August 17, 2018

A recent article argues that China is ‘selectively choosing the parts of the UN Convention on the Law of the Sea (UNCLOS) that it likes and is ignoring or reinterpreting the parts that it does not like or finds inconvenient’. The argument is made on the basis that China sent a ‘spy ship’ to observe the Rim of the Pacific Exercise, the world’s largest joint naval exercise, held in June and July 2018.

But this account ignores that the United States — a non-ratifier of UNCLOS — is itself picking and choosing from the Convention.

As the author of the article acknowledges, China’s sending a ‘spy ship’ into the United States’ exclusive economic zone (EEZ) is legal. The author asserts that China objects when ‘US and other navies conduct similar activities in China’s (claimed) EEZ’. But some of what the United States does in China’s EEZ is — according to China — illegal. Although the specifics are classified, there are likely significant differences in scale, scope, technological capability, methods and objectives between what China and the United States do in intelligence, surveillance and reconnaissance (ISR) collection.

China indeed objects by word and deed to what it perceives as US abuse of the right of freedom of navigation. But this objection is not because China sees US ISR activities and joint exercises as ‘unlawful based on the legislative spirit of UNCLOS’. China’s position is rather that some US ISR probes are not passive intelligence collection activities — commonly undertaken and tolerated by many states, including China — but intrusive, provocative and controversial practices.

In Beijing’s view, some of these activities violate both China’s domestic laws and its rights under UNCLOSregarding marine scientific research and environmental protection in EEZs. An example of such a perceived violation is if and when a US aircraft, such as a P-8A Poseidon, dropped sonobuoys — expendable sonar systems — in China’s EEZ. China fears its EEZ environment may be degraded if US sonar systems or live fire exercises adversely affect marine life.

The simplistic assertion that the activities of China and the United States are ‘similar’ in regard to the Law of the Sea is self-deceiving. It could lead to the false hope that China will one day assent to activities it now considers illegal or threatening to its security because it is currently undertaking ‘similar’ activities. This is highly unlikely as long as the United States maintains a significant advantage over China in the scale, scope and capabilities of its ISR activities.

The article asserts that the ‘international community by and large agrees with Washington’. But this is not so in Asia. All littoral countries on the South China Sea except Brunei and Singapore have been targets of US freedom of navigation operations because of what the United States says are their ‘excessive claims’, including restrictions on foreign military vessels in their territorial waters.

It would seem safe to assume that these littoral countries do not support these specific US interpretations of UNCLOS, nor the US threat of force to demonstrate and enforce them.

The article also argues that China’s actions are responsible for making its neighbours ‘nervous’. But it is the increasing aggression and political pressure from both China and the United States, rather than China’s actions alone, that is contributing to the split in ASEAN on South China Sea issues and making its members wary of being caught in the middle.

According to the article, ‘the world needs a rising China to be compliant with global norms’. But China perceives the United States as wanting to strengthen the existing status quo, in which it is the dominant actor and patron. China believes it is being constrained by the existing US-led international order, which favours a system developed and sustained by the West and is associated in China with the ‘century of humiliation’ narrative.

It should not be a surprise that China wants respect for its enhanced status and its core interests, nor that it wants to bend the system to its benefit just as the United States did during its rise and still does.

The United States claims it wants to maintain the rules-based order in the South China Sea. But it alone among the major maritime powers refuses to ratify UNCLOS — a key part of that rules-based order. Because the Convention was a ‘package deal’, non-ratifiers like the United States cannot credibly or legitimately pick and choose which provisions they wish to abide by, deem them customary law, and unilaterally interpret and enforce them to their benefit.

This is especially so regarding the EEZ regime, introduced in UNCLOS as sui generis, which does include restrictions on ‘freedom of navigation’. They include the duty to pay ‘due regard’ to the rights of the coastal state, including its marine scientific research and environmental protection regimes, as well as its national security.

China and many other nations disagree with the United States on the meaning of key terms in UNCLOS relevant to freedom of navigation that are not defined in the Convention. Besides ‘due regard’, these include ‘other internationally lawful uses of the sea’, ‘abuse of rights’, ‘peaceful use/purpose’, ‘military surveys’ and ‘marine scientific research’.

Because the United States will not ratify UNCLOS and be subject to its dispute settlement mechanisms, it should offer to go to international arbitration outside UNCLOS to resolve issues regarding the interpretation of its provisions.

But the United States is unlikely to do so, because it will likely lose on the question of whether permission is required for some forms of marine research by its military vessels and aircraft in foreign EEZs and on environmental damage by its military activities there — and the United States knows it.

Mark J. Valencia is an adjunct senior scholar at the National Institute for South China Sea Studies, Haikou, China

Link: http://www.eastasiaforum.org/2018/08/17/us-picking-and-choosing-from-the-law-of-the-sea/#more-141598 

The NISCSS is authorized to re-publish this article on its website.