BGF’s Discussion: How can the world community force nations to respect and strictly observe the UNCLOS?

Boston Global Forum is deeply concerned over recent events in the Pacific that threaten the peace, security and economic well-being of the region and the world at large. The Framework for Peace and Security in the Pacific has being developed based on accepted principles such as abiding by international law, multilateralism and transparency to avoid conflict.

We are now urging policymakers, and scholars’ insights and ideas regarding current events in the South China Sea, which is the issue of China’s rapid construction activities on the waters of the South China Sea and its announcement of its “nine-dashed-line” claims based on its vaguely-defined notion “historical rights”. As most of experts has said that China’s construction activities could pose direct threat to freedom of navigation and overflight across the South China Sea, threatening not only the territorial claims of other claimant states, but also the national interests of extra-regional powers such as Japan and the United States. The issue that can—through misstep or misunderstanding—result in open and armed conflict.

As we knew UNCLOS is a crucial mechanism to maintain peace and security in the South China Sea. Unfortunately, the United Nations and Arbitral Tribunal seem to lack the power to enforce sanctions and force the countries to respect and comply with UNCLOS in settling disputes.

Boston Global Forum is seeking the answer to these important questions:

  1. How can the world community force nations to respect and strictly observe the UNCLOS?
  2. Who will have the power to punish bad actors once a nation does violate the UNCLOS?

In response to these questions, Professor Richard Rosecrance, Adjunct Professor, Harvard Kennedy School; Research Professor of Political Science, University of California, Los Angeles, said “UNCLOS is basically unenforceable”.

Professor Suzanne Odgen, Member of Editorial Board, Boston Global Forum, Professor of Northeastern University’s Department of Political Science,thought that there is no  way to “force” respect as most international laws are obeyed on the basis of reciprocity: I will obey it if you obey it. As international law is, like most law, subject to the interpretation of the ‘facts,’ moreover, any sort of juridical process can go on for years while the law is still being disobeyed, questioned, or ignored, etc.

In her view, Professor Odgen added:

As the US has never ratified UNCLOS, it is in a difficult position to discuss ‘enforcement’ or punishment. Most disputes in the international community over matters that are codified in international law are today settled—or remain unsettled and ongoing—by relying on arbitration, negotiation, compromise, etc. the costs/ potential costs of military conflict are enormous—to all sides. Further, the US has to weigh the shifting balance of power in Asia, as well as elsewhere throughout the world, before ever considering the use or threat of use of force. The days when the US could count on other countries, even allies, supporting its efforts to ‘discipline’ bad actors in the international system, are gone, or at least going……

Douglas Coulter, visiting Professor in Guanghua School of Management at Peking University, shared another view. According to him, the United States and apparently the western world have not drawn the lessons from the war in Vietnam, the war in Iraq, and the war in Afghanistan, which is that you can’t force countries from the outside.  Changes only are made if they are initiated by the countries themselves.

He also shared his view on recent developments in the South China Sea. In his opinion:

“The worst thing to do is to publicly threaten China over it. In order to soften up China over the South China  sea is to have American Secretaries of Defense visit Mongolia or American Admirals publicly advocate joint country patrols in the South China Sea, or for the United States to encourage Japan to get involved.

The only thing that will work with China is to change America’s fundamental relationship with it and not to continue to keep doing the same thing we have been doing since the Vietnamese War.

One of the biggest sources of friction in East Asia is Japan’s refusal to acknowledge its history in the Second World War.  China lost three times more people in the war than Japan did.  China was occupied.  If Japan was freeing the Chinese from colonial occupation, as the Japanese officially claim, why were the Chinese fighting them?    Think of what would happen if Merkel visited graves of the SS.

If the United States demanded publicly and uncompromisingly that Japan satisfy completely China’s and Korea’s demands concerning Japan’s role and history in the Second World War, I suggest that this would materially change the United States’ relations with China.      Japan could do nothing.   If they want an ally to resist China, where are they going to go, except the United States? Are they going to go to India?

If our relations materially changed with respect to China, I suggest we could get a lot more flexibility in other areas, including the South China Sea, as long as we pursued these privately and not with public pronouncements.

But our chances of this may have been permanently destroyed after Abe’s trip to the United States, where he came away with the store, and this trip will continue haunt us. Concerning China’s claims in the South China Sea, this has been on their maps since the People’s Republic came into being in 1949, and they inherited from the Kuomingdang.    They didn’t invent it.   And presumably the Kuomingdang got it from a much earlier period, the Qing or Ming Dynasties.

One of the most interesting aspects of this dispute, or maybe the least interesting, is that the United States didn’t utter a word about it until around 2006, although there has never been any mystery for years.

The biggest barrier to any easing of the South China Sea issue is the United States, which will continue to browbeat China over it and harden China’s position. The United States, as we have witnessed since the 1960’s, doesn’t know any other approach.

With regard to international laws, since the United States hasn’t signed the Law on the Sea, because there is obviously some clause we don’t want to have to abide by, what international laws are we insisting China respect. The United States itself has a very good record of abiding by international laws, such as the War in Iraq.”

Professor Richard Cooper, Maurits C. Boas Professor of International Economics at Harvard University, added his view concerning the China’s maritime territory claims:

” A recent comprehensive history of the South China Sea can be found in a new book of that title by Bill Hayton, 2014.  According to him, the nine-dashed line was first drawn by a Chinese geographer (with no official position I believe) in 1937.  I can affirm from my own research on the telegraph in China that the Qing dynasty in the 1870s made no claim to any territorial sea: Chinese sovereignty began at the shoreline.”

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(to be continued)