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.
Admiral Clark's statement indicates that becoming a party to UNCLOS will help solidify United States rights that now exist only in customary international law.95 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.96 however, ignores the fact that customary law can change and can also be influenced by how parties to UNCLOS decide to interpret its provisions.97 If the United States is not a party, it will have no say as to how the law develops.98 By becoming a party to UNCLOS, the United States will be able to ensure that the law of sea develops in congruence with its national security and other interests.99
First, customary international law is, by its very definition, a fluid and changing concept. Vague on details, it is a constantly evolving process created by claim and counterclaim. As a result, there is much less agreement on the details of the customary Law of the Sea. Therefore, customary international law does not provide the kind of stability and predictability that we need for an uncertain political landscape. By contrast, the Convention locks in the rules that promote maximum maritime flexibility while at the same time ensures that coastal state interests are accommodated. This balance between maritime and coastal interests enhances the Conven- tion’s long term viability as well as its widespread acceptability among diverse inter- est groups. In short, the Convention will foster the legal stability that the United States and the rest of the international community has sought for so long.
The end of the Cold War has not changed the fact that many of our economic, political, and military interests are located far away from American shores. Recent events in Haiti, the Persian Gulf, the former Yugoslavia, Somalia, and Rwanda serve as important reminders that we still live in an uncertain and potentially dan- gerous world. While the specific threats and challenges that the United States will face in the years ahead undoubtedly will differ from those that dominated our think- ing over the past forty years, capable, vigilant forces will continue to be required to deter aggression and, if deterrence fails, to take necessary action.
The Convention provides the stability and predictability we seek to ensure the flexibility and mobility for our military naval and air forces, as well as our seaborne and airborne commercial activities around the world. By serving as a source of au- thority, the Convention guides the behavior of nations, promotes stability of expecta- tions, and provides a framework for issue resolution. In effect, it provides the legal predicate for our armed forces to respond to crises expeditiously and, importantly, at minimal diplomatic and political costs. And while the Convention may not pre- clude all attempts by coastal and archipelagic states to impede navigational freedoms, it puts the world community on notice that these freedoms have a solid legal basis and enjoy broad support among the major maritime and industrialized nations.
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.15Statement of William H. Taft IV (April 8, 2004): Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention ." Testimony before the U.S. Senate Committee on Armed Services, April 8, 2004. [ More (10 quotes) ] 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.18Statement of William H. Taft IV (April 8, 2004): Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention ." Testimony before the U.S. Senate Committee on Armed Services, April 8, 2004. [ More (10 quotes) ] 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. "
Some states, especially developing nations, do not embrace customary inter- national law to the same extent that the United States and other maritime powers do. Those states view it as a body of law frequently formed without their participation and consent, law that only promotes the interests of developed nations—often former colonial powers. Developing countries prefer the relative certainty of inter- national agreements concluded on the basis of equality of nations.
Similarly, some Convention signatories, a number of whom are near or adjacent to important waterways used for international transit, have asserted that the Con- vention is a legal contract—and therefore its rights and benefits, such as transit passage and archipelagic sea lanes passage, are not available to non-parties. We do not accept these claimed restrictions on international transit rights, but such issues would be mooted under a universal Convention to which the United States is a Party.
As a recent example of potential difficulties, in July 1994, in the context of their right to exploit seabed resources in the strategic straits of Malacca, Malaysia stated that the ‘‘newness’’ of the transit passage regime casts doubts as to its status as a customary international law principle.
Custom can also develop rapidly based upon interpretations of treaties, as well as the rulings and declarations of international bodies and courts that can declare an existing customary rule.87 In the past 50 years, customary rules have developed quickly in response to technological innovation or in times of fundamental change.88 Moreover, rapid changes to custom do not require multiple instances of state practice,89 particularly when a state with special influence in the field seeks change.90 Most recently, the terrorist attacks on the World Trade Center and Pentagon resulted in changed custom concerning the use of force in self-defense against non-state actors91 and those who support or harbor terrorists.92 Such changes to the well-settled field of international humanitarian law would have been unthinkable in an earlier era.
