Fishing activities

How Ratifying UNCLOS Can Help the United States Counter China’s Aggressive Activities and Illegal Maritime Claims in the South China Sea

The US State Department recently concluded that the People’s Republic of China (PRC) maritime claims in the South China Sea violate international law under the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Indeed, the PRC has baselessly asserted its sovereignty over most of the sea and exploited these alleged rights in environmentally damaging island construction projects, all of which violate UNCLOS, as a court has found. international. The State Department’s analysis, however, suffers from a flagrant hypocrisy: the United States itself has not yet ratified the convention. Even though the United States participated in all UNCLOS negotiations from 1974 to 1982 and currently recognizes the treaty as customary international law, Republican circles have long blocked membership on the belief that it would compromise sovereign power. of the United States and would do little to counter PRC incursions into the South China Sea. Until the US joins the 167 other nations, plus the EU, that have already ratified UNCLOS, its condemnations of the PRC lack credibility and fail to deter Beijing’s transgressions. The recent legislative push by Democratic members of Congress to uphold UNCLOS therefore presents a crucial opportunity for the country to strengthen its resistance against the PRC by aligning itself with the international community on a shared legal framework for maritime conduct.

The PRC has consistently engaged in aggressive land reclamation projects in the South China Sea, with adverse environmental repercussions. Starting in 2015, the PRC began building artificial islands in the disputed Spratly Islands archipelago to serve as military outposts. The PRC has developed facilities on these islands ranging from airstrips and ports, which extend the range of its aircraft and ships, to radar facilities, which enhance its surveillance capabilities over the surrounding area. While the PRC’s militarization of the South China Sea obviously has significant geopolitical and security implications for adjacent nations, it has, on a more immediate level, harmed the nearby marine environment. The dredging process required to build the islands has destroyed many of the South China Sea’s coral reefs, which are home to the largest concentration of marine biodiversity on the planet. Dredging also creates plumes of corrosive sediment and sand, which mix with toxic contaminants from ships and block sunlight and oxygen from reaching underwater species. Scientists have quantified the extent of these plumes and the resulting decreases in uptake and chlorophyll, concluding that island building has significantly damaged the biological health of the South China Sea.

The PRC bases its activities in the South China Sea on historic rights to the area, but these claims violate international law under UNCLOS. Since 1947, the PRC has insisted that the vaguely defined sector bounded by a U-shaped nine-dash line along the coasts of Vietnam, Malaysia, Brunei, Indonesia, the Philippines and Taiwan falls under of his domain. Specifically, the PRC asserted sovereignty over features and waters within the line and historic rights to fishing, navigation and resource development. A five-judge panel of the Permanent Court of Arbitration, however, unanimously and unequivocally struck down the nine-dash line and the PRC’s historic rights claims in 2016, three years after the Philippines filed suit against the PRC to clarify their respective maritime rights. The tribunal determined that “to the extent that China had historical resource rights in the waters of the South China Sea, such rights were extinguished to the extent that they were inconsistent with the exclusive economic zones provided for in [UNCLOS].” In other words, the sovereign rights of the Philippines in the exclusive economic zone granted by UNCLOS superseded any precedent on which the PRC had relied.

In addition, the court commented on island-building operations in China, stating that the natural conditions of some of the sea features on which they were erected prevented them from being officially classified as islands with their own exclusive economic zones. . The PRC was censored for ‘caus[ing] severe damage to the coral reef environment and rape[ing] its obligation to preserve and protect fragile ecosystems and the habitat of depleted, threatened or endangered species” given its ratification of UNCLOS (among other apparent environmental commitments).

“The recent legislative push by Democratic members of Congress to uphold UNCLOS presents a critical opportunity for the United States to bolster its response against the PRC by aligning itself with the international community on a shared legal framework for maritime conduct.”

The PRC, which refused to participate in the tribunal’s proceedings from the start, unsurprisingly rejected the above findings in a white paper reiterating its claims over the South China Sea. Although this revised articulation does not allude to the nine-dotted line, the PRC asserted sovereignty over four main groups of islands and maritime features and declared exclusive economic zones around them. Drawing on familiar justifications rooted in historical rights, the PRC based its “territorial sovereignty and relevant rights and interests in the South China Sea” on the assertion that “China is the first to discover, named, explored and exploited [the maritime features] and the waters concerned, and the first to have exercised its sovereignty and jurisdiction over them continuously, peacefully and effectively”. Subsequent verbal notes from the PRC to the UN Secretary-General between 2019 and 2021 showed that the PRC continues to appeal to the “long course of historical practice”, “historical rights” and “abundant historical and legal evidence” to maintain its aggressive activities in the South China Sea. In some communications, the PRC even went so far as to assert that it was acting in accordance with UNCLOS and all relevant international law.

The United States under the Trump and Biden administrations has, per the court ruling, opposed the PRC’s maritime claims in the South China Sea on the grounds that they violate international law. Such denunciations, however, lack credibility given that the United States has still not ratified UNCLOS despite having participated in its formulation. Republicans like Senator Rob Portman of Ohio, who voted to prevent ratification in 2012, have for years feared that UNCLOS would hamper US interests abroad and expressed skepticism about the ability of international bodies to do apply its provisions. In the case of the PRC’s claims to the South China Sea, this mindset is counter-intuitive and defeatist. US military leaders support ratification, as evidenced by recent confirmation hearings. Commander of the United States Coast Guard, Admiral Karl Schultz gave his “full-throated” approval, while Vice Chairman of the Joint Chiefs of Staff, Admiral Christopher Grady identified that the United States “knew [its] leverage by not signing the same rulebook that we ask other countries to accept.

A new push by Democratic members of Congress to ratify UNCLOS presents a crucial opportunity for the United States to bolster its opposition to the PRC’s bogus maritime claims in the South China Sea. In February, the House passed a motion expressing that it was in the national interest of the United States to ratify UNCLOS in light of the PRC’s increasingly disruptive operations. As Rep. Ami Bera, co-sponsor of the amendment and chair of the House Subcommittee on Asia, Pacific, Central, and Nonproliferation, explained, “Ratification of UNCLOS strengthens [US] ability to support [its] allies and partners in promoting a free, open, and secure Indo-Pacific, and gives the United States more leadership and credibility as [it] continues to fly, sail and operate wherever international law permits. Ratification would require the support of President Biden, a vote of approval from the Senate Foreign Relations Committee and 67 votes from an equally divided Senate. While the latter seems like an impossible feat, Biden would do well to champion the importance of UNCLOS, as South China Sea issues go beyond mere territorial disputes. Rather, they relate to broader national priorities of promoting a rules-based maritime order, protecting marine environments, and enhancing international solidarity in times of conflict and upheaval.