It’s ironic that the country most vocal in calling on China to abide by the ruling of the Permanent Court of Arbitration (PCA) in the case brought by the Philippines under the UN Convention on the Law of the Sea (UNCLOS) itself refuses to sign on to the convention. Adding to the irony is the fact that the court’s ruling, met by our China-bashers with unconcealed glee, makes it even more unlikely that we will ratify the convention.
While we are not a signatory to the convention, we assert that we support its provisions. Daniel J. Kritenbrink, Senior Director for Asian Affairs at the National Security Council and introduced as “the top Asia advisor to President Obama” at an event in Washington the day the court’s ruling was announced, stated “We are encouraging claimants to clarify their maritime claims and peacefully manage and resolve their disputes in a manner consistent with the international law of the sea as reflected in the 1982 Convention on the Law of the Sea.”
But one clarification the PCA made in its ruling Mr. Kritenbrink is probably not all that happy about: the Court’s clarification as to what constitutes an island, which is habitable, and what is merely a rock, which is not. A 200-mile Exclusive Economic Zone (EEZ) can be claimed around an island but not a rock. In finding all the islets in the Spratly Islands to be rocks, even the largest one Itu Aba (claimed by Taiwan), it greatly restricts claims which can be made for EEZs not only in the South China Sea but around the world.
And there’s the rub. The United States claim to Exclusive Economic Zones is the largest in the world, our watery EEZs being larger in area than the land area of the 50 states. In the Pacific, the EEZs we have declared around the “islands” of Howland, Baker, Johnston, Jarvis, Palmyra, and Wake alone cover more square miles than the EEZs off our Atlantic and Pacific coasts combined (excluding Hawaii and Alaska). A number of these EEZs would be classified as rocks under UNCLOS, as would many of the EEZs around awash beachfront property in the Hawaiian Islands chain – from French Frigate Shoals past Midway to Kure Atoll.
Most of these Pacific EEZs are centered on barely-above-water islets which were greatly expanded to accommodate airstrips back in the days when planes had to island-hop across the Pacific. The fact that they are now much larger does not mean they are no longer rocks, as the PCA ruled it was a feature’s original, not post-reclamation, condition which determines it classification. To determine a feature’s natural state in the Philippines-China case, the PCA made an exhaustive search of the historical record (I myself, through an hour or so of internet digging, found a US-government hydrological survey from the 1930s that described a reef around which we claim a 200-mile EEZ as entirely underwater even at low tide, hence not meriting a claim to even its 12-mile territorial waters, much less an EEZ).
If the United States were true to Mr. Kritenbrink’s call for other nations “to clarify their maritime claims”, it would unilaterally relinquish claims to these EEZs, which are clearly not justified under UNCLOS, without waiting to be dragged into court. Such a principled act would demonstrate our commitment to the “global, rules-based order that”, according to Mr. Kritenbrink, “we seek to uphold”. It would prove his honesty in saying we are “focused on upholding key principles and seeing that they apply to all countries irrespective of their size or strength.” Beside giving up our own EEZs, we could further enhance our reputation by encouraging our ally Japan to relinquish its claim to EEZs around Okinotorishima and Minamitorishima, two archetypical rocks far out in the Pacific.
We might go further and engage in what Mr. Kritenbrink calls “setting standards for behavior in disputed areas” by going beyond the issue of EEZs to the question of sovereignty in regard to territories we claim which are also claimed by others. Navassa Island, far from our shores but just off the coast of Haiti, is a case in point. We base our claim on the Guano Islands Act of 1857, which authorized American sea captains who came upon unclaimed, guano-covered islands to claim them in the name of the United States. Generally, we relinquished possession of such islands once the bird poop had been mined, but we cling to Navassa to this day. With regard to China’s infamous Nine-Dash Line, the PCA ruled that “the entry into force of the Convention had the effect of superseding any claim by China to historic rights”; i.e., considerations like the reach of the continental shelf and geographic proximity supersede history-based claims. By analogy, this makes Haiti’s claim to Navassa considerably stronger than our own. A similar situation exists with regard to Wake Island which is claimed by the Marshall Islands, the nearest inhabited land.
We might also settle our longstanding dispute with Canada over Machias Seal Island, a dot in the Gulf of Maine that we and Canada both claim (the Canadians keep two lonely coast guardsmen on the island to tend to an anachronistic, manned lighthouse to affirm their sovereignty). If two countries with such a common heritage and long-standing peaceful relations cannot resolve a dispute over an island of utter insignificance except to a few lobstermen, what hope is there for desperately poor countries to resolve disputes over territories potentially rich in oil and gas peacefully?
But don’t wait with bated breath for the United States to relinquish any of its EEZs. The country which prides itself on possessing a “Manifest Destiny” – once continental, now global – does not cede territory readily, even when that territory is a watery expanse. Nor is the US likely to cede contested islands to pipsqueaks like Haiti and the Marshall Islands (Ironically, we love to portray the countries contending with China in the South China Seas as a David-and-Goliath story, but compared to our opponents they look like peer rivals). And don’t bet on the USA ratifying the Convention on the Law of the Sea anytime soon, despite a call by a handful of congressmen in the wake of the PCA decision for the Senate (the body empowered under the US Constitution to “provide Advice and Consent” on treaties) to speed ratification.
Which brings us to our last and most sobering irony. While the PCA did not rule on the issue of sovereignty over the hotly contested Scarborough Shoals, the fact they lie on the Philippine’s continental shelf argues for many of our swashbucklers that they belong to the Philippines and hence fall under our mutual defense pact with that country. Were the Philippines to challenge China’s control of the shoals and that action resulted in violence, we might feel compelled to come to the aid of our ally, touching off what could become Armageddon, the final battle, ironically sparked by one country’s demand that another country abide by a convention to which it itself does not subscribe. The ultimate irony: steeped in hypocrisy, drenched in platitudes, and drowning in blood.