USS John S. McCain

USS John S. McCain conducts a freedom of navigation operation in the South China Sea on 5 February 2021. (Photo: Markus Castaneda, U.S. Indo-Pacific Command)

The USA and UNCLOS: Time to Ratify

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Actions speak louder than words. Ratifying UNCLOS would strengthen the US’ stabilising role in the Indo-Pacific.

“America is back. Diplomacy is back at the center of our foreign policy.”

“US foreign policy must start with diplomacy rooted in America’s most cherished democratic values including respecting the rule of law.”

President Joe Biden’s first foreign policy speech two weeks not only outlined the foreign policy priorities and direction of his administration, it signaled a dramatic change from that of his predecessor Donald Trump.

On his first day in the Oval Office, the president got down to the business of reorienting US foreign policy from that of his predecessor by signing several important executive orders. These included ones to rejoin the Paris Agreement on climate change, revise immigration enforcement policies, and end the bans on entry to the U.S. of individuals from designated majority-Muslim countries.

Biden realises that the Indo-Pacific will be the main crucible where this reorientation will be tested. Soon after his inauguration, he appointed a top-notch diplomat, Kurt Campbell, a former Assistant Secretary of State for East Asian and Pacific Affairs under the Obama administration, as the first-ever Indo-Pacific coordinator at the National Security Council (NSC). Emily Horne, the NSC spokesperson, confirmed that the Indo-Pacific team is the largest National Security Council directorate.

There is some unfinished business in the US foreign policy from well before Donald Trump’s single term as president that the Biden Administration and Democrat-controlled Senate should complete. Ratifying the United Nations Convention on the Law of the Sea (UNCLOS) would advance the administration’s foreign policy priorities and help it in Southeast Asia and the wider Indo-Pacific live up to its rhetoric on American leadership and multilateralism.

Despite participating in all of the UNCLOS negotiations from 1974 to 1982, the US only signed the convention in 1994. Since then the Senate has failed to ratify it despite the introduction of an UNCLOS implementing agreement to address American reservations about the seabed chapter that delayed US signing on. The executive’s last serious effort to convince the Senate to ratify UNCLOS came in 2004 when the Joint Chiefs, the Chief of Naval Operations, all combatant commanders, and energy companies with seabed interests encouraged the Senate to consider ratification. Currently, the US only recognises most parts of UNCLOS as customary international law, a weaker position than ratification and one that leaves the US open to criticism from UNCLOS ratifiers like China. President Biden should seek to leverage his years in Congress and the relationships he has built over this time in the Senate to mount a larger ratification campaign than the one that failed fifteen years ago.

Currently, the US only recognises most parts of UNCLOS as customary international law, a weaker position than ratification and one that leaves the US open to criticism from UNCLOS ratifiers like China.

Seasoned US legal experts though think that UNCLOS ratification will remain in the “too hard basket” and the Biden administration will seek to revive US leadership elsewhere. The latest developments in the Indo-Pacific, however, suggest there has never been a more important time for the US to join the 168 parties that have ratified the convention of the global maritime rules-based order. As China’s influence grows and challenges to the international maritime legal order mount, particularly in the South China Sea, American efforts to push back and rally others against this Chinese challenge are undercut by UNCLOS non-ratification.

In the last several years, China has become more aggressive in asserting its extensive claims in the South China Sea. There has been a serious standoff involving the China Coast Guard and other claimant states such as the Philippines, Malaysia, and Vietnam. Earlier this year, China enacted a Coast Guard Law that authorises its Coast Guard to fire on foreign vessels in their claimed maritime area if deemed necessary. With this new law, it is most likely that there will be more maritime incidents and more dangerous ones in the South China Sea.

In response, even though the US has not ratified UNCLOS, it has tried to defend and enforce the freedoms of the sea as provided for by UNCLOS by conducting regular freedom of navigation operations (FONOPs) to challenge the maritime rights claimed by coastal states that the US holds as unlawful under UNCLOS. These include China’s unlawful claims in the South China Sea. Last year, the US Coast Guard issued its illegal, unreported, and unregulated fishing (IUUF) strategic outlook that underscores the importance of a US leadership role in eradicating IUUF. US FONOPs and IUFF activities in Southeast Asia would gain more support and legitimacy if the US ratified UNCLOS as would the pursuit of its desired leadership role. It would also preclude further Chinese criticisms of US non-ratification.

It is the US’ interest to underwrite the rules-based maritime order for the peaceful and secure freedom of navigation and to counter China’s hegemonic and bullying actions in the South China Sea. Taking into account the changing geopolitical situation and the maritime security challenges that face the Indo-Pacific today, US ratification of UNCLOS would enhance the legitimacy and acceptance of US FONOPs and show America’s strong commitment to preserving international law and the rules-based international order in the Indo-Pacific. President Biden and the US Senate the time has come to join UNCLOS.

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