Commentary Magazine


Topic: Law of the Sea Treaty

China Tests Law of the Sea Treaty

I confess I don’t understand the fervor of proponents and opponents of the Law of the Sea Treaty, which is still awaiting Senate ratification and has been since 1982. The former seem to imagine that it will be a vast advance for American interests; the latter that it will be a vast infringement on American sovereignty. Both views seem overblown to me. I have no problem with ratifying the treaty, but at the same time I have no great expectations for what ratification will achieve.

Case in point: the South China Sea, the subject of a long New York Times article today. China has actually signed the Law of the Sea Treaty, but that is not preventing it from asserting a cockamamie “right” to do what it wants within 200 miles of its coast–and within 200 miles of each group of tiny rocks and islands in the South China Sea that Beijing implausibly claims as its national territory. If taken seriously, China’s claims would give it access to the entire sea, even though those waters are also claimed by the Philippines, Malaysia, Vietnam, Taiwan, and Brunei. The Law of the Sea Treaty, by contrast, recognizes freedom of navigation for any nation only 12 miles beyond a country’s shoreline.

This is more than an academic dispute–armed with its off-the-wall legal theories, China is sending its naval ships and paramilitary “fishing trawlers” to assert ownership of disputed territories such as Scarborough Shoal, where a group of Chinese ships have recently been in a standoff with the Philippine Navy. The stakes are high. As the Times notes: “Two-thirds of the world’s natural gas trade passes through the waters of the South China Sea” and “the sea itself is believed to hold a substantial reservoir of energy, with some experts predicting that under the seabed lies as much as 130 billion barrels of oil and 900 trillion cubic feet of gas.”

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I confess I don’t understand the fervor of proponents and opponents of the Law of the Sea Treaty, which is still awaiting Senate ratification and has been since 1982. The former seem to imagine that it will be a vast advance for American interests; the latter that it will be a vast infringement on American sovereignty. Both views seem overblown to me. I have no problem with ratifying the treaty, but at the same time I have no great expectations for what ratification will achieve.

Case in point: the South China Sea, the subject of a long New York Times article today. China has actually signed the Law of the Sea Treaty, but that is not preventing it from asserting a cockamamie “right” to do what it wants within 200 miles of its coast–and within 200 miles of each group of tiny rocks and islands in the South China Sea that Beijing implausibly claims as its national territory. If taken seriously, China’s claims would give it access to the entire sea, even though those waters are also claimed by the Philippines, Malaysia, Vietnam, Taiwan, and Brunei. The Law of the Sea Treaty, by contrast, recognizes freedom of navigation for any nation only 12 miles beyond a country’s shoreline.

This is more than an academic dispute–armed with its off-the-wall legal theories, China is sending its naval ships and paramilitary “fishing trawlers” to assert ownership of disputed territories such as Scarborough Shoal, where a group of Chinese ships have recently been in a standoff with the Philippine Navy. The stakes are high. As the Times notes: “Two-thirds of the world’s natural gas trade passes through the waters of the South China Sea” and “the sea itself is believed to hold a substantial reservoir of energy, with some experts predicting that under the seabed lies as much as 130 billion barrels of oil and 900 trillion cubic feet of gas.”

China seems bent on laying claim to those resources, no matter what the Law of the Sea Treaty says, which highlights the chief problem with international law: the difficulty of actually enforcing it. That will require the U.S. to take an increasingly assertive stance to back up, with naval and air power if need be, the rights of our allies against China’s resources-grab. Sending a U.S. Navy cruiser or destroyer to Scarborough Shoal to support our Philippine friends would have sent a far more powerful message of compliance with international law than Senate ratification of the Law of the Sea Treaty.

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