US-ASEAN Summit opens up UNCLOS ratification issue

By James Borton

When President Joe Biden and his White House welcome Southeast Asian leaders on May 12 for the start of a two-day US-ASEAN Summit, it is worth noting that they will be commemorating a 45th anniversary of this relationship, one that validates the administration’s Indo-Pacific Strategy as well as charting the future direction of the US with ASEAN’s 10 member states.

If one of the goals of hosting this organization comprising Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam is to secure their participation in a multi-partner Indo-Pacific Pax Americana or “rules-based international order” to curb China’s rising power in the disputed South China Sea, then what better timing for the US to join the UN Convention on the Law of the Sea (UNCLOS) ?

Since Washington has been recalibrating its relationship with the North Atlantic Treaty Organization in a concerted response to Russia’s invasion of Ukraine, the interests of the Biden administration and Congress may also be well served by bringing to a vote the ratification of UNCLOS, the recognized legal instrument to define issues relating to sovereignty, territorial waters and rights and obligations of a maritime state.

While this summit serves to explain America’s Indo-Pacific mission that reinforces a commitment to international law, the ratification of UNCLOS would convince members of the Association of Southeast Asian Nations that the US is no longer merely offering empty promises and geopolitical rhetoric.

China’s offensive maritime maneuvers and its militarization of outposts in the South China Sea do much more than highlight the need for the US Senate to ratify UNCLOS. Two months ago, the US House of Representatives passed the America COMPETES Act of 2022 aimed at increasing US economic competitiveness with China.

The bill included an amendment that stipulated it is in the nation’s best interest to ratify the UNCLOS treaty formally. (The acronym COMPETES stands for Creating Opportunities to Meaningfully Promote Excellence in Technology, Education and Science.)

The Third United Nations Convention on the Law of the Sea was adopted in 1982. One hundred and sixty-two countries, including China and Russia, are signatories to the treaty that governs the world’s oceans. The US is not.

Past endorsements by American presidents Bill Clinton, George W Bush and Barack Obama failed to move the needle forward on this issue.

Some Washington policy observers don’t think the recent resolution from the US House of Representatives is anything more than performative.

However, increasing numbers of proponents argue that ratifying the agreement would give the US more leverage in pressuring other nations to do the same. The US Navy and Coast Guard already largely follow the rules of navigation the treaty lays out.

The time has come to put partisan politics aside and focus on national interests. While the US Navy’s Seventh Fleet continues to reinforce freedom of navigation in the South China Sea’s troubled waters, UNCLOS formally defines limits of a country’s territorial seas, and establishes clear rules for transit through “international straits” and “exclusive economic zones” (EEZs).

With ratification, the United States would have legal standing to bring any complaints to an international dispute resolution body and thus avoid possible confrontation with Chinese naval forces and paramilitary fishing trawlers in the Spratly Islands.

Vietnam, a former chair of ASEAN and a comprehensive partner of the US, has been one of the most vocal critics of China’s assertive actions in the South China Sea. Hanoi is also quick to support the Law of the Sea as a vital instrument for maintaining peace, security, and freedom of navigation and overflights above the challenged sea.

The Vietnamese, along with the Philippines and Malaysia, are growing more impatient waiting for the US effectively to address and manage China’s ongoing aggressive actions to expand its power and influence in the contested sea.

There is increasing consensus among leadership of Joint Chiefs at the US Defense Department, US Chamber of Commerce executives, the oil and gas industry, ocean policy experts, and environmental groups for ratification of the Convention in the Senate.

At present the US recognizes most parts of UNCLOS as customary international law, but that is a much weaker position than ratification and one that leaves the US open to criticism from China, a signatory of the treaty. For many ASEAN leaders, America’s failure to sign on to the treaty serves to weaken its Indo-Pacific pledges.

US freedom of navigation operations (FONOPs) and combating illegal, unreported, and unregulated fishing (IUFF) as challenges to international law are weakened by the Convention’s non-ratification.

US foreign policy has emphasized the role of multilateralism and repudiated efforts led by Beijing to address problems with Southeast Asian nations in response to South China Sea territorial issues. For sure, there’s a loss of moral ground for the US if there’s a failure to ratify the most comprehensive mechanism for multilateral resolution of maritime disputes.

Furthermore, the treaty provides formal cooperation with other countries, because almost all of America’s allies, neighbors and friends are party to the Convention. The political mantra is clear and simple: The US requires maximum freedom for both naval and commercial vessels to navigate and operate off foreign coasts without interference.

With congressional approval, the US could confidently secure its navigational freedoms and global access for military and commercial ships, aircraft and undersea fiber-optic cables.

The US currently asserts its rights to freedom of navigation through customary international law, which is subject to change and diplomatic interpretations. Ratification of UNCLOS would enable the US to regain its rightful strategic place in the Pacific and transform rhetoric into action.

Just as the world watches and waits to see how American actions and rhetoric converge to help Ukraine, it’s also imperative that the US makes a bold decision to ratify the Law of the Sea Treaty to demonstrate its commitment to deepening its partnership with the Southeast Asian nations.

(James Borton is a senior fellow at the Foreign Policy Institute at Johns Hopkins University’s School of Advanced International Studies and the author of Dispatches from the South China Sea: Navigating to Common Ground)