News Article

The South China Sea Is the Reason the United States Must Ratify UNCLOS
China has rejected the rule of law. It's in our best interest to uphold it.
July 13, 2016


By: Ben Cardin

The July 12 ruling by a tribunal of the International Tribunal on the Law of the Sea (ITLOS) in the case brought by the Philippines firmly rejected China’s expansive claims in the South China Sea. The court declared that the nine-dash line, the foundation for China’s historical claims in the region, had no legal basis. The tribunal also determined that none of the land features in the Spratlys, a group of contested reefs and atolls, meet the global standard for island entitlements, and therefore neither individually nor collectively warrant 200 nautical mile exclusive economic zones (EEZ), as China asserted.

The decision is a hugely important moment for the Asia-Pacific order. Yet Beijing has rejected this opportunity to play a more constructive role in the region, repeatedly stating that it will not abide by the ruling.

If Beijing won’t be helpful, what can the United States do to strengthen global institutions in the region? Join the United Nations Convention on the Law of the Sea (UNCLOS), the international institution through which the ITLOS arbitration was conducted. Such an action would communicate that for the United States, resolution of maritime disputes in the South China Sea is not a question of being for or against any particular country or its claims, but rather for being on the side of international law, institutions and norms.

The United States played an instrumental role in forming UNCLOS in the 1970s, and in subsequent negotiations worked to modify the treaty language to assure that U.S. national interests were safeguarded. Yet although both Democrat and Republican presidents have advocated its passing, the Senate has yet to ratify it. This is regrettable.

But just like when we helped forge UNCLOS more than 40 years ago, we have much to gain from joining today. We shaped the treaty to be very favorable to the United States: we reserved the only permanent seat on the international council that will oversee deep seabed mining, including potentially rich sources of untapped energy resources, minerals, and precious metals. That permanent seat remains embarrassingly vacant, and decisions are being made about seabed mining in international waters without U.S. participation. Moreover, the estimated additional area the United States could claim sovereignty under the continental shelf expansion provisions of the treaty is an area across the Atlantic and Pacific seaboards estimated at roughly one and a half times the size of Texas.

Our failure to ratify the treaty also undermines our ability to fully work with our allies and partners in the South China Sea region. If we are not party to UNCLOS, it is difficult for the United States to rely on the treaty to determine the legal entitlements of mid-ocean features, which claims are lawful, and what exactly constitutes the high seas. It’s also harder for us to suggest it as the basis for resolving claims and arbitrating disputes — or to rely on EEZs drawn under UNCLOS’s auspices. Moreover, a broad set of stakeholders including the U.S. Chamber of Commerce, environmental organizations, the military, and industry specific trade groups representing commercial fishing, freight shipping and mineral extraction all support U.S. accession to the treaty. Perhaps most importantly, our military leaders have stated that U.S. participation will help them maintain navigational rights — and with less risk to the men and women they command.

It has been long-standing policy that the United States does not take a position on the ultimate disposition of the competing maritime and territorial claims made by China and other countries in the South China Sea. But we do have a position on how the claims are adjudicated, and on how questions related to the different features — reefs, rocks, shoals and islands — are classified under international law.

Given our profound national security interests in the free flow of commerce and freedom of navigation around the world, we have a deep national security interest in how the claims are dealt with, as well as the territorial and economic claims that result from how high tide and low tide features are defined. We also have a deep and abiding interest in the development of functional problem-solving architecture and rules-based norms in the Asia-Pacific region, and in its regional diplomacy.

Unfortunately, China has vociferously stated that it will disregard the tribunal ruling, repeating this posture after the announcement of the ruling. In so doing it has elevated this case to a test for the regional and international community: If China and other states in the region disregard the arbitral ruling — discarding UNCLOS in the process — it will be a grave blow to regional order and the international system.

Today is a day for nations to choose between continuing to build a world of rules, law, and order, or a return to a world of growing volatility and great power politics. I call on my Senate colleagues on both sides of the aisle to join me in stating our commitment to ratifying this critical treaty when the new Congress convenes in January 2017.

Congressional ratification of UNCLOS will help secure U.S. interests in the Asia-Pacific region, and will reaffirm the principles of freedom of navigation in international waters and airspace in accordance with international law. Few actions could be more important as we contemplate the choppy waters we must now navigate to secure and safeguard U.S. interests and values in the region, and as we support our partners and allies in building a stable, prosperous rules-based order in the Asia-Pacific.

Ben Cardin is a United States Senator from Maryland and the Ranking Member of the Senate Committee on Foreign Relations and its Subcommittee on East Asia and the Pacific.