The Wrong Answer to the South China Sea

With conflict zones heating up around the globe, and our military continually being tasked to do more with far fewer resources, the last thing the United States Navy needs is for its opponents to have more opportunities to box it in through “lawfare.” And yet that is apparently what some would have us do in response to recent events concerning the South China Sea.

In the not-too-distant future, the Navy could be especially busy in increasingly dangerous waters. Iran, ever emboldened by its nuclear deal with President Obama, will continue to flex muscle in the Persian Gulf, as we saw when the Iranian Navy took our sailors hostage several months ago. As Libya and Syria continue to deteriorate, our navy may find itself called on to beef up its presence, and perhaps undertake combat missions, in the Mediterranean Sea. In what is undoubtedly a manifestation of Putin’s thinly veiled agenda to replay, and win, the Cold War, the Russian military is engaging in dangerous harassment of our own lawfully present Air Force assets in the Baltic Sea. China, meanwhile, continues to assert its vast territorial claims in the South China Sea, over the objections of its neighbors and in contravention of customary international law.

As tensions continue to escalate in key maritime areas throughout the world, analysts have been raising concerns for some time that budgetary constraints imposed by Washington, D.C., via sequestration are taking their toll on the Navy’s mission-readiness and deterrence capabilities — the Navy fleet is less than half the size it was 30 years ago, and a recent mid-year review of operations-and-maintenance funding indicates an $848 million shortfall, meaning restricted flying hours and deferred ship maintenance, with implications for future deployments.

It’s not just the shrinking budget complicating the Navy’s ability to train and carry out missions. The Navy has also had to contend with environmental organizations filing lawsuits to curtail the use of sonar. Just this month, the very liberal Ninth U.S. Circuit Court of Appeals ruled in favor of the Natural Resources Defense Council, which argued that the 2012 National Marine Fisheries Service rules governing the Navy’s use of sonar during peacetime operations were insufficiently protective of marine mammals affected by such sonar use — even though under the 2012 NMFS rules, “the Navy was required to shut down or delay sonar use if a marine mammal was detected near the ship,” according to the Associated Press. “Loud sonar pulses also were banned near coastlines and in certain protected waters.”

These are consequential features of the Navy’s current operating environment. Yet it is in this environment that some are suggesting that, in response to a ruling recently handed down by an international arbitration court involving China and its neighbors in the South China Sea, the United States should now ratify the United Nations Convention on the Law of the Sea — also known as the Law of the Sea Treaty (LOST) — so as to be better positioned to encourage China’s compliance with the court’s ruling. But while China’s provocative behavior in the South China Sea does indeed need to be countered, ratification of LOST would be an ill-advised way to go about it.

The case, brought under LOST’s mandatory dispute-resolution mechanisms before the Permanent Court of Arbitration at The Hague, centered on the legality of China’s expansive maritime claims in the form of its “nine-dash line,” the outer boundary of Beijing’s territorial claim encircling vast amounts of the South China Sea and overlapping with the exclusive economic zones (EEZs) of several neighboring nations. One of those nations, the Philippines (a party to LOST), brought the claim before the arbitration court, asserting that China (also a party to LOST), by drawing its nine-dash line well into the treaty-permitted EEZ of the Philippines, was in violation of LOST’s provisions governing the scope of permissible claims of maritime territory. The arbitration court held earlier this month that China’s nine-dash line, and the sovereign rights claimed over the territory it covered, were indeed not recognized under LOST. China, which has boycotted these proceedings and vowed previously to ignore any tribunal decision in this matter, has indicated that it will not comply.

Some are responding to the tribunal’s decision, and China’s determination to ignore it, by calling on the United States to ratify LOST. The thinking appears to be that without ratifying the treaty, the United States lacks the leverage and credibility with which to encourage China and other countries to adhere to international law in these matters. Such concerns are not only misplaced; they disregard the additional constraints that ratification would impose on our already stressed Navy.

The treaty itself is not the sole or original source of the international law of the sea but rather represents a codification of customary international lawon this subject over several centuries — law by which the Navy conducts itself to this day on the world’s oceans, as it has done since long before 1982, the year LOST was adopted at the United Nations. The United States has both the credibility and the means to defend this long-standing navigational regime, in the South China Sea or anywhere else, without signing up for LOST.

Ratification, while adding nothing to the Navy’s current ability to enforce international legal order in the South China Sea, would however bring with it new impediments to the Navy’s mobility globally. Articles 286 and 287 of the treaty lay out that one party to the treaty — including one with anti-American political axes to grind — may bring another party before one of several compulsory dispute-resolution bodies, the rulings of which are binding and cannot be appealed. While Article 298 provides an exemption for “military activity,” the treaty doesn’t define that activity, leaving the door open for LOST’s tribunals to rule on questions involving their own jurisdiction, as allowed for in Article 288 — so the United States cannot guarantee for itself that it won’t ever be brought before one of these forums on a specious environmental claim or, for that matter, that decisions rendered there will always favor the United States. And because the United States actually adheres to its treaty obligations, we will honor whatever rulings come out of such cases, including those adverse to our interests. (Note that China, already a party to LOST, does not share that view.)

Supporting this possibility is the fact that LOST also contains broadly written environmental-protection provisions, which could be used against the Navy not only by countries alleging environmental damage to the oceans before one of LOST’s international tribunals but by activist organizations arguing before activist American courts. What else will a court like the Ninth Circuit decide is required of the Navy the next time an environmental group sues for injunctive relief, if by then there are far-reaching and binding treaty obligations added to the mix?

In the South China Sea, and elsewhere in today’s volatile world, the Navy has enough working against it already. The last thing it needs is to be subject to an unnecessary and counterproductive United Nations treaty.