Advancing the National Interests of the United States: Ratification of the Law of the Sea

The credibility of the United States in the Asia Pacific is at stake on a decision whether to ratify the United Nations Convention on the Law of the Sea (UNCLOS). While there are other compelling arguments for ratification, none is as urgent as the requirement for the United States to solidify its commitment to the rule of international law, including in the Asia Pacific. This is particularly true in regard to one of the world’s most important foreign policy and security challenges: resolving disputes in the South China Sea.

This week, the Obama administration went all in on UNCLOS and sent Secretary of State Hillary Clinton, Defense Secretary Leon Panetta, and the chair of the Joint Chiefs of Staff, General Martin Dempsey, to testify before the Senate Foreign Relations Committee in support of ratification. The ball is now in the Senate’s court.

A decision to anchor the United States in UNCLOS is one that cannot be delayed. The president has wisely refocused the country on Asia to advance U.S. interests, from economic recovery and growth to regional peace and security to developing new sources of innovation. Countries around the Asia Pacific are assessing whether the United States has the political will, the pocketbook, and the commitment to further institutionalize its presence in the region. UNCLOS ratification is necessary to answer those important questions in the affirmative.

The debate over ratifying of the treaty began in 1982 when President Ronald Reagan refused to send it to Congress even for a discussion. The argument grew more heated following the renegotiation of the treaty leading to its entering into force in 1994. Those renegotiations addressed most of Reagan’s concerns and drew the active support of President Bill Clinton, though not of his opponents in the Congress.

More recently, the treaty was vigorously advanced by President George W. Bush and brought before the Senate Foreign Relations Committee in 2007. That effort failed to reach the Senate floor and the bill was shelved again.
This month, a new effort is under way amid a substantially changed international context. Senator John Kerry, chair of the Foreign Relations Committee, has scheduled a series of hearings, led off by strong statements from both Hillary Clinton and Leon Panetta May 23. General Dempsey also testified, asking the Senate to act to support the national security interests of the United States. Among other reasons given, Dempsey noted that “joining the convention would provide us another way to stave off conflict with less risk of escalation.” That message of support for ratification is consistent with the views of every chairman of the Joint Chiefs since 1994.

What sets the upcoming hearings apart from those that preceded them is that the United States is entering an era when leadership and credulity are earned by actions and influence sustained through consistency. A rising China will continue to test the limits of its power in the Asia Pacific. History shows that nations, including our own, have consistently explored converting economic power to political might. We do not know what China wants or what it wants to be. So U.S. strategy involves convincing China and other nations in the Asia-Pacific region that China’s interests will be most effectively and sustainably advanced by engaging in regional frameworks in which it makes the rules along with others, by abiding by international laws, and by promoting and investing in public goods. This process will take time, but it can be successful only if other countries believe the United States is willing to commit itself to these standards and norms.

The other factor that is different this time as the Senate considers ratification is the overwhelming support of U.S. business. Manufacturers along with oil, telecommunications, and shipping companies, and every other sector of the economy with a stake in access to sea lines of communication and undersea resources support ratification of the convention. Both the American Petroleum Institute and the U.S. Chamber of Commerce have voiced their support. Senator Kerry is taking advantage of this support from U.S. businesses by including their representatives in upcoming hearings.

In a rare show of solidarity, American labor and the environmental community have joined hands in supporting accession. The AFL-CIO and the Seafarers International Union of North America both sent letters to the administration in the last year expressing support. A group of nine environmental conservation groups, including the Environmental Defense Fund, the Natural Resources Defense Council, the Ocean Conservancy, and the World Wildlife Fund, sent a letter to Secretary Clinton in October voicing support for ratification.

The Law of the Sea has been ratified by 162 countries, including every other member of the UN Security Council and every other industrialized nation on the planet. It undergirds the modern international order in the maritime domain, an order built by the United States and its allies. It is the only comprehensive treaty recognized worldwide that lays out the rules for vessels on the high seas. The U.S. Navy and U.S. Coast Guard, recognizing its value, operate under its guidelines even in the absence of ratification. So why has it repeatedly failed to receive Senate approval? Opponents have presented four general arguments:
 

1. The Law of the Seas restrictions would interfere with U.S. military interests.
2. The International Seabed Authority (ISA), which determines rights to seabed mining, would block U.S. economic interests.
3. The Law of the Sea’s taxation scheme for exploitation of resources within a nation’s exclusive economic zone would redistribute revenues unfairly.
4. The treaty would limit U.S. sovereignty.

