Customary international law is no longer sufficient to protect U.S. interests
Opponents of UNCLOS claim that the United States should not become a party because the United States already enjoys the benefits of UNCLOS through customary law and, therefore, should not unnecessarily incur the treaty's burdens. However, this ignores the fact that customary law can change and can also be influenced by how parties to UNCLOS decide to interpret its provisions.
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Each year the United States challenges dozens of states for asserting legal rights that impede freedom of the seas. Iran, North Korea, and China have all challenged the U.S. navy’s free passage through their EEZ. By codifying the right to pass freely through the exclusive economic zone of foreign states without restrictions on cargo or formation, the Law of the Sea strengthens America’s ability to project power.
But these rights are already recognized as customary international law. What does the Convention add? For one, it makes these rights stronger. Written treaties are perceived as more powerful than customary laws. By signing the Convention, the United States gives added weight and stability to customary rights, and pushes recalcitrant states to respect navigational freedoms.
More importantly, the Convention creates a forum to change navigational rights. It is possible, though unlikely, that future deliberations under the Convention might create rules that undermine freedom of navigation. If the United States fails to ratify the Convention, it will lose the opportunity to defend these rights. The problem is not that other states can stop the U.S. Navy from sailing where they want to sail. The problem is that they can raise the costs of doing so. If a nation decides to forbid U.S. ships their legal right to pass, America could use force to assert our right. But, realistically, it will be more likely to seek legal remedy. Signing the Convention lowers the cost of projecting power.
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UNCLOS opponents are correct on at least one point. The customary international law of the sea – at least as generally understood today – is consistent with U.S. national security interests. The U.S. government has said as much.15 However, in relying on the apparent harmony between UNCLOS and customary law as rationale for the U.S. to remain outside the treaty, opponents have failed to address a critical question: What if UNCLOS or customary law changes? Is it possible that today’s favorable legal environment could evolve adversely to U.S. interests?
The question is more than speculative. Through the years, a variety of nations have advanced legal theories inconsistent with critical U.S. ocean policy interests.16 Historically, these nations have lacked the will or ability to affect meaningful change in the international law of the sea. Today, however, this dynamic is changing.
Consider, for example, U.S. military operations in the off-shore area known as the EEZ, as codified by UNCLOS, comprising the waters beyond a nation’s territorial sea extending a maximum of 200 nautical miles from the coast.17 For years, the U.S. has consistently maintained the right under customary international law to conduct military activities in coastal state EEZs.18 Over the past decade, however, the People’s Republic of China has initiated confrontations with U.S. ships and aircraft operating in the Chinese-claimed EEZ and its associated airspace. The Chinese have boldly rejected long-standing U.S. positions on customary international law and also challenged conventional interpretations of critical UNCLOS provisions.
Putting aside for now the potential consequences of blurring the distinction between broadly ratified convention regimes and customary law for other subject areas of concern (e.g., the 1977 Additional Protocols to the Geneva Conventions and the Rome Statute for the ICC), one might reasonably ask what response such a position might invite from other states that are now parties to the LOSC. Could they too circumvent the LOSC’s ban on reservations and avoid its compulsory dispute settlement provisions by renouncing the LOSC in favor of customary law? Even if empirically sound, the argument that nothing is to be gained by the United States in ratifying the LOSC, because all of the best parts either codified existing customary law when the Convention was opened for signature or later (i.e., between 1982 and 1994, when it entered into force) ripened into customary law, must be tested against the fallacy of composition. If that is true for the U.S., wouldn’t it also be true for the 160+ nations that are already parties to the LOSC? In short, do regimes founded on rules of customary law better serve the national and shared interests than those founded on treaties?
The common understanding of the fallacy of composition is that what might be true for the one is not necessarily true for the many. If one person in a crowd stands on tiptoes to see better he might be better off, but if everyone does it no one is better off. The economist John Maynard Keynes referred to the analogous “paradox of thrift,” by which he meant that if one person saves a substantial portion of her earnings she may be better off, but if everyone saved as much it could lead to a recession.
The Convention reduces, but doesn’t wholly eliminate, the indeterminacy inherent in customary law. The Convention also provides greater stability and predictability. Here it should be noted that the LOS Convention’s articles can only be amended through an elaborate process that, by design, provides the kind of stability the U.S. has long sought in the maritime domain. By contrast, customary law rules evolve by the practice of nations asserting, acceding to or persistently objecting to new norms, thus introducing unwelcome uncertainty into the nation’s maritime affairs. Moreover, as Edwin Williamson, President George H.W. Bush’s State Department Legal Advisor noted, the history of customary international law “reflects a steady deterioration of the freedom of the seas to the detriment of the essential rights of maritime nations, such as the U.S.”
Those who believe the costs of ratification outweigh the benefits, because most of the benefits are already provided by customary law, might want to consider the global state of affairs that would unfold if the 160+ nations that are already a party to the Convention—including the critical straits states—chose to follow the U.S. lead and eschew adherence to a meticulously drafted convention in favor of malleable customary law rules. While the Convention’s 320 articles and 9 annexes are not always a model of precision, one can certainly question whether the Convention ambiguities the opponents point to are any clearer under the corresponding customary law and whether rule stability is better served by a conventional regime or the practice of 160+ states.
