United States must adopt the international law of the sea
April 23, 2013 00:00 By Ziad Haider YaleGlobal Wash
Since the Obama administration's announced "pivot" to Asia, challenges have piled up in the region. With the exception of North Korea's nuclear brinksmanship, 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 (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, Japan, and Taiwan are clashing over the Senkaku or Diaoyu Islands. The pendulum has swung 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 disputes have ebbed and flowed for decades, but have steadily heated up since 2005. Some experts hone in on China’s assertiveness, citing its grand strategy of developing an island-chain defence in the Pacific and extending its naval power. For all parties, upholding sovereignty while capturing valuable fish stock and energy resources is another factor. 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 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.
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 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 US, China and most 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 defence 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 East Asian 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 Defence 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’ behaviour are on the strongest legal footing.
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 US 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 US 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 US 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.
Ziad Haider 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 United States Senate.