CAN THE TREATY STOP CHINA AND RUSSIA FROM THEIR TERRITORIAL CLAIMS?
Defenders of the Law of the Sea Treaty say that it is necessary to resolve two regional problems: China’s attempt to assert control over the South China Sea and Russia’s efforts to claim sovereignty over the Arctic ice shelf, where the warming global climate may make oil drilling more technically feasible in the future.
China is a signatory to the Law of the Sea Treaty but, nevertheless, it is ignoring one of its key provisions— the offshore exclusive economic zone. The treaty gives each country bordering the ocean a zone of two hundred miles off its coast in which it can drill for oil or engage in any economic activity. Even though the treaty bars other nations from economic activity—such as oil drilling—within another country’s two-hundred-mile zone, China is claiming that it can drill anywhere in the South China Sea, even right off the Vietnam coast.
In June 2012, the China National Offshore Oil Corporation announced that it was “offering a new batch of oil-exploration blocks inside the 200-nautical mile exclusive economic zone granted to Vietnam under the United Nations’ Law of the Sea Treaty.”33
Vietnam protested, but the International Seabed Authority—charged with enforcing the treaty—did nothing to bar the Chinese action. China does whatever it wants, wherever it wants, as usual, and only nations like the United States scrupulously abide by their treaty commitments.
To believe that China would be deterred from its imperialistic ambitions by the rulings of the International Seabed Authority is ridiculous. The fact that China is already a signatory to the treaty has obviously not stopped it from trying to elbow aside not only Vietnam, but also the Philippines, Malaysia, and Indonesia for control of the South China Sea.
Peter Brookes debunks the idea that the treaty would inhibit China, noting that China, “claims ‘indisputable sovereignty’ over the entire South China Sea—more than 1 million square miles. (LOST allows for 12-mile territorial waters and a 200-mile Exclusive Economic Zone—or EEZ—from a country’s coastline.) Beijing has flouted LOST for years while building a mighty military machine, especially a navy, to assert its claims. It’s fantasy believing that an American signature on a piece of paper will change China’s mind about the South China Sea and EEZ freedom of navigation.”34
One of the nation’s most astute observers of China, Gordon Chang, agrees. Writing in the
China seems totally undaunted by its treaty commitment under the Law of the Sea Treaty.
Nor would LOST be any more helpful in adjudicating the controversy with Russia over the Arctic.
Brookes points out that advocates of the treaty say we
supposedly need to be inside the LOST “tent” to counter Moscow’s and others’ claims in the Arctic, where climate change might allow harvesting of once-inaccessible natural resources around the North Pole. (US government surveys suggest about one-third of the world’s yet-to-be-discovered, recoverable natural resources are below Arctic ice floes.)
In fact, we’re already a member of the Arctic Ocean Conference—which is doing a good job of resolving the claims by the five circumpolar states (the United States, Canada, Russia, Denmark and Norway) in the High North.36
Former assistant secretary of defense Frank Gaffney points out that it is a lot easier to get five governments to agree than the 160 that make up the International Seabed Authority.37
And all this assumes that the Seabed Authority would dispense justice. The record of the United Nations is dismal in this regard and the chances are that the ISA nations would seek to curry favor with Moscow or Beijing—or repay their bribes and favors—by unjust and arbitrary rulings, even if just to stick it to the United States.
Defense Secretary Leon Panetta defended the treaty before the Senate Foreign Relations Committee, saying that “by moving off the sidelines, by sitting at the table of nations that have acceded to this treaty, we can defend our interests, we can lead the discussions, we will be able to influence those treaty bodies that develop and interpret the Law of the Sea.”38
But Frank Gaffney argues, “This is simply not so if, as is true of the LOST’s various institutions, we would have but one seat among many, and no certainty that we can decisively ‘influence bodies that develop and interpret the law of the sea.’”39
“In fact,” Gaffney adds, “thanks to the rigged-game nature of those institutions, such bodies can be relied upon to hamstring us—by, for example, applying environmental regulations over which we have no control to our Navy’s anti-submarine warfare exercises and our domestic emissions into inland air and water that migrates to the international oceans.”40
TREATY OPENS DOOR TO NAVAL WEAKNESS
Yet admirals and Navy service chiefs have advocated ratifying the Law of the Sea Treaty. General Martin Dempsey, chairman of the Joint Chiefs of Staff, for example, said this treaty “codifies navigational rights and freedoms essential for our global mobility.”41
Former defense secretary Rumsfeld rejects the Navy’s argument for the treaty:
The most persuasive argument for the treaty is the US Navy’s desire to shore up international navigation rights. It is true that the treaty might produce some benefits, clarifying some principles and perhaps making it easier to resolve certain disputes. But our Navy has done quite well without this treaty for the past 200 years, relying often on centuries-old, well-established customary international law to assert navigational rights. Ultimately, it is our naval power that protects international freedom of navigation. This treaty would not make a large enough additional contribution to counterbalance the problems it would create.42
Senator James Inhofe (R-OK) argues that “ceding any authority to an international body is not only a threat to our sovereignty, it also creates another avenue for other nations to stop US unilateral activity.”43
So why are the admirals pushing the treaty? Inhofe believes that the likely future weakness of the US Navy may be at play here. He explains that “some fear the Navy is at a tipping point. Increased global threats, combined with fewer resources, have created growing concern for its future. Devastating budget cuts under the Obama administration mean doing even more with much less. If the proposed defense cuts through sequestration go into effect, potential cuts include the littoral combat ship, amphibious ships, a reduction in aircraft carriers and far fewer sailors. After sequestration, our fleet could be smaller than 230 ships—the smallest since 1915.”44
Inhofe wonders, “could it be that some have decided to put their hope in a piece of paper rather than provide the resources necessary to maintain our Navy’s traditional strength?”45
But it is pure fantasy to assume that the Seabed Authority would be impartial and just in its rulings. And it is further fantasy to believe that powers like Russia and China would listen to it. What recourse would we have if they don’t? Both nations have veto power in the UN Security Council and can stop any enforcement action with teeth. The US will, of course, honor the decisions of the authority if we join, but other, autocratic nations will thumb their noses at it.
Brookes says that relying on the treaty rather than on our own Navy to keep the sea-lanes open is “outsourcing national security”!46
Democratic Senator Chris Coons (D-DE) asked General Dempsey the key question during hearings on the LOST: “Does failure to ratify this treaty… in any way compromise the ability of the United States to project force around the world, to support and sustain our allies…? Are we at risk as a result of failure to ratify this treaty?”