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There is at least a germ of truth in this argument. The United States and its maritime activities are functioning reasonably well under the customary regime of the law of the sea. Most of the Convention is indeed a codification of customary international law. President Reagan's 1982 statements acknowledged this and pledged that the United States would abide by its rules.41 But customary law does not provide the precision and detail of a written document. It may establish a principle, but its content may remain imprecise, subject to a range of interpretations. With respect to the exclusive economic zone (EEZ), for example, it is generally conceded today that the principle of the zone has become a part of customary international law. But what about its content? The details are contained in a set of articles codifying a series of compromises worked out in meticulous detail in the negotiations leading up to the signing of the Convention. The rules for determining the allowable catch of the living resources of the EEZ, the determination of the coastal State's capacity to harvest them, the determination of the allowable catch by other States and the rules governing the coastal State's establishing of terms and conditions for foreign fishermen in their EEZs are laid out in detail.42
Customary rules are fuzzy around the edges and may not be recognized as binding by an opposing State. The "jurisdiction creep," which continued after the 1958 and 1960 First and Second UN Conferences on the Law of the Sea, illustrated the futility of relying on customary law to protect our vital security interests. Only a written document can provide the certainty and stability required by our governmental agencies and private maritime enterprises. And in any dispute with a foreign State to secure its compliance with the rules set forth in the Convention, arguments based on a written agreement rather than an asserted principle of customary international law would be much more effective.
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Rightly so, opponents point out that over the past 30 years the consequences of remaining a non-party have been negligible, especially with respect to national security.33 Unfortunately, this in no way guarantees similar results in the future.
Although status quo advocates frequently acknowledge that the United States is already bound by the convention through customary international law and President Reagan’s 1983 Ocean Policy, this isn’t the same as being a party to the convention.34 Furthermore, this is almost circular logic to show that the United States can exploit the convention’s customary law status to receive protection while still operating as a non-party. Such is the case with submissions to the Commission on the Limits of the Continental Shelf (CLCS), economic security within the U.S. exclusive economic zone (EEZ), deep-seabed mining, and freedom of navigation on the high seas.35
This practice, however, is a slippery slope because, “customary law does not provide the precision and detail of a written document. It may establish a principle, but its content may remain imprecise, subject to a range of interpretations.”36 Taking this a step beyond disagreement over interpretations, customary law can and will change and as the U.S. Navy Judge Advocate Corps (JAG) asserts, “relying on customary international law as the basis for...rights and freedoms is an unwise and unnecessary risk.”37
It is not too late to accede to the convention, and unlike opponents and status quo advocates would have the public believe, there are still good reasons to take the next step and lock into the convention while conditions remain favorable to U.S. interests.
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In addition, as you know, customary international law depends in part on State practice and is subject to change over time. This is less so in the case of treaty or convention-based international law, which comes from written and agreed upon terms and conditions that are contained in such treaties or conventions. Ironically, by not being a party to the Convention and relying on customary international law, our rights within the maritime domain are less well defined than the rights enjoyed by virtually all of the other nations within the PACOM AOR, and around the world with over 160 Nations as parties. Moreover, by remaining outside the Convention, we leave ourselves potentially in a situation where other nations feel they can ignore the Convention’s provisions when dealing with the United States, in favor of what they may view as less clear and more subjective obligations that may exist in customary international law.
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LOSC critics often argue that the treaty’s navigational provisions are redundant given that countries – including the United States – comply with customary international law. However, as navies around the world modernize, states may seek to redefine or reinterpret customary international law in ways that directly conflict with U.S. inter- ests, including freedom of navigation. Ratification will help the United States counter efforts by rising powers seeking to reshape the rules that have been so beneficial to the global economy and to U.S. security. China, for example, seeks to alter customary international law and long-held interpretations of LOSC in ways that will affect operations of the United States as well as those of many of its allies and partners. Some U.S. partners and allies share China’s view on some of these issues. Thailand, for example, has adopted China’s view that foreign navies must have consent of the coastal state before conducting military exercises in its Exclusive Economic Zone (EEZ), a view that runs counter to traditional interpretation of the treaty.10 LOSC provides a legitimate and recognized framework for adjudicating disagreements that will enable the United States to sustain access to the global commons.
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Opponents also contend that accession is basically unnecessary for the United States to enjoy the benefits of the Convention. On this view, we get the benefit of the rest of the world treating the Convention’s provisions as customary international law without having to sign up ourselves. And, the argument goes, if there are any deficiencies in our legal rights, the U.S. Navy can make it up through force or the threat of force. So why join the Convention and subject ourselves to, for example, third-party dispute settlement?
This argument misses some key points:
First, asserting customary international law does not secure all the benefits of the Convention for us. For example, as a non-party, we do not have access to the Continental Shelf Commission and cannot nominate nationals to sit on it.
Second, relying on customary law does not guarantee that even the benefits we do currently enjoy are secure over the long term. Customary law is not the most solid basis upon which to protect and assert U.S. national security and economic rights. It is not universally accepted and changes over time based on State practice. We therefore cannot assume that customary law will always continue to mirror the Convention, and we need to lock in the Convention’s rights as a matter of treaty law. As Admiral Mullen testified when he was Vice Chief of Naval Operations, “[it is too risky to continue relying upon unwritten customary international law as the primary legal basis to support U.S. military operations.” One irony of this debate is that some of the opponents of the Convention are the same people who most question the viability of customary international law.
Third, to obtain financing and insurance and avoid litigation risk, U.S. companies want the legal certainty that would be secured through the Convention’s procedures in order to engage in oil, gas, and mineral extraction on our extended continental shelf. So, while it may be true that the Navy will continue to exercise navigational rights with or without the Convention, U.S. companies are reluctant to begin costly exploration and extraction activities without the benefit of the Convention.
Fourth, military force is too blunt an instrument to protect our asserted customary international law rights, especially our economic rights. It is simply unrealistic and potentially dangerous to rely solely on the Navy to ultimately secure the benefits of the Convention. The Navy itself has made clear that treaty- based rights are one of the tools it needs in its arsenal.