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At the virtual summit of the Quadrilateral Security Dialogue held on March 12, the Quad leaders reiterated their firm commitment that the rules-based international order would be established in the East the South China Seas. Their joint statement reaffirmed, “We strive for a region that is free, open, inclusive, healthy, anchored by democratic values, and unconstrained by coercion.†The “coercion†in that statement was pertaining to China. Â
The Quad is the brainchild of Shinzo Abe, who as Japan’s prime minister proposed Indo-Pacific regional cooperation in the aftermath of the 2004 tsunami. The grouping consists of four countries, Australia, India, Japan and the US. Recently, the United States has been pushing for the formation of a NATO-style alliance, many analysts believe, to contain China’s economic, technological and military advancement. By containing China, the US hopes to remain an uncontested world superpower.Â
The US made attempts to engage more deeply with East Asia through president Barack Obama’s “pivot†policy. The administration of Obama’s successor Donald Trump renamed that policy the “Indo-Pacific Strategy†and tried to forge partnerships among the Asia-Pacific nations. The new US president, Joe Biden, looks to be following in the footprint of his immediate predecessor.Â
This month’s Quad summit was the first in Biden’s tenure, and was also attended by Australian Prime Minister Scott Morrison, Indian Prime Minister Narendra Modi, and Japanese Prime Minister Yoshihide Suga.Â
The joint statement categorically stated, “We will continue to prioritize the role of international law in the maritime domain, particularly as reflected in the United Nations Convention on the Law of the Sea (UNCLOS), and facilitate collaboration, including in maritime security, to meet challenges to the rules-based maritime order in the East and South China Seas.â€
The UNCLOS is the prevailing international treaty that delineates contracting nations’ rights and duties concerning their use of the seas and maritime resources. After about a decade of negotiations, UNCLOS was concluded on December 10, 1982, at Montego Bay, Jamaica.
At the time, the US refused to sign the treaty. It entered force on November 16, 1994, without accession by the United States. Similarly, the Agreement Relating to Implementation of Part XI of the Convention, commonly called the 1994 Agreement, entered force on July 28, 1996, without US ratification.
The US has still not ratified UNCLOS to this day. However, the rest of the Quad member countries, Australia (October 5, 1994), India (June 29, 1995), and Japan (June 20, 1996), ratified it a quarter-century ago.Â
The irony is that even though the US is not a contracting state party of the UNCLOS, it still carries out “freedom of navigation operations†(FONOPs). The US claims that these operations by its navy and air force reinforce internationally recognized rights to unmolested navigation of the seas and access to maritime resources by challenging any claims by any state or non-states parties that violate international laws of the sea.Â
But the United States, which is not a state party to the UNCLOS, does not have the right under international law to use FONOPs to enforce such law and push other countries that are party to that law into opposing another contracting party, China. Nor does the United States have the moral authority to pressure China to comply with that law. It gave up that moral right on July 10, 1982, when its president at the time, Ronald Reagan, refused to sign the convention.
The rule of law or rule-based international order is not a matter of merely preaching to others. It is not a lecture given by a professor of international law. The rule of law must be practiced by the nation that is supposed to be a promoter of the rule of law globally.
If the United States truly wants a free and open Indo-Pacific based on international rules, it must itself adhere strictly to international law and rule-based order. The United States has no right to force China to abide by a treaty that the US itself has never ratified, and trying to form an alliance to that end is even more absurd.
Moreover, the belief by Australian, Indian and Japanese strategists that by forging an alliance with a government that is not a party to UNCLOS, the US, they can get China to comply with the treaty symbolizes the poverty of mindset and foolishness of the Australian, Indian, and Japanese policymakers.
As a non-party of the law of the sea, the US cannot make China abide by the UNCLOS. To make China abide by any global rule, including UNCLOS, the US must itself abide by such global laws. Then and only then can the US persuade other countries to follow international law and oversee a rule-based international order.
So if the US truly wants to hold China accountable and responsible for its behavior in the South China Sea, the first thing the Biden administration must do is ratify the global law of the sea. However, that is a very complicated ask, because the US Senate must endorse any international convention by a two-thirds majority. It is certain that many senators, both Democrats and Republicans, would strongly oppose UNCLOS as they have done in the past.
Second, many US policymakers have a strong opinion that the US can best protect its rights by maintaining a strong navy, not by acceding to UNCLOS. But American exceptionalism and supremacy in every sphere – including the seas – are being seriously challenged by China.
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