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.
Quicktabs: Arguments
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.
The Convention guarantees rights of innocent passage through territorial seas, transit passage through straits and archipelagoes, and freedom of all vessels on the high seas. Seafaring vessels, such as container ships, crude oil tankers, and bulk carriers, carry over 95 percent of all goods imported to or exported from the United States. Guaranteeing their free movement is both an economic and a national security concern, as these ships transport the majority of this country’s oil and other crucial commodities and goods.
The Convention’s detractors argue that U.S. ships can rely on customary international law to ensure their mobility. But customary international law is not well- suited to the needs of business. By definition, it is hard to find and apply customary law because it does not exist in one place. Its rules can and will shift over time. Shipping companies benefit from a set of stable, written rules that they can easily reference during a dispute. The Law of the Sea Convention serves this function by codifying key navigational rights in a single, central authority.
The treaty would officially give U.S. fisherman priority over stocks adjacent to the American coast, and the U.S. Navy would continue to navigate the globe unimpeded. But the U.S., almost alone, has never ratified the treaty it sought and needed, despite the efforts of every President since, because the rule is so customary that it goes mostly unchallenged.
Those who oppose ratification believe that regardless of whether the U.S. is a part of it or not, the Treaty, in binding others, provides the ground rules the U.S. seeks generally and now needs in the Arctic. This is a delusion.
Without the U.S. ratification of the Treaty, which would greatly support its integrity, the agreed upon 200-mile zone deal is under great stress around the world. The South China Sea is a prime example where the 200-mile zone deal is threatened as China claims much more, and the Arctic Ocean will be another. The U.S. must be able to legitimately defend its interests; It could challenge the encroachment of others as a ratified member of the treaty.