Sometime in the next several weeks, an international tribunal in The Hague will announce its long-awaited ruling on a territorial dispute in the South China Sea between China and the Philippines. The court is expected to rule at least partially in favor of Manila.
China already has said it will ignore the ruling of the tribunal, which it claims is biased.
If China does disregard the decision, the United States almost certainly will portray the case as yet another instance in which Beijing flouts international law. But any U.S. attempt to pressure China over its rejection of the ruling will be complicated by the fact that Washington itself has not ratified the treaty on which the Philippine complaint is based — the United Nations Convention on the Law of the Sea, or UNCLOS.
America is not a party to the dispute (although we have views on it--in short, we have no position on ownership but insist that disputes be settled peacefully and we insist that the EEZ does not eliminate freedom of the seas by converting international waters to national territory in full or in part as China claims--going so far as to calling the South China Sea region the Chinese city of Sansha!), while China and the Philippines are parties in the dispute.
America is not a member of the treaty, UNCLOS (or less charitably, LOST), while China and the Philippines have both ratified the treaty.
So why does China's compliance with an enforcement mechanism in a dispute with a fellow treaty member (and others, too) rely on whether or not America--which has no territorial claims in the region--is a member of the treaty?
Shouldn't China observe the treaty provisions in a dispute with fellow treaty member the Philippines?
Of course, China has not contested the charge by the Philippines because China refused to recognize the authority of the body hearing the dispute when China joined the treaty.
Perhaps China would have had a less complicated task of criticizing the anticipated ruling--which can't fully settle the dispute even on paper since LOST doesn't actually cover how you decide who owns what--if they had fully ratified all provisions of the treaty, eh?
And why do we have a foreign policy bureaucracy if we can't figure out how to exert influence from outside the treaty?
Consider too that America is using naval and air units to challenge China's claims to the South China Sea that defy international law apart from the treaty.
China's refusal to adhere to international law is why they pull stunts like this:
A U.S. Air Force RC-135 reconnaissance aircraft flying Tuesday in international airspace over the East China Sea was intercepted in an "unsafe manner" by a Chinese J-10 fighter jet, several defense officials tell CNN.
The Chinese jet was never closer than 100 feet to the U.S. aircraft, but it flew with a "high rate of speed as it closed in" on the U.S. aircraft, one official said.
The Chinese want to drive us from the region--which they assert is not international airspace--by force. If China can intimidate us, the rest of the region has no chance of resisting China for long.
How is it possible to claim that when that use of military power is insufficient to deter China from illegally claiming territory that America joining the Law of the Sea treaty would get China to back down over its claims?
Remember, China isn't relying on the Law of the Sea treaty for its claim on the South China Sea (well, 80% of it), which Peking says is based on "traditional" Chinese claims rather than international law.
Further, don't forget that the LOST provisions about exclusive economic zones (EEZ) based on ownership of bits of land have made it more important to contest the control bits of rocks--or make them as China has done to base those EEZ claims on.
Considering that China's territorial claims seem to expand with increases in their military capabilities, I'd rely on the traditional means of a strong military to enforce freedom of the seas rather than pretend--for a while--that a piece of paper can do the job instead.
And organize allies who similarly oppose China:
Expansion of Chinese power, particularly China's military power, and North Korean belligerency are the precipitate causes for the emerging Asian security network. In the late 1990s, Southeast Asian nations began reacting to Chinese territorial expansion in the South China Sea. Chinese maritime and island claims encroached on Vietnamese and Filipino territory. Hanoi and Manila faced a common security threat.
Beijing's audacious island manufacturing strategy in the South China Sea has provoked fierce Vietnamese and Filipino resistance. China creates artificial islands then says they are Chinese territory. The larger pseudo-islets now have air bases capable of handling jet fighter-bombers.
India is edging toward that opposition, too:
Senior officials in Washington said on June 7 that the United States and India have finalized the text of an agreement on sharing military logistics, and that the deal will be signed “very shortly.”
Just kill this treaty. We've survived just fine outside of it for about 35 years and the benefits claimed are nonsense. China will not admit that any piece of paper hinders their claims at sea.