Some columnists and think tank analysts have argued that U.S. accession to the Convention is unnecessary because excessive maritime claims can be addressed by invoking customary international law and with “operational assertions’’ by the U.S. military. But such an approach is less certain, more risky, and more costly than taking advantage of the Convention. Customary law is by nature subject to varying interpretations and change over time. Operational assertions—sending military ship and aircraft into contested areas—involve risk to naval personnel as well as political costs. Such assertions should be conducted aggressively where needed, but avoided where possible.
International customary laws have developed out of “concordant practice by a number of states . . . over a considerable period of time,” when such practice is thought to be required by, or consistent with, the prevailing international law, and when such practice is generally accepted by other states.117 As mentioned in section III, the Convention itself is based in part on international customary laws. In addition, when an issue is not regulated by the Convention, the customary laws serve a gap-filling role, and because the Convention binds only its signatories, customary international law remains an important means of transacting with non-signatories of the Convention.118 However, the Convention expands the “existing norms to suit new developments where the existing norms are no longer sufficient,” creates new norms, and in some cases replaces old norms that are no longer appropriate.119 Thus, asserting customary international law will not secure all the benefits of the Convention for the United States because the signatories of the Convention do not have to extend specific rights established in the Convention, or those which are modifications of the existing rules, to non-signatories.120 For example, Canada may choose not to grant the United States the right of scientific research in the EEZ or in the continental shelf.121
If it ratifies UNCLOS, the United States seeks to gain “maximum freedom to navigate and operate off foreign coasts without interference,” for both security and economic purposes.87 If the United States does not ratify UNCLOS, it may attempt to assert these freedoms under customary international law. However, its ability to do so is growing weaker, as when coastal States extend their exclusive economic zones, “customary international law may . . . evolve in a way contrary to [American] [i]nterests.”88 Customary law is “not universally accepted, evolves based on State practice, and does not provide access to the Convention’s procedural mechanisms, such as the continental shelf commission.”89 The United States may make excessive maritime claims through customary international law or military operations, but either such approach is “less certain, more risky, and more costly” than working under the UNCLOS framework.90
Furthermore, experts often disagree on the existing norms of international law.122 The ambiguity exists because the international customary law that applies to ocean activities is derived from numerous conventions, judicial decisions, state practice, and interpretations by international organizations. The customary law is not universally accepted, and it changes over time based on state practice.123 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.”124 Also, American companies may not use customary law to claim the right to seabed mining. There is no customary practice for dealing with seabed mining, and such practice is necessary for the formation of customary law.125
Moreover, because it is so difficult to prove the extent of customary law, according to some experts, “[a]bsent express agreement, mandatory obedience to the decisions of international organizations or tribunals is for all practical purposes out of the question.”126 The weaker the sense of legitimacy, the less restrained state practice is likely to be. There is a tendency among nations “to take treaty obligations more seriously than customary law obligations,” which leads to increased self-restraint.127 As Admiral Mullen testified when he was Vice Chief of Naval Operations, “[i]t is too risky to continue relying upon unwritten customary international law as the primary legal basis to support U.S. military operations.”128
There is significant danger in relying so heavily on customary international law to support U.S. desires, and especially to guarantee the movement of our naval expeditionary forces. Customary law is inherently "fuzzy around the edges" and vague on details. This customary law is constantly evolving through a process of claim and counter claim,55 representing an inherently unstable landscape. Some states, especially newly indepen- dent states, do not recognize customary law. They view it as a body of law, frequently formed without their participation or consent, that promotes the interests of developed nations—often former colonial powers—without considering and reflecting those of the developing world56. Finally, customary law is especially difficult to enforce and maintain, requiring, for example, the comprehensive U.S. Freedom of Navigation Program to maintain57 the United States' desired level of freedom of navigation and overflight.
Legal scholars have noted that governments are more inclined to respect obligations to which formal consent has been given by the highest political authorities and that even if the Convention is declaratory of customary international law, this leaves much room for argument about important details. They further argue that without widespread ratification of the Convention, inevitable "violations" are more easily interpreted as evi- dence that state practice, the ultimate source of customary law, is not necessarily rooted 58 in the Convention.