Fortunately for the law’s proponents, each of these ideological battles has been fought and won, especially following the treaty’s renegotiation. The first objection has largely been dropped in the face of more than two decades of overwhelming support from every branch of the U.S. military. The second is clearly not a concern to the U.S. industries actively pushing U.S. ratification. The ISA’s 39 staff and narrow jurisdiction have little chance of bullying the United States or anyone else. U.S. mining interests meanwhile are sitting on the sidelines while the ocean’s resources are claimed by others, and U.S. telecom companies lack the protections and dispute resolution mechanisms for undersea cables that all their international competitors enjoy.

Regarding the third concern, the taxation on resource extraction in exclusive economic zones amounts to just over 2 percent on average, a price that mining and hydrocarbon companies have signaled they are willing to pay as the world’s energy markets hunger for new resources and prices of commodities climb. As for revenue redistribution, opponents too often overlook the fact that following renegotiation of the Law of the Sea, the United States is guaranteed the only permanent veto on how funds are distributed. It is also exempt from any future amendments to the treaty without Senate approval. In other words, the United States would enjoy a position of unequaled privilege, not unfair treatment, within UNCLOS.

The final, and currently most prominent, argument against ratification surrounds sovereignty. Opponents say that, by limiting itself to a 200 nautical mile exclusive economic zone and whatever extended continental shelf it can claim, the United States is restricting its jurisdictional sovereignty. What this argument misses, however, is that the United States’ continental shelf is the largest of any—up to 600 miles offshore in the Arctic alone. John Norton Moore of the University of Virginia School of Law has argued that ratification would “massively increase [U.S.] sovereign jurisdiction” by more than the size of the Louisiana Purchase and Alaska combined.

The arguments against ratification have been steadily weakened in the last three decades and were overwhelmingly addressed in 1994. The most important reason, however, for U.S. accession has remained unchanged for 30 years: a rules-based international order is in the United States’ interests. The current global order and the U.S. preeminence within it are built upon legal norms and rules. Those rules do not unfairly constrain the United States. They constrain those that would overturn the system, and they prevent a return to an earlier era of great-power competition and might-makes-right diplomacy. General Dempsey said May 9 at a forum on the Law of the Sea, “Force of arms should not be our only national security instrument. [A] stable legal framework has never been more important to the United States.”

Much attention surrounding the Law of the Sea debate has focused on the Arctic. But the waters that best illustrate the need for an agreed-upon system of rules for the world’s oceans and a U.S. seat at the table are in the South China Sea, where a rising great power, China, decided to assert its maritime claims over smaller neighbors. It did so most aggressively when it submitted the infamous “9-dash line” claim to the United Nations in 2009. That claim has no basis in international law—a fact acknowledged by experts in China—and instead recalls an earlier era when the only rule of international relations was the prerogative of the mighty.

Beijing has walked back its assertive claims. But it did so not because of its ASEAN neighbors’ opposition to the “9-dash line” in May 2009. It did so only when Washington made clear—first with Secretary of State Clinton’s statements at the ASEAN Regional Forum in July 2010 and most recently with President Barack Obama’s appearance at the East Asia Summit last November—that preserving international maritime law, embodied in the Law of the Sea, is a vital U.S. national interest .Without accession, however, the U.S. position is considerably weakened by charges of hypocrisy, a fact not lost on Beijing and of real concern to China’s neighbors who rely on the United States.

The United States need not take a position on the claims of parties in the South China Sea dispute or in any other dispute. It need only ensure that whatever resolutions are reached are within the bounds of international law. If China or any other party is permitted to simply ignore the rules of one facet of the international system—in this case the Law of the Sea—then the entire system loses legitimacy. Commandant of the Coast Guard, Admiral Robert Papp said it best at the same May 9 forum: “Our legitimacy as a sovereign state and as a world leader…rests with the rule of law.”
The Senate should act to assert the national interests of the United States and ratify UNCLOS as soon as possible. Asserting U.S. credibility in the Asia Pacific and globally by standing by the rule of law is in our economic and security interests. In fact, U.S. ratification of UNCLOS will determine whether the twenty-first century resembles the relatively stable order of the late-twentieth century or is more like the competitive free-for-all of the nineteenth.

(This Commentary first appeared in the May 25, 2012, issue of Southeast Asia from the Corner of 18th and K Streets, http://csis.org/publication/southeast-asia-corner-18th-k-streets-ratification-law-sea.)

Ernest Z. Bower is senior adviser and director of the Southeast Asia Program at the Center for Strategic and International Studies (CSIS) in Washington, D.C. Gregory Poling is a research assistant with the CSIS Southeast Asia Program.

Commentary is produced by the Center for Strategic and International Studies (CSIS), a private, tax-exempt institution focusing on international public policy issues. Its research is nonpartisan and nonproprietary. CSIS does not take specific policy positions. Accordingly, all views, positions, and conclusions expressed in this publication should be understood to be solely those of the author(s).

© 2012 by the Center for Strategic and International Studies. All rights reserved.