Respecting the Waters

Jeremy Murray reviews three books on how the United States’ failure to ratify UNCLOS threatens global maritime order.

By Jeremy MurrayJanuary 13, 2025

• Politics

• Law

ABOUT A DECADE AGO, Beijing was in the early phase of constructing new land formations in the South China Sea. Dredging soil from the seabed, it created several “islands” that now feature military installations. In Beijing’s interpretation, these serve to further legitimize China’s expansive and exclusive maritime claims over waterways that move trillions of dollars of cargo every year. Ten years ago, this activity led to renewed scholarly attention on China’s disputed claims, and for some, a sense that the region was the world’s number-one powder keg. But the popular and political urgency waned amid US domestic political upheavals and other conflicts in Eastern Europe and the Middle East. Following the Obama administration’s “pivot to East Asia” came a trend toward isolationism and “trade war” in the first Trump administration. But the region remains volatile, and low-level incidents between civilian and military vessels are common and well-documented, including American “freedom of navigation” missions (FONOPs); dangerous maneuvers by Chinese and other vessels that require evasive measures; the ramming of vessels, along with harassment such as the use of firehoses at close range; and the detention of foreign nationals considered to be violating maritime sovereignty. With a second Trump administration looming, the future of the region is uncertain.

Several recent books by leading experts have sought to recenter the urgency of managing potential conflict. These scholars trumpet the stabilizing potential of the international framework of the United Nations Convention on the Law of the Sea (UNCLOS), and the long-stymied efforts to ratify it in Washington, blocked on the grounds that it cedes seabed sovereignty to international regulation. In order to amplify the urgency of joining UNCLOS, experts on the region point to several more sensational topics. For one, they point to the Heritage Foundation as one of the sole institutional opponents of the United States joining the framework. Heritage boasts an outsize influence on the incoming Trump administration, with an isolationist “America First” foreign policy in its “Project 2025.” For another, experts note the prospect of the US stumbling into what should be reckoned as a world-ending conflict with China over maritime boundary disputes. And finally, experts remind us of lost revenues for American companies and tax coffers to the tune of trillions of dollars, left on the ocean floor. These resources, according to scholars like John Norton Moore, will only be pursued in costly extractions by corporate entities if they have the certainty of resource rights that would come with ratifying UNCLOS.

Conversations on the law of the sea are led by Moore, former ambassador in the Reagan administration and now emeritus professor in the University of Virginia School of Law. Moore’s recent book The Struggle for Law in the Oceans: How an Isolationist Narrative Betrays America (2023) lays out the history of UNCLOS and how a very small group of isolationist holdouts in the US Senate and the Heritage Foundation have successfully prevented its ratification by the United States, which would require a two-thirds vote in the Senate for “advice and consent.” That vote has been blocked in spite of extraordinary accommodations made for American accession to the framework, including veto power and a permanent seat on relevant bodies.

There has also been overwhelming support for UNCLOS ratification among American military, business, and political leadership, for the stability and wealth that it would bring. This was demonstrated most recently in a series of exhaustive 2012 Senate Foreign Relations Committee Hearings, just as Beijing’s interests and capacities in the region were becoming increasingly clear. Moore was among the most pivotal figures in UNCLOS’s drafting, amendment, and endorsement through the 1970s and ’80s, though his long-suffering advocacy did not and has not yet borne fruit. He has served in several key roles through this period, such as chair of the National Security Council Interagency Task Force on the Law of the Sea, and ambassador and Deputy Special Representative of the President (Reagan) for the Law of the Sea Conference. This and other related positions made him one of the most important officials in the drafting of the UNCLOS framework, and he remains a leading global expert on it and numerous related subjects such as piracy and high seas governance.

Moore is that elusive species of American: an unflappable rock-ribbed conservative voice who has been left behind by a Republican Party that favors national arson over the national interest. Of course, this did not start with Trump, and Moore reminds us of the ways in which US senators like Jim DeMint and Jim Inhofe exercised their influence through disingenuous climate denialism, isolationism, and obstructionism long before Trump began his racist “birther” takeover of the party following the election of the first person of color to the White House, President Barack Obama.

In the pages of Struggle, Moore seems baffled by the unapologetically sloppy thinking behind the isolationism and reactionary nativism that he encounters in his own party. The persistence of US isolationist opposition to UNCLOS, in the face of utter refutation of their arguments on every point, seems to read as a kind of toddler’s tantrum in Moore’s paternal view. He draws some illuminating if brief parallels between the current isolationism of the Heritage Foundation, on one hand, and on the other, the nativist and anti-immigrant strain of the 19th-century “Know Nothing” Party, the “Irreconcilables” who opposed the League of Nations, and the proponents of Washington’s neutrality and noninvolvement in fighting fascism in World War II. While these are not perfect analogies, Moore could go further in drawing out the relevance in these rhyming lines in the all-American anthem of myopic snake-oil populism.

