As China challenges the legitimacy of rules it agreed to nearly two decades ago, the United States must step up, take its seat at the table, and ratify the U.N. Convention on the Law of the Sea (UNCLOS). On 12 July, an international arbitral tribunal in The Hague ruled that China’s claim to the entirety of the South China Sea, represented by the infamous “nine-dash line,” has no legal or historical basis. Although China chose not to participate in the proceedings, it is a party to UNCLOS, and the tribunal’s decision therefore is legally binding. No longer can China legitimately claim “indisputable sovereignty” over an area larger than the Mediterranean, build islands to lay claim to resources off its coasts, or restrict the rights of its neighbors to carry out major commercial activities at sea.1
China has not responded well. Soon after the judgment was issued, Chinese president Xi Jinping said “the islands in the South China Sea have been Chinese territories since ancient times. . . . China opposes and will never accept any claim or action based on these awards.”2 As China debates the way ahead—whether to comply or to take aggressive actions such as establishing an air defense identification zone above the South China Sea—the rest of the world, especially other Asian nations, looks to the United States.3 As a Pacific nation, the United States must be prepared to act if China violates the tribunal’s ruling and attempts to restrict freedom of the seas in an area that is the commercial and strategic chokepoint between the Pacific and Indian Oceans. Options include escalating our freedom-of-navigation operations; taking steps to diplomatically isolate China; and using targeted economic sanctions.4
Even though the United States was a lead negotiator on UNCLOS, ratification has long been opposed in the United States. A minority in the Senate has continuously blocked the treaty from a vote, despite arguments from national security and military leaders—from both Republican and Democratic administrations—that ratification is “profoundly in the U.S. national interest.”5 From concerns over licensing and royalties associated with deep seabed mining to an ideological allergy to international institutions, opposition has been vocal enough to keep the United States away from the table and in the company of countries such as North Korea, Iran, and Syria.6
Opponents often argue there is no need to sign a treaty when we have the most powerful navy in the world. Research has shown, however, that nations are more likely to obey international law when they perceive the law to be fair and continually are required to justify their actions.7 It is not simply fear of coercion by force that persuades nations to comply with international law; it is the legitimacy of the system. China’s response does not prove international law is weak, rather, it serves as an example of why legitimacy is important and why nations must require others to justify their actions.
China easily disregarded the tribunal decision, calling it a “farce,” because it believes the system is illegitimate.8 When China ratified UNCLOS in 1996, however, it did not believe it was a “farce.” So what is different now? The provisions have not changed. The likely answer is the United States’ failure to ratify a treaty that has 166 nation signatories.
Unless the United States is willing to use force to coerce China into accepting the tribunal’s findings, it must ensure the rules it helped create—specifically the dispute resolution provisions in UNCLOS—are perceived as legitimate. As long as the United States fails to ratify the treaty, it risks undermining a system created to maintain stability on the world’s oceans and emboldens other nations, such as China, to erroneously cry foul.
2. Simon Denyer and Emily Rauhala, “Beijing’s claims to South China Sea rejected by international tribunal,” Washington Post, 12 July 2016.
3. Katie Hunt and Steven Jiang, “South China Sea: China may establish air defense zone after losing court ruling,” CNN, 13 July 2016, www.cnn.com/2016/07/13/asia/south-china-sea-ruling-reaction-adiz/index.html.
4. Julian Ku, “Possible U.S. Responses to the South China Sea Arbitration Award: The Aggressive FONOPs Option,” Lawfareblog.com, 13 July 2016; “U.S. Response to the South China Sea Arbitration and the Limits of Diplomatic ‘Shameface’ Option,” Lawfareblog.com, 19 July 2016; and “More Possible U.S. Responses to the South China Sea Award: Why Not Economic Sanctions?” Lawfareblog.com, 27 July 2016.
5. Stewart M. Patrick, “(Almost) Everyone Agrees: The U.S. Should Ratify the Law of the Sea Treaty,” The Atlantic, 10 June 2012.
6. United Nations, “Table recapitulating the status of the Law of the Sea Convention,” 10 October 2014, www.un.org/Depts/los/reference_files/status2010.pdf.
7. Harold Hongju Koh, “Why Do Nations Obey International Law,” Yale Faculty Scholarship Series, paper 2101 (1997), http://digitalcommons.law.yale.edu/fss_papers/2101.
8. “South China Sea Verdict,” The Wall Street Journal.