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US bans Marine scientific research in its waters without consent

USS Gabrielle Giffords (LCS 10), top, conducts routine operations in the vicinity of the Chinese vessel Hai Yang Di Zhi 4 Hao, July 1, 2020. (U.S. Navy photo by Mass Communication Specialist 2nd Class Brenton Poyser/Flickr)
September 17, 2020

This article was originally published by Radio Free Asia and is reprinted with permission.

The United States has updated its policy on marine scientific research, requiring foreign ships to request permission before entering U.S. waters. It is the latest step by Washington to align U.S. law with the United Nations Convention on the Law of the Sea as it seeks to champion a rules-based order despite criticism from China for not ratifying the convention.

The U.S. State Department published a notice Wednesday that foreign research vessels require advance permission from the U.S. government before they can enter and operate within the United States’ exclusive economic zone (EEZ) or continental shelf. The EEZ extends 200 nautical miles from the shore of any U.S. territory.

“As a research nation, the United States recognizes the importance of [marine scientific research] and its valuable contributions to society, and we will continue to facilitate [marine scientific research] consent,” the State Department said in a release. “The change in policy is consistent with international law as reflected in the Law of the Sea Convention and with the practice of other coastal states and protects American citizens’ interests.”

It is unclear why the policy has been changed now, but it follows increased international scrutiny on survey and research activity in disputed waters, especially in areas like the South China Sea – a zone of growing contention between the U.S. and China.

Washington accuses Beijing of violating international law by claiming nearly the entirety of that sea on the basis of so-called “historic rights,” despite the overlapping claims of its neighbors in Southeast Asia.

China has often hit back at U.S. criticism of Chinese conduct in the South China Sea by pointing out the U.S. Senate has not ratified the United Nations Convention on the Law of the Sea, or UNCLOS, and is thus not a member of the convention, whereas China is.

Greg Poling, a senior fellow for Southeast Asia at the Washington, D.C.-based Center for Strategic and International Studies, said the U.S. policy shift was a sign of it putting its domestic laws further in line with UNCLOS.

Poling noted that during the years-long negotiations over the final text of UNCLOS, which was completed in 1982, the U.S. actually fought those parts of the convention that required permission in advance before any country performed marine scientific research in the waters of another.

“The U.S. believed that marine science outside the territorial sea should be unfettered,” he said. The territorial sea refers to the 12 nautical mile boundary off a nation’s shores. “This was reflective of the pretty substantial voice that marine scientists were given in the U.S. negotiating team and the interagency taskforce that coordinated U.S. law of the sea policy.”

The U.S. ultimately lost that argument, but never ratified UNCLOS anyway.

Constant encroachments

China operates the largest fleet of government-owned research and survey vessels in the world, and has stoked diplomatic tensions by regularly sending ships into the EEZs of neighboring Southeast Asian nations.

The deployment of two such survey ships at Reed Bank, a submerged feature in the South China Sea disputed between China and the Philippines, prompted the Philippines to file a diplomatic protest to Beijing in mid-August. Ship-tracking data shows that despite this protest, China’s research fleet still regularly intrudes into Philippine waters.

Occasionally, China’s survey ships have traveled within 30 nautical miles of U.S. territories in the Pacific, such as Guam and the Northern Mariana Islands, according to a report by the Asia Maritime Transparency Initiative.

However, such activities by China are not necessarily forbidden under the new policy.

According to the U.S. Office of Ocean and Polar Affairs, marine scientific research only includes “those activities undertaken in the ocean to expand knowledge of the marine environment and its processes.”

Hydrographic surveys – including those for military purposes — and resource exploration, which China’s research fleet is known for, are instead considered “marine data collection,” and thus are not affected under the updated policy.

Rather, it points to a broader shift and closer embrace of provisions of UNCLOS by Washington.

US change of stance

The U.S. formally changed its stance on maritime claims in the South China Sea in early July, aligning its position with that of a landmark 2016 arbitration award from a case brought by the Philippines against China that decided China’s claims to the disputed waters were inconsistent with UNCLOS.

Secretary of State Mike Pompeo underscored that position in a speech last Friday to Association of Southeast Asians (ASEAN), which had published a joint communique stressing the importance of UNCLOS in guiding behavior and settling disputes in the South China Sea a day earlier.

Poling believes the time is ripe for the U.S. to take the bigger step of ratifying UNCLOS, but concedes the chances of that happening are poor, short of major change in the domestic political landscape in the U.S. Many Republican lawmakers, in particular, consider accession to such conventions an infringement of national sovereignty.

“It is definitely time for the U.S. to ratify UNCLOS,” Poling said. “But it is unlikely without a Democratic majority in the Senate and a concerted push from the White House. A loud wing of the Republican Party just isn’t interested in something with the word ‘United Nations’ attached to it, no matter how important for US national interests,” he said.