South China Sea

Law of the Sea and Maritime Strategy

By Matthew Waxman
Sunday, May 18, 2014, 9:49 PM

Recent flare-ups in the South China Sea, including provocative moves by China to put a huge oil rig in waters also claimed by Vietnam and the Philippines’ challenge to China over its maritime claims, have produced a lot of reporting on law of the sea, territorial legal disputes, and how disputed territorial claims in Asia could escalate. A few months back, so too did the U.S. dispute with China over military activities in its Exclusive Economic Zone.  Sunday’s New York Times now discusses how Russia’s annexation of Crimea could, by way of large corresponding zones in the Black Sea, give Russia claim to vast undersea resources, including fossil fuels. That latter possibility is especially interesting because it would come at the expense of Ukraine’s potential to become more energy independent of Russia and could offset over the long-term some of the economic cost to Russia of its aggressive moves.

Together, these various strands weave a larger one about international law (including law of the sea) and how states wage global resource competition, and they raise – but don’t yet answer – questions about how law can prevent this competition from turning into hot wars.

Keith Johnson has an online essay at Foreign Policy on the historical development of the law of the sea, relating current maritime claims in the South China Sea to British-Dutch imperial rivalries of the 1600s – and the influential legal writings that came out of them. He reminds readers that international law of the sea has, for centuries, been interpreted and used strategically by states to advance claims either for free navigation or for exclusive sovereignty, depending on their economic and security needs of the time.

On the current maritime disputes between China and its neighbors, my colleagues at the Council on Foreign Relations produced this very helpful set of backgrounders. The Wall Street Journal published an informative piece a couple of weeks ago comparing the disputes between China and the Philippines and Vietnam, and discussing Chinese political tactics in advancing its legal claims. A companion piece in the Journal discussed how the dangers of escalation between China and Vietnam are increased by rising nationalism in both countries and a failure to develop bilateral crisis-management protocols.

John Bellinger has written a lot over the years here on Lawfare about why it’s in the U.S. national interest to ratify the UN Convention on the Law of the Sea (UNCLOS). The Obama and Bush (II) administrations have taken that position, too, and I agree. The United States has more to gain than to lose in positioning itself fully inside that system, and in my view that balance of interests in favor of ratifying will likely grow in the future. For the foreseeable future, though, Senate action on this treaty seems very remote.

I’ve seen remarkably little public commentary or discussion by the Obama administration about how recent flare-ups relate to the U.S. refusal to ratify UNCLOS, even though John Kerry sought to move this treaty forward when he was chairman of the Senate Foreign Relations Committee. In reaction to the Chinese oil rig incident, the White House stated: “We're very concerned about dangerous conduct and intimidation by government-controlled assets operating in this area, and we call on all parties to conduct themselves in a safe and professional manner to preserve freedom of navigation and overflight, to exercise restraint, to take steps to lower tensions and to address competing sovereignty claims peacefully and in accordance with international law.”

So far as I’m aware, however, the Obama administration has not specifically linked any of the recent clashes to its position on UNCLOS. Although current flashpoints do not all relate directly to UNCLOS (many of the biggest East China Sea and South China Sea disputes are about disputed land, not sea, but they have implications for the latter), I wonder how it and any future prospects for U.S. ratification feature in current U.S. government policy-making.