Saturday, September 1, 2007

China can use LOST to counter the U.S.

Although the People’s Republic of China is a state party to the Law of the Sea Treaty, it has claimed maritime jurisdiction far beyond what the Treaty specifically authorizes. China maintains it is entitled to sovereignty over the entire South China Sea – a critical international sea lane that extends over 3.5 million square kilometers.

Common international practice codified by LOST grants territorial sovereignty to waters extending 12 miles beyond a country’s coastline. The Treaty also recognizes Exclusive Economic Zones (EEZs) extending 200 miles offshore within which the littoral state is able to exercise more limited rights.

LOST recognizes, however, that archipelagic countries and nations with indented coastlines may find it more difficult to draw these boundaries. The Treaty, therefore, allows such countries to draw straight boundary lines across complex coastal features and islands.

China – having a complex, subtly indented coastline and numerous islands throughout the South China Sea – has interpreted LOST to extend China’s maritime territorial borders more than a thousand miles from mainland China. Additionally, when China signed LOST in 1996, it chose to combine the rights of territorial waters under LOST with the rights of EEZs, thereby claiming territorial sovereignty throughout its entire EEZ.

LOST also affords countries the right to establish settlements on any island within their prescribed EEZ, including what amount to man-made islands. China has used this latitude to create, occupy and fortify various artificial atolls, often near rich deposits of natural resources in the adjacent seabeds. Typically, it then declares that LOST entitles them to protected maritime territorial and economic jurisdiction of the region.

The Proponents’ Claims:

LOST applies stable and predictable rules to the uses of the oceans. The best way for the United States to counter excessive off-shore claims by littoral states like China is by having “a seat at the table” – using the rights and mechanisms available to states parties to counter such claims.

The Facts:

  • China’s aggressive use of LOST’s provisions to justify its outlandish claims to the South China Sea underscores the extent to which – far from being a guarantor of “stability” pursuant to “predictable” rules – the Treaty lends itself to manipulation at the expense of the interests of nations like the United States.

  • Lacking a veto, an American “seat at the table” will not ensure that the United States can prevent countries like China from acting on the basis of LOST’s lofty but somewhat ambiguous language. It will, however, ensure that America must accede to whatever judgments the majority of member nations adopt – the outcome of which is highly susceptible to Chinese bribes and extortion.

  • The same would be true of decisions handed down by LOST’s rigged dispute resolution mechanisms should those be used to challenge China’s efforts effectively to transform the South China Sea into a massive, sovereign Chinese lake. Of course, the PRC’s sovereignty over the South China Sea would also make any natural resources in that area – including minerals, oil and gas – property of China.

  • A South China Sea deemed to be sovereign Chinese territory would also: have direct implications for the strategic mobility of American armed forces; impair the United States’ ability to come to the aid of its democratic allies in East Asia and the Western Pacific; and could subject sea lanes of communications vital for the economies of the United States and its allies to subtle Chinese pressure or more overt interference.

  • Under these circumstances, the United States has no choice but to contest China’s overreaching claims to the South China Sea. It does have a choice, however, about how best to do that. Given the impossibility, as a practical matter, of securing a satisfactory outcome if it is a state party to LOST, the United States would be well-advised to do work toward that end while remaining outside the Treaty.

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