Isaac B. Kardon’s China’s Law of the Sea: The New Rules of Maritime Order (2023) expands on Moore’s notes that the United States is derelict in its failure to ratify UNCLOS and participate in the global legal processes that will shape the frameworks of the future and indeed any rules-based order. Kardon, a senior fellow for China studies at the Carnegie Endowment for International Peace, shows how Beijing is able to assert its ascendant power in the surrounding seas through claims of sovereignty in ways that violate or challenge the widely accepted guidelines of UNCLOS on things like exclusive economic zones and the interpretation of land masses and their assigned territorial waters. Absent full US participation in and vigorous endorsement of UNCLOS, Beijing has been allowed to articulate its own law of the sea, which naturally prioritizes its own sovereignty claims, based on loose historical interpretations of expansive regional waters. Sovereign supremacy, at the core of Beijing’s law of the sea or Moscow’s view of its western border, is a revived kind of realpolitik, through which muscular assertions of regional dominance must be accepted while the legal claims of smaller states, made in keeping with UNCLOS, are ignored or dealt with bilaterally and snuffed out one by one. Indeed, UNCLOS was conceived of in part as an equitable way to respect the regional waters of smaller countries in the midst of the first Cold War.

In Gregory Poling’s On Dangerous Ground: America’s Century in the South China Sea (2022), the author urges a view of the Sea beyond the rivalry of Washington and Beijing. Poling, a senior fellow at the Center for Strategic and International Studies, calls for enhanced diplomatic engagement with allies and international frameworks, especially in the Pacific, as an essential means of securing a peaceful future and countering a global order shaped by China. Notably, Beijing has ratified UNCLOS but its actions have been found to violate the framework in international arbitration. While Poling also calls for Washington to join UNCLOS, he recognizes the dim prospects of this happening. He wrote to me,

The Republican Party has moved far to the right since the last attempt in 2012 and it is difficult to imagine a Democratic president finding the votes for ratification. The only path might be via a Republican president pushing it as part of a China strategy, but that would get messy given the party’s ideological opposition to the United Nations.

Indeed, the isolationism expressed in the Republican Party platform and Heritage’s Project 2025 reflects an extreme skepticism of American participation in almost any international conventions that are not a low-risk transactional win for Washington’s coffers. One of Project 2025’s authors, Steven Groves, assured me that Heritage has never favored withdrawing from the United Nations, which suggests that for now, even Heritage and Trump have a bottom line to the extremes of their transactional diplomacy and self-serving isolationism.

Other more seasoned voices are wary of the loss of global influence and credibility in the face of such obstructionism to commonsense global frameworks, especially in relation to China’s increasingly assertive role in the South China Sea. “It’s hard to accuse the Chinese of violating the UNCLOS, or even customary international law relating to the sea, when the US is not a party,” John B. Bellinger III, a former legal adviser to the State Department and the National Security Council under George W. Bush, told me. “Similarly, it is difficult for the US to claim the vast resources on our extended continental shelf when we have no treaty-based rights under the UNCLOS.” In this, he was referring to the reluctance of US corporations to explore the vast potential wealth of seabed mining opportunities, absent the legal assurances that UNCLOS accession would bring.

Critics of UNCLOS fantasize about such extreme actions as withdrawing the United States from as many United Nations entities as possible. Now mainstreamed within Republican Party circles, these voices have successfully obstructed not only UNCLOS ratification but also US participation in a range of international agreements. Washington remains outside of many commonsense frameworks that would bolster its credibility and make the world safer, such as the International Criminal Court. A small but influential group of lobbyists and think tanks thus obstructs our government’s participation in these and other frameworks, perpetuating the suffering of victims of land mines, cluster bombs, child marriage, and sex trafficking.

The disgraced but vocal Reagan official Oliver North is predictably among the opponents to UNCLOS, and it is interesting to see Moore take his former colleague to task in The Struggle for Law in the Oceans. Moore cites about 20 opponents to UNCLOS, and in his illuminating ninth chapter, he takes them on one by one, quotes their strongest arguments against UNCLOS, and refutes them with finality. Accompanying North are some rather colorful and surprising figures, including the anti-feminist Phyllis Schlafly and the conspiracy fabulist and longtime Republican liability Frank Gaffney Jr., whose anticommunist machinations and dirty tricks were too zealous even for the Reagan administration. The thread that connects North to Schlafly to Gaffney leads eventually through the Heritage Foundation, and to the current Trump Republican Party.

More thoughtful observers, like Australian National University political scientist Hugh White, are skeptical about the prospect and even the value of US ratification of UNCLOS. White told me that it would leave the grand strategic rivalry between the US and China—the existential matter requiring resolution in the Pacific—unchanged. He argues that only the United States relinquishing its ambition to Asian primacy will resolve that contest. Meanwhile, he notes that US congressional chaos being the reason for the failure to ratify UNCLOS is not at all reassuring beyond the Beltway, not to mention among Pacific allies. Ultimately, though, White noted, “there is little hope of convincing the Global South to support America’s vision of a global rules-based order against China’s alternative unless UNCLOS is ratified, because only then will anyone believe that the US-led order will indeed be rules-based, not power-based.” Here White agrees with Poling on the urgency of deepening ties with regional allies and amplifying the voices of regional stakeholders beyond just Beijing and Washington.

While White and other experts are duly skeptical of the prospects of ratification, accession to UNCLOS would constitute a significant step toward a sustainable American role in the world. From Ukraine to Israel and Gaza, to the South China Sea, every active or potential conflict is a new opportunity for the US to either endorse or weaken the rules-based order. The unrivaled destructive power of Washington’s military is a force, as White notes, for either the rules-based order or the power-based order. The credibility and sustainability of this order and the United States’ place in it will rely on commonsense action like ratifying UNCLOS. Isolationism will cede regional influence to Beijing, and it will cede domestic influence to the dangerous and myopic heritage of nativism that continues to shape a substantial part of American culture and politics.