Stewart M. Patrick

The Internationalist

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The South China Sea and the Law of the Sea

by Stewart M. Patrick
September 5, 2012

U.S. Secretary of State Hillary Clinton (L) speaks with ASEAN Secretary-General Surin Pitsuwan (R) during a meeting at the ASEAN Secretariat in Jakarta September 4, 2012 (Jim Watson/Courtesy Reuters). U.S. Secretary of State Hillary Clinton (L) speaks with ASEAN Secretary-General Surin Pitsuwan (R) during a meeting at the ASEAN Secretariat in Jakarta September 4, 2012 (Jim Watson/Courtesy Reuters).

Conflict is simmering in the South China Sea, where China is butting heads with four members of the Association of Southeast Asian Nations (ASEAN)—Vietnam, the Phillippines, Malaysia, and Brunei (as well as Taiwan)—over territorial claims. As China seems to gradually step up aggression in the region, the Obama administration continues the seventeen-year-old policy of  backing ASEAN as a hedge against nationalist aggression by the burgeoning naval power, China.

On Monday, U.S. secretary of state Hillary Clinton announced firm U.S. endorsement for the Statement of ASEAN Foreign Ministers on ASEAN’s Six-Point Principles on the South China Sea. Secretary Clinton also pledged to seek Chinese agreement for its Code of Conduct (CoC) during a meeting with Chinese foreign minister, Yang Jiechi. The CoC would commit parties to abide by the UN Convention on the Law of the Sea (UNCLOS) and to resolve disputes peacefully.

China opposes multilateral involvement in the region, however, and would prefer to negotiate with each country individually, because presumably it would hold more sway in bilateral talks. In response to Clinton’s announcement, the Chinese foreign ministry spokesperson’s remarks clearly exhibited frustration with the United States for professing neutrality while supporting one side. Secretary Clinton was welcomed by an even more caustic sentiment in the state mouthpiece, Xinhua:

“The U.S. government also has to understand that when it comes to matters concerning China’s sovereignty and territorial integrity, Beijing will not compromise with any one [sic], including Washington. The United States should stop its role as a sneaky trouble maker sitting behind some nations in the region and pulling strings.”

China is by no means the only country to be jostling for advantage. Vietnam, for example, adopted a law on June 21, 2012 claiming sovereignty over the islands, and Vietnamese leaders allowed a rare protest of anti-Chinese sentiment. But ultimately, China has the greatest potential to threaten freedom of navigation, and U.S. interests in a region through which “at least 50 percent” of the global trade moves.

Of course, Secretary Clinton’s lectures about the Code of Conduct would be more credible if the United States were a party to UNCLOS. But Congressional Republicans continue to stall ratification of the treaty.

Senate Democrats will likely bring UNLOS to a vote after the November elections, during the lame-duck session of Congress, when some representatives might be less averse to casting a controversial vote. But even then, despite universal support for the convention from Secretary of Defense Leon Panetta and the chairman of the Joint Chiefs of Staff, General Martin Dempsey, and U.S. multinational corporations, republican Senators might still marshal a blocking coalition. And later in the future, the treaty’s prospects obviously hinge on the November elections. The 2012 republican platform expressly condemns the treaty—in a notable departure from the Republican administration of George W. Bush. While Mitt Romney has remained silent on the issue this year, he would be unlikely to support ratification.

As I’ve written before, it is high time for the United States to ratify the UN Convention on the Law of the Sea. With tensions rising in the South and East China Seas, the need is only growing.

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