At least Howard French Thinks So. http://foreignpolicy.com/2015/06/05/south-china-sea-dangerous-contest-military-united-states-navy/
HOW FAR WILL THE DRAGON SWIM?
We have been warning that the China Seas (East and South) have the potential for starting WWIII. The quote above is spot on, the world must decide how the international law of the sea is to be determined. The present international law of the sea convention is weakened by the lack of U.S. ratification yet we find ourselves constantly arguing that various provisions of the United Nations Law Of The Sea Convention (UNCLOS) should be applied in this and that controversy. We go right down the line in arguing for application of certain convention provisions in the island disputes of the South China Sea. Yet we have not ratified this convention.
We should first ratify the convention taking specific exception to as few of the provisions as possible. We have not yet ratified it though it codified many U.S. / British long held positions as codified international law. There were some provisions that appear to somewhat restrict our naval movements under certain circumstances , but even our U.S. naval leadership more recently have taken a position in favor of adoption of the convention. If UNCLOS becomes more widely adopted it takes on the power of codified international law and makes China's views of a closed sea much more difficult to legally defend.
China is acting like a thug state in all of this, but simultaneously and selectively is entering international legal forums attempting to sell their idea of a closed sea. The United States already urges sympathetic states in the Western Pacific to take their cases against China to the Law of the Sea tribunal, like the Philippines has done. But we have not done anything to underpin the present consensus in maritime international law, a consensus that bodes well for the Philippines and Vietnam, and our commerce moving through the area. The article cited in this post notes; " If China continues to build artificial islands and equip them militarily, it may be necessary to steam into waters claimed by Beijing on dubious grounds." Fortunately as we published yesterday, (June 17, 2015) the Chinese have recently ceased building artificial islands in the region as a sort of olive branch to neighboring states, but they continue to fortify and militarize the existing 2,000 plus acres they have already built. Calling China out legally allows a range of smaller countries to take a stand and shipping interests including the U.S., to stand on a rules-based international order rather than managing the situation solely as a dangerous contest of military might. We appreciated the appearance of Mr.French's article since we are not only largely in agreement but have in fact been advocating the same thing for nearly three years in these pages. Nice that a conventional media outlet is publishing along the same lines on the issue.