and negotiations with China over the South China Sea issue.17 8. Despite have decisively won the arbitration case, the Philippine government advised its fishermen to avoid fishing areas in the South China Sea, including Scarborough Shoal, to avoid harassment from Chinese authorities.18 industries,21 the U.S. is not yet a party to the Convention. This lack of U.S. participation has been systematically criticized by China22 and has been recognized by the administration as an obstacle to its ability to resolve problems in the South China Sea.23 It is therefore understandable that the Tribunal’s Award has resulted in a renewed call by supporters of UNCLOS to push for Senate advice and consent.24 Although the Award provides Although the Award provides an impetus for U.S. accession to UNCLOS, it could also be used by opponents to the Convention to derail any efforts to obtain Senate action. 9. DoD did not conduct an FON operation in the South China Sea from May 2016 to October 2016,19 even though U.S. defense officials stated that DoD would conduct at least two FON operations in the South China Sea per quarter to “regularly exercise our rights under international law and remind the Chinese and others about our view.”20 The Tribunal’s Award could also potentially undermine the efforts within the US government to become a party to UNCLOS. Despite widespread support within the U.S. government, non-governmental organizations and maritime 17 John Kerry, “Press Availability in Vientiane, Laos,” US Department of State, July 26, 2016, ; John Kerry, “Remarks With Philippines Foreign Secretary Perfecto Yasay,” US Department of State, July 27, 2016, . 18 “Philippines warns fishermen to steer clear of disputed South China Sea,” AFP, August 3, 2016, . 19 Zack Cooper and Bonnie Glaser, “How America Picks Its Next Move in the South China Sea,” The National Interest, May 11, 2016, ; Idrees Ali and Matt Spetalnick, “U.S. warship challenges China’s claims in South China Sea,” Reuters, October 21, 2016, . 20 Andrea Shalal and Idrees Ali, “U.S. Navy plans two or more patrols in South China Sea per quarter,” Reuters, November 2, 2015, . an impetus for U.S. accession, it could also be used by opponents to the Convention to derail any efforts to obtain Senate action. One of the major criticisms of the Convention is that, if the U.S. were to accede to UNCLOS, the compulsory dispute settlement provisions could 21 See, for example, Center for Ocean Law and Policy website , US Department of State website , and Department of the Navy website 22 “Some Americans regard themselves as the defender of maritime governance, but the United States still refuses to ratify the United Nations Convention on the Law of the Sea, 34 years after the document was signed.” See Lu Kang, “Foreign Ministry Spokesperson Lu Kang’s Remarks on Statement by Spokesperson of the US State Department on South China Sea Arbitration,” Ministry of Foreign Affairs, People’s Republic of China July 13, 2016, . 23 Barack Obama, “Remarks by the President at the United States Military Academy Commencement Ceremony,” Speech, Office of the Press Secretary, The White House, May 28, 2014, . 24 Sydney J. Freedberg, Jr., “Law Of The Sea: US In, China Out? Dems Push Ratification,” Breaking Defense, July 12, 2016, ; Dave Majumdar, “Why the United States Needs to Join UNCLOS,” The National Interest, July 12, 2016, ; Ben Cardin, “The South China Sea Is the Reason the United States Must Ratify UNCLOS,” Foreign Policy, July 13, 2016, . South China Sea Lawfare • 211

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