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Destroyer Spruance is one of three warships to have patrolled near some of China's islands and claims in the South China Sea. (Photo: MC1 Jay Pugh/Navy)

The South China Sea Ruling Once Again Shows the USA Needs to Ratify the Law of the Sea Treaty

Mark Leon Goldberg

An international court of arbitration today ruled in favor of claims made by the Philippines against China over China’s territorial acquisitions in the South China Sea. This is a landmark ruling that could have profound implications for the role of a rising power — China — in the international system.

It also demonstrates that one established global power–the United States– might be well served by ratifying a key global treaty under which this dispute was adjudicated.

Territorial Dispute

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For years, Chinese vessels have harassed fishers, claiming they were infringing on Chinese territorial waters. China also staked claims to reefs and islands far off its coast, so the Philippines brought a legal case against China to an arbitral tribunal which was housed at the Permanent Court of Arbitration in the Hague.

The geo-political stakes of this case were high. The USA has moved naval vessels into the region in support of its allies, including the Philippines. There have been small scale skirmishes that have the potential to escalate into a wider conflict between China and its neighbors, into which the USA could be drawn.

In 2013, the Philippines sought to have China’s territorial claims adjudicated through the United Nations Convention on the Law of Sea (UNCLOS) which is a decades old treaty that sets a rules-of-the road for the seas. This includes specific rules on how to delineate the countries territorial waters and exclusive economic zones. Both China and the Philippines are parties to the treaty, so they used the procedures of the Law of Sea treaty to arbitrate these disputes.

China did engage this process by presenting its legal claims to the court, but it is probably fair to say they engaged in bad faith because Beijing consistently said it would ignore the final ruling. This is problematic because the Law of the Sea Treaty has no enforcement mechanism–there’s no international maritime police to force China to withdraw its claims. It requires the voluntary compliance of its member states, and china does not seem to be willing to comply.

Enter America, the scold

With the ruling strongly in favor of a key US ally in the region, the United States has a keen interest in ensuring China comply. The problem here is that the USA is not a member of the UN Convention of the Law of the Sea. Though the USA signed the treaty in the 1980s, the US Senate has yet to ratify it.

Here’s today’s statement from the State Department:

When joining the Law of the Sea Convention, parties agree to the Convention’s compulsory dispute settlement process to resolve disputes. In today’s decision and in its decision from October of last year, the Tribunal unanimously found that the Philippines was acting within its rights under the Convention in initiating this arbitration.

As provided in the Convention, the Tribunal’s decision is final and legally binding on both China and the Philippines. The United States expresses its hope and expectation that both parties will comply with their obligations.

The fact that the USA has not ratified a treaty to which most of the world belongs makes it easier to dismiss statements like this. Here, for example, is the former Swedish foreign minister and a well respected international diplomat on Twitter:

But it’s not only foreign diplomats who see the hypocrisy here. The top Democrat on the Senate Foreign Relations Committee, Ben Cardin used today’s ruling to once again call for ratification of UNCLOS.

“As we seek to work with our partners in the region to construct a twenty-first century architecture for the governance of Asia’s maritime domains consistent with international law, the United States cannot, and should not, risk marginalization by remaining on the outside of this critically important global agreement.”

We are now facing a situation in which a rising power–China–is poised to ignore the rule of law, and the established global power–the USA–is scolding China to abide by a set of rules that it does not formally accept.

Needless to to say, this is lining up to be harmful moment for the idea that the rule of law should replace the law of the jungle when high stakes territorial disputes arise.

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Have 20 minutes and want a deeper understanding of the global issues at stake with this ruling? Have a listen to this podcast interview with Greg Poling of the Center for Strategic and International Studies.