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U.S. Sets Itself Apart from International Maritime Order

Jun 15 , 2016
  • Wang Hanling

    Director of National Center for Ocean Affairs and the Law of the Sea

At the Shangri-La Dialogue in Singapore on June 4, US Defense Secretary Ash Carter openly accused China of taking extensive, unprecedented moves that “isolate” itself, and warned that by continuing doing that, China would erect a “Great Wall of self-isolation”. Although Carter used the word “principle” 37 times in his speech to emphasize the weight the US places on the rules and norms of international law, it was the US, not China, that is engaging in “self isolation” in international maritime legal order. The US has isolated itself from the contemporary international maritime legal order based on the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

First, taking advantage of its status as the sole superpower of the present-day world, the US has refused to sign and ratify the UNCLOS. By Oct. 10, 2014, 157 countries had signed it, while 166 countries and international organizations had ratified or joined it. The US is one of the few countries that have not ratified it — and the only major country that has not done so. US State Secretary John Kerry is keenly aware of his country’s lonely, embarrassing position. In a recent exclusive interview with Phoenix TV, responding to a question involving the US’ failure to participate in the UNCLOS, Kerry said the US has not ratified it, but is a “signatory”. However, according to international law on conventions, and the UNCLOS, in order to be a signatory, be a party to, and subject itself to an international convention, a country must ratify it through domestic legal procedure. Merely signing on the text of the document does not legally count.

The US also signed but has not ratified the 1994 Agreement Relating to the Implementation of Part XI of the Dec. 10, 1982 UN Convention on the Law of the Sea. Therefore is it not a formal signatory to this agreement, either. The US signed and ratified the 1995 Agreement for the Implementation of the Provision of the United Nations Convention on the Law of the Sea of Dec. 10, 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. But countries that are not signatories to the UNCLOS could also ratify and participate in that agreement, without necessarily being signatories to the UNCLOS itself. To sum it up, the US is not a signatory or a contracting party to the UNCLOS.

Second, the US has selectively utilized the UNCLOS, and has engaged in a lot of activities in violation of it. The US has demonstrated undisguised pragmatism and double standards regarding its attitude to specific international treaties, and either emphasizes or ignores them based on its own national interests. The US usually actively initiates or participates in the making of international norms, so as to take the initiative and make international rules conducive to US interests. The US would either disapprove, or seek to change rules that it deems undesirable, or simply resort to unilateralism. The US attitude to the UNCLOS is a perfect case in point. The US claimed that the UNCLOS mirrors customary international law, and so although it has not ratified it, the US abides by it. In the Phoenix TV interview, Kerry stated the US government implements and follows the UNCLOS. In practice, however, the US has selectively used the UNCLOS when it serves US purposes, ignoring it when it doesn’t. The US has always, in its non-signatory capacity, interfered with UNCLOS signatory countries’ maritime legislation, territorial sea baseline demarcations, as well as claims to maritime territory, and maritime rights and interests, even resorting to force or threat of force.

The US has conducted so-called “freedom of navigation operations” against dozens of countries and regions since 1979, sending military ships or planes to challenge other countries’ “excess maritime claims”. Yet it considers 16 major maritime passageways in the world as under US control, which is obviously in violation of the rules of freedom of navigation as stipulated by the UNCLOS. From late 1983 to early 1984, the US laid mines near several main ports of Nicaragua, in both inland waters and territorial sea, seriously threatening Nicaraguan security and navigation. Nicaragua brought the issue to the International Court of Justice in April 1984. The US angrily withdrew from legal proceedings when the court decided in November that it had jurisdiction over the case. After the case was closed, US officials tore the court’s verdict, which was in favor of Nicaragua, to shreds in public. Such facts indicate US contempt of international law and international institutions of justice.

Since the US began to “rebalance” to the Asia-Pacific in 2010, the West Pacific has become the main stage for its new strategy, China’s maritime disputes with some neighboring countries, therefore, have been its main handle. Stepping into the South China Sea, the US has rallied its allies and “partners” to contain China, attempting to dominate the Asia-Pacific and retain its global hegemony. On Dec. 5, 2014, the US State Department published Limits in the Seas – China: Maritime Claims in the South China Sea, vilifying the legitimacy of China’s nine-dashed line in the South China Sea as well as its corresponding claims to rights and interests, in an evident attempt to support the Philippines’ request for arbitration, and exert influence and mount pressure on the arbitration tribunal. Closely in step with the South China Sea arbitration, the US has repeatedly dispatched military ships and planes to conduct “freedom of navigation/overflight operations” within 12 miles of Chinese features in the South China Sea. In anticipation of a final ruling by the tribunal, the US has called on its partners in the region and around the world to take measures to “support rules-based order in the Asia-Pacific”. Just as Guan Youfei, director of the Central Military Commission Office of International Military Cooperation, said, Carter’s aforementioned remarks were aimed at isolating China, and making every country in the region isolate China. The US attempt to rope in allies to mount pressure on China, and force China to accept and implement the South China Sea arbitration it has manipulated from behind the scenes is now in broad daylight.

As a signatory to the UNCLOS, China has been actively implementing it, and handling maritime affairs, including the South China Sea issue, in strict accordance with its stipulations. China has been consulting and cooperating with ASEAN nations on the South China Sea issue following the “dual track” approach under corresponding regional and bilateral frameworks of the UNCLOS and the Declaration on the Code of Conduct on the South China Sea. China has set up the 3-billion-yuan South China Sea Cooperation Fund, advocated establishment of the Asian Infrastructure Investment Bank, proposed to jointly build the Maritime Silk Road, and put forward the concept of “Asian Community of Shared Destiny”, benefiting the South China Sea area as well as all related countries in the world. By now, dozens of countries have made explicit statements supporting China’s principled stances on the South China Sea issue and the Philippine-initiated arbitration. The US, which has maintained a lonely existence beyond the international maritime legal order, will eventually isolate itself by attempting to isolate China.

(The Authors: Wang Hanling, director of the Center for Ocean Affairs and the Law of the Sea of the Chinese Academy of Social Sciences, research fellow of the South China Sea Research Center at Nanjing University; Peng Sixiang and Zheng Yaran, graduate students at the Department of Law of the CASS Graduate School.)  

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