How Not to “Stabilize” the South China Sea

The Diplomat, often a good source on East Asia security-related issues, recently ran a piece suggesting that in light of China’s ratcheting up its outlandish territorial claims in the South China Sea by accelerating construction of artificial islands there, the United States Senate should address China’s actions by ratifying the United Nations Convention on the Law of the Sea, also known as the Law of the Sea Treaty or LOST, and thereby “help stabilize” that area. The author, Ankit Panda, essentially argues that although the U.S. Navy already considers LOST to reflect customary international law on the subject of artificial islands and navigation of international waters, not having ratified LOST puts the U.S. in a weaker position to defend those navigation principles. He goes on to recall a Senate Foreign Relations Committee hearing in 2012 at which the military leadership at that time registered unanimous support for ratification, and ends with the assertion that although there are “perceived costs” associated with ratification – including “limitations to naval operations, effective ‘taxation’ of seabed mining, and exposure to international arbitration” – they are “far outweighed by the benefits of ratification.”

Two quick thoughts:

• It’s unclear why the U.S. Navy needs LOST in order to defend international navigation interests in the South China Sea on the basis of customary international law. As Panda himself points out, the Navy is already doing this, even absent ratification of LOST – yet he goes on simply to assert that ratification would help “strengthen” the U.S. position, whatever that means. As the Heritage Foundation has observed frequently, the customary international law that the Navy is presently defending with respect to the South China Sea pre-dates the 1982 adoption of LOST by a long shot.

And in exchange for this non-strengthening of the U.S. position (particularly vis-à-vis China, which, as Heritage points out, routinely violates or ignores LOST anyway) we would incur the very real costs of, for example, 1) the U.S. Navy being subject to lawfare (by China and others) in the form of compulsory international dispute resolution bodies, the findings of which cannot be appealed, and; 2) the redistribution of U.S. oil-and-gas royalties to countries whose coffers we would not otherwise be inclined to fill, including countries or entities that sponsor terrorism. These are just two of many downsides – real, not perceived – that come with ratifying LOST.

• I was present at that 2012 Senate Foreign Relations Committee hearing to which Panda refers, at which active military leadership serving in the Obama administration expressed support for ratification. What Panda leaves out is Sen. Inhofe’s introduction into the record of a letter opposing ratification of LOST on national security grounds, “signed by several senior retired military leaders, including a former Chief of Naval Operations, a former Commander-in-Chief of the U.S. Pacific Fleet, and a former Commander-in-Chief of U.S. Navy Forces Europe, among others (after the hearing, two additional former Chiefs of Naval Operations signed on to the letter as well). The letter, which can be found here, stated in part:

“…We wish respectfully to challenge the perception that military personnel uniformly support this accord by expressing our strongly held belief that LOST’s ratification would prove inimical both to the national security interests and sovereignty of the United States….”

“…it is our considered professional military judgment that the United States should remain unencumbered by state-party status in the UN Convention on the Law of the Sea—free to observe those provisions we chose to and unencumbered by the others. We have demonstrated in the three decades since President Reagan refused to sign LOST that as a non-party great power we can exercise great and essential influence on matters involving the oceans without being relegated to one vote among 160-plus, obliged to abide by the will and whims of a generally hostile majority without the benefit of a veto to protect American national interests. There is no basis for contending that we will be better off if we have a so-called ‘seat at the table’ under such circumstances.”

The folks over at Real Clear Defense recently published a piece by James. R. Holmes, Professor of Strategy at the Naval War College, recommending five ways to counter China’s behavior in the South China Sea. I can’t speak to Prof. Holmes’s views on whether the Senate should ratify LOST, but one can’t help but notice that ratification of LOST is not present among his five recommendations. Prof. Holmes provides a much more sensible starting point for U.S. government action in the South China Sea than ratification of a deeply flawed treaty that will do far more harm than good.

Note: Updated 31 May 2015 to reflect proper chronology of when former Chiefs of Naval Operations signed the letter.