UNCLOS has empirically been successful
One way to determine the extent to which UNCLOS’s navigational provisions have achieved the status of binding international law is to study the behavior of nations. The consistent practice of states—maritime states, coastal states, UNCLOS members, and nonmembers—indicates that the UNCLOS navigational provisions are almost universally accepted law.
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Hans Morgenthau, an astute observer of international politics and founder of the modern school of political realism, dedicated his life to the study of the “struggle for power.” “All history shows,” he wrote in his classic treatise, “that nations active in international politics are continuously preparing for, actively involved in, or recovering from organized violence in the form of war.”123 The Convention serves as a powerful tool to shift maritime political dis- putes from being a cause for violence and naval warfare to a legal based order, approaching the vision of Myres S. McDougal and William T. Burke of a “public order of the oceans.”124 As the negotiations for the Convention were drawing to a close, Ambassador John Norton Moore understood that the United States was reaching its objective of replacing the “struggle for power” at sea with the “struggle for law” in the world’s oceans, reducing, and perhaps one day eliminating, an entire class of maritime conflicts as a cause of war.125 Toward that end, the Convention successfully has influenced numerous countries to conform their conduct and maritime claims to the Convention, typically in a manner that inures great benefit to global stability and security. These positive adjustments and reductions in excessive maritime claims constitute the “dogs that didn’t bark” in law of the sea. Over time, the individual and cumulative effect on U.S. national security and global interests has been positive.
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Other states have also recognized the Convention’s positive legal force—most recently Japan, India, and Mexico at the UN General Assembly’s Sixth Committee (Legal).135 Those nations credited the Convention with operating as a fundamental document for advancing the “rule of law” throughout the world. Most coastal states, in fact, have adjusted their maritime claims to be in conformity with the Convention. For example, 144 States claim a terri- torial sea of 12 nm or less, in accordance with Article 3 of the Convention.136 Throughout the globe, many countries have areas within their law or state practice that are noncompliant, but “state practice complies largely” with the Law of the Sea as reflected in the Convention.137 Even in these instances, however, diplomacy operates within the context of the rules reflected in the Convention.
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One effective component of the struggle for law at sea and the preservation of freedom of the seas is the U.S. Freedom of Navigation (FON) program. The FON program began, more than twenty-five years ago to tangibly exhibit the U.S. determination not to acquiesce to coastal states’ excessive maritime claims. When the program began in 1979, U.S. military ships and aircraft were exercising their rights against excessive claims of about thirty-five countries at the rate of about thirty to forty challenges annually.140 As late as 1998, the United States was conducting more than twenty- five operational assertions each year.141 But by 1999 the decline in operational challenges led the Department of the Navy and the Department of Commerce (within which the National Oceanic and Atmospheric Administration resides) to recommend an expansion of the program to “exercise openly the traditional freedoms of navigation and overflight in areas of unacceptable claims.” In 2000, the United States conducted challenges against just fifteen states.143 The cumulative report for the years 2000 to 2003 and the 2004 report show further decline.144 By 2005, the Department of Defense reported conducting operational challenges against only six nations: Cambodia, Ecuador, Philippines, Indone- sia, Iran, and Oman. That level of operational assertions remained steady in 2006, with challenges reported against the excessive maritime claims of the Philippines, Indonesia, Iran, Oman, and Taiwan.146 The steady decline in freedom of navigation challenges over the last ten years is attributable to two factors: (1) a reduction in the number of excessive claims due to the constructive influence of the Convention and (2) Department of Defense resource constraints imposed by a declining naval force structure coupled with competing tasking in support of the War on Terror.
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One way to determine the extent to which UNCLOS’s navigational provisions have achieved the status of binding international law is to study the behavior of nations. Behavior in conformity with the convention—known as “state practice”—is additional evidence that its navigational provisions reflect international law. Indications that a state is acting in conformity with international law may be found in states’ “legislation, the decisions of their courts, and the statements of their official government and diplomatic representatives.” A nation’s inaction regarding a particular navigational provision may also be viewed as state practice because it can be deemed to be acquiescence. The consistent practice of states—maritime states, coastal states, UNCLOS members, and nonmembers—indicates that the UNCLOS navigational provisions are almost universally accepted law. The Restatement of the Law, Third, of the Foreign Relations Law of the United States notes:
[B]y express or tacit agreement accompanied by consistent practice, the United States, and states generally, have accepted the substantive provisions of the Convention, other than those addressing deep sea-bed mining, as statements of customary law binding upon them apart from the Convention.
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There are many multilateral treaties that fill in the UNCLOS framework. These instruments are widely accepted and implemented, and they promote order and the free flow of commerce by prescribing universal standards for vessel construction, operation, and management, for the training and qualification of mariners, and the like. In accordance with the 1982 United Nations Convention on the Law of the Sea, they assign compliance responsibility to flag states.However, in the spirit of "trust but verify," they contain real enforcement mechanisms that enable coastal and port states to safeguard their vital interests, even in the face of occasionally lackadaisical flag-state oversight. Taken together, this "other" law of the sea serves a valuable purpose, the promotion of vessel safety and security and environmental stewardship. Statistics suggest that it is achieving its goals.
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For purposes of this assessment, however, the crucial point is that mechanisms exist for the peaceful establishment of these claims through the submission of scientific evidence to the Commission.58 And the Arctic states, including Russia, have been following the rules of the game, and, in some instances, working together to develop the necessary scientific data.59 It is important to keep in mind that while these claims may implicate very large tracts of territory (as Russia’s initial application certainly did), there is nothing inherently illegitimate about such claims; the extent of “the submerged prolongation of the land mass of the coastal State” and “the slope and the rise” of “the sea-bed and subsoil of the shelf” does not command a pari passu distribution of continental shelf among the Arctic states.60 In brief, some states’ shelves may simply be bigger than others. This outcome could be entirely consistent with the rule of law.
While there are legitimate reasons to be concerned that the Commission is overworked and understaffed, there is currently no indication that any country, Russia included, is prepared to charge ahead with an Arctic claim that has not received the Commission’s approval.61 Consistent with that view, it has emerged that February 2009 talks between Canada and Russia included discussion of a potential joint submission from Canada, Denmark, and Russia to the Commission.62 Such an application would not determine competing claims among the three countries, but would allow for demarcation of the area under the control of those coastal states from the area beyond. Furthermore, the collaboration required to produce a joint submission could itself be a valuable confidence-building measure that would defuse nascent disagreements over exactly where final borders should be drawn.