the Scarborough Shoal, there are many similar contests. Huge food and energy resources are at stake. Fish stocks in the region are horribly depleted and badly managed, but there is soaring demand for fish from growing populations in neighboring countries with rising wealth and more appetite for animal protein. The South China Sea has nearly one-tenth of the world’s fisheries used for human consumption, which is impressive considering its relatively small size. Hostile incidents are on the rise, as fishing boats enter disputed waters more often in search of their quarry, backed (tacitly or not) by their governments. The stakes go even higher in terms of energy extraction. New technologies are now making it possible to explore and extract oil and natural gas from the deep ocean. And according to a recent report, the South China Sea likely “holds about 15.6 billion barrels of petroleum, of which about 1.6 billion barrels are recoverable.” Some Chinese estimates are higher by a factor of 10. The U.S. Geological Survey estimates that the seabed also holds nearly 300 trillion cubic feet of natural gas. These numbers are speculative, but even if they are partially accurate, they make the South China Sea a significant potential source for energy resources. China claims as their “historical waters” more than three-fourths of the South China Sea, delineated by the so-called nine–dash line, pictured below. Competing country claims in the South China Sea These claims are generally considered outrageous by everyone except the Chinese, who have kept the justification for them (and the nature of the claims themselves) ambiguous. The Obama administration has done an admirable job of standing with other Southeast Asian countries trying to resist China’s pressure in these territorial disputes. The administration has called for a multilateral process based on the rule of law, rather than the bilateral approach Beijing prefers. But the U.S. position would be much stronger if the United States could simply say that, “The U.N. Law of the Sea Convention should govern this dispute.” As Secretary of State Hillary Clinton explained in her recent testimony before the Senate Foreign Relations Committee: I’m sure you have followed the claims countries are making in the South China Sea. Although we do not have territory there, we have vital interests, particularly freedom of navigation. And I can report from the diplomatic trenches that as a party to the convention, we would have greater credibility in invoking the convention’s rules and a greater ability to enforce them. The Chinese get a lot of mileage in conversations with Southeast Asian nations from the United States not being a party to the convention. (“How can the Americans tell us that Law of Sea Convention applies when they haven’t even ratified it?”) That’s why Secretary Clinton was joined by five Republican predecessors, who penned an op-ed in the Wall Street Journal this past month asking for Senate ratification. There is also the possibility that China will shift its strategy. Many think, for example, that Beijing will walk away from its nine-dash claim because the Law of the Sea does not recognize most maritime claims based on history. Others suggest that they will somehow argue that the convention doesn’t apply in the South China Sea. The government of China is divided on this issue, and Beijing could choose to employ any number of other legal strategies. But no matter what, the United States and its partners can carefully and rationally push back on Beijing’s overreaching to the extent it occurs, if they are united in asserting that the Law of the Sea governs conduct in the world’s oceans. Conclusion Some senators have voiced concerns about preserving American sovereignty when it comes to the convention. But as has been written before, rigid interpretations of sovereignty are a double-edged sword when it comes to China. These arguments let China assert that its currency, its climate policy, its development policies—all issues that affect us—are sovereign matters on which it should consider no other country’s concerns. Being in the strongest legal and diplomatic position we can with China is only one reason for America to sign on to Law of the Sea Convention. Also at stake is our ability to make claims on extended continental shelf areas in the Arctic and in other locales, and establish claims to deep-seabed regions that may contain deposits of rare-earth minerals. Beyond all the good policy reasons, though, when the U.S. Navy, U.S. Coast Guard, the Joint Chiefs of Staff, the U.S. Chamber of Commerce, Lockheed-Martin, the AFL-CIO, the World Wildlife Fund, the Natural Resources Defense Council, Oceana, AT&T, the American Petroleum Institute, ConocoPhillips, the United States Oil and Gas Association, the Boat Owners Association of the United States, former Presidents Bill Clinton and George W. Bush, Secretary Clinton, former Secretaries of State Condolezza Rice and Colin Powell, former Alaska Gov. Sarah Palin, and President Barack Obama all agree that America should do something, shouldn’t we just do it?