By Representative Eliot L. Engel & Admiral James G. Stavridis, USN (Ret.)
This piece was also published on the Huffington Post Blog
In the days ahead, a Tribunal established by the Law of the Sea Convention is expected to issue a report on the legality of the territorial claims of the People’s Republic of China in the South China Sea. This determination will drop like a rock into still water, with a dramatic ripple effect causing serious ramifications for the future of every country in the Asia-Pacific—and for the United States.
Under the Law of the Sea Convention, The Philippines challenged China’s so-called “nine-dash-line,” a line of demarcation in the South China Sea that China’s government cites to justify its territorial claims. The Tribunal’s authority to adjudicate this manipulation of the law under the Convention is clear, and it has fulfilled its duties to the letter. The Philippines and China, both parties to the Convention, are legally bound to abide by the ruling.
Yet China has flatly rejected the Tribunal’s legitimacy and has encouraged other countries to do the same. The Tribunal’s judgment may well declare illegal China’s massive claim in the Sea, and China has worked aggressively to undercut the Tribunal every step of the way.
Assuming the ruling goes against China there’s a very good chance that China and possibly a number of other governments will choose simply to ignore the Tribunal’s report. Should that happen, China will carry on unchecked in a strategically critical area, and the future of the UN Convention on the Law of the Seas—the “constitution of the seas”—will be called into question.
The United States has a strong interest in ensuring that scenario doesn’t come to pass. Unfortunately, over several decades, the Senate has failed to accede to the Law of the Sea Convention, relegating the US to a passive instead of an active leadership role. As a result, we will have a great deal of difficulty helping solidify a rules-based order in the Asia-Pacific.
Unfortunately, China is gaining traction. Its leaders have trumpeted a list of other countries that are willing to flout international law and governments within Asia have begun taking sides. At a recent meeting, the Association of Southeast Asian Nations (ASEAN) appeared ready to declare a consensus position backing the Philippines in the dispute, only to rescind its statement within hours.
At the same time, China continues to ratchet up tensions in the region. Last month, China sent a warship within 24 miles of several islands in the East China Sea, the Senkakus, which have been administered by either Japan or the United States since 1895. This provocation doesn’t bode well for China’s response if the Tribunal ruling doesn’t go its way.
The rejection of the Tribunal’s judgment by parties to the Convention would carry with it grave implications. Ignoring the ruling would mean ignoring a way to defuse an escalating crisis. While it’s unlikely that any party will get exactly what it wants from the ruling, it would manage to settle years-old disputes. That’s the point of creating instruments like the Convention and establishing structures like the Tribunal: to ensure all countries are playing by the same set of rules.
To ignore the ruling would also set a dangerous precedent for international law. If countries pick and choose to which parts of international law they will adhere, instruments such as the Law of the Sea Convention lose value and credibility.
The United States strictly adheres to the provisions of the Law of the Sea Convention. We understand the value of upholding international law. By establishing universal standards for global issues, we give diplomacy a better chance of succeeding and help ensure that a large country like China won’t simply steamroll smaller neighbors when disagreements arise. Ordinarily, the United States would be in a good position to urge governments to stick to their obligations and abide by the Tribunal’s decision.
Except we’re not party to the Law of the Sea Convention. By our own choosing, we are shut out of the process. Despite the fact that the United States champions freedom of navigation and the international rule of law, our Navy carries out those policies around the world and has long supported joining the Convention, and the Convention has won broad bipartisan support, a handful of Republican Senators have undercut America’s ability to stand up for our own values and interests. This is particularly troubling at a time when one of the pivotal international concerns of the 21st century is coming to a head.
American leaders will continue to support the Tribunal and encourage governments to abide by its decision. But we can and should be doing more, to include ratifying the Convention itself. The stakes are simply too high for the United States to take itself out of the lineup. China is working to deepen divisions and consolidate its power in Asia. If China gets its way, it will derail efforts to establish a rules-based order in the Asia-Pacific, worsen a potentially dangerous situation in the South China Sea, and undermine America’s ability to ensure maritime stability around the world.
Representative Engel (NY-16) is the Ranking Member of the House Committee on Foreign Affairs; Admiral Stavridis is the Dean of the Fletcher School of Law & Diplomacy at Tufts University and is a former NATO Supreme Allied Commander and Commander of the U.S. Southern Command.