U.S. ratification of UNCLOS would bolster efforts of Freedom of Navigation program
Although states making excessive claims will never publicly welcome U.S. challenges through its Freedom of Navigation program, the U.S. – as an UNCLOS party – would have greater credibility and standing to conduct challenges, reaffirming as a fellow-member the crucial tenants of an internationally accepted legal regime.
That UNCLOS membership would promote international maritime collaboration should be obvious. Less obvious, however, is how UNCLOS membership might also facilitate unilateral action. Consider the U.S. Freedom of Navigation (FON) Program.104 Consistent with the need to shape the law through state practice, the U.S. has historically conducted operations designed to challenge excessive maritime claims. The FON program provides a framework for conducting such operations. Although states with excessive claims will never publicly welcome U.S. challenges, the U.S. – as an UNCLOS party – would have greater credibility and standing to conduct challenges, reaffirming as a fellow-member the crucial tenants of an internationally accepted legal regime. In this context, challenges might be made more frequently and in more meaningful areas, rendering them a more potent component of U.S. strategic communication on freedom of the seas and airspace. Moreover, as an UNCLOS party, the U.S. could augment the diplomatic and operational means to challenge excessive maritime claims with the Convention’s mandatory dispute procedures. The U.S. thus would have those procedures to use offensively against excessive maritime claims that are not in compliance with the Convention, including those that limit military mobility and high seas freedoms.
To the extent the United States continues to have a need for unrestricted, legal access for its naval forces up to the territorial waters of all the countries of the world, we believe it should continue to use vehicles such as the Freedom of Navigation Program to assert these rights, but should also supplement this with other arrangements and understandings with foreign security partners. A sufficiently dense network of such arrangements and understandings, followed by consistent practice, will ensure the vitality of customary norms. In the end, it is our view that this is an approach that will ensure the best balance among an ongoing network of lawful naval and military activities, stable international law, freedom of navigation for ocean-going commerce, and is an approach that will protect interests common to all in an internationally interdependent world.