Freedom of Navigation program is not a long-term viable solution to address excessive claims
The United States can assert its navigational rights at any point on the globe, but it cannot be assured of a local superiority of forces simultaneously at every location of potential maritime dispute. Moreover, obvious practicality compels restraint—against both allies and potential adversaries—over maritime disputes. Even the peaceful and non-confrontational Freedom of Navigation (FON) program may present diplomatic costs and pose risks inherent in physical challenges,
The critics also show little understanding of the realities of asserting the rule of law in the world's oceans. They seemingly contend that the United States can protect its interests by shooting its way around the oceans rather than developing a stable and favorable legal regime, defensible with force if necessary, that provides a legal basis for naval and air operations. The United States simply cannot shoot its way to acceptable resolutions of oceans disputes with Canada, Chile, Brazil, India, Italy and other democracies. Nor is it realistic to ignore the effects of law and international agreements in our interactions with others. It is hubris to believe that the United States can disregard the law without consequences, as it creates scenarios where other nations follow suit, thus compromising interests on both sides. Ironically, at a time when the president of the United States is urging others toward the rule of law as a foreign policy interest, the critics voice only disdain for that principle.
"The Senate should give immediate advice and consent to the UN Convention on the Law of the Sea: why the critics are wrong.
." Journal of International Affairs
. Vol. 59, No. 1 (Fall/Winter 2005) [ More (18 quotes) ]
[ Page 176-177 ]
The assertion that the US can enjoy all of the rights enjoyed afforded to State Parties without itself actually becoming a signatory rests on an illusory interpretation of how customary international law is applied. Customary international law, along with treaties, are the only two sources of international law considered to be binding.186 Customary international law is formed by the convergence of two fundamental elements: State practice (usus) and the corresponding views of States that a particular norm exists (opinio juris).187
Taking into account how customary international law is formed, consider opponents' reliance on a Department of Defense Ocean Policy Review Paper from 1993,188 expressing that the Department of Defense's Freedom of Navigations Program was actively preserving the fundamental freedoms of navigation and over-flight.189 However, from 2007-2012, the number of countries the United States has challenged under this same program has tripled.190 This manifestly indicates a change in State practice and, thus arguably, a change in customary international law. Continuing to rely on an over twenty-year-old policy paper is doctrinally antithetical to customary international law and severely inadequate for preserving US maritime interests. Therefore, from a national security perspective, UNCLOS is now a more important legal regime than it was a few decades ago.191 Continued dependence on hard power and gunboat diplomacy is not a sustainable option for US foreign policy going forward.192
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I also believe, Mr. Chairman, that it is short-sighted to argue that, if the customary law system somehow breaks down, the United States, as the world’s pre-eminent naval power, wouldn’t have any trouble enforcing it. Clearly, our Navy could engage in such an effort. However, enforcing our navigational rights against every coastal nation in the event the Convention and customary law systems collapse would be very costly, both politically and economically. Moreover, it would divert our forces from their primary missions, including the long-term global war on terrorism. Excessive coastal nation claims are the primary threat to our navigational freedoms. Those claims can spread like a contagious virus, as they did in the 20th Century. The added legal security we get from a binding treaty permits us to use our military forces and diminishing resources more efficiently and effectively by concentrating on their primary missions.
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U.S. adherence to the Convention is not necessary because navigational freedoms are not threatened (and the only guarantee of free passage on the seas is the power of the U.S. Navy).
- It is not true that our navigational freedoms are not threatened. There are more than one hundred illegal, excessive claims affecting vital navigational and overflight rights and freedoms.
- The United States has utilized diplomatic and operational challenges to resist the excessive maritime claims of other countries that interfere with U.S. navigational rights under customary international law as reflected in the Convention. But these operations entail a certain amount of risk – e.g., the Black Sea bumping incident with the former Soviet Union in 1988.
- Being a party to the Convention would significantly enhance our efforts to roll back these claims by, among other things, putting the United States in a far stronger position to assert our rights and affording us additional methods of resolving conflict.
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It is myopic for the United States to gamble that its extant approach of FON assertions and diplomatic protests will be an adequate near and long-term course of action, especially in an era of increasing national security interconnectedness. Under the geopolitical conditions prevalent during the last fifteen years, the United States may well have been better postured to leverage its significant political, economic, and military influence in support of its maritime security objectives than it will be in the coming twenty five years. While UNCLOS critics appear content to assume that staying the current course of UNCLOS abstention for the next twenty-five years is unlikely to result in adverse impact, such a sanguine assumption ought to be regarded with an "all else equal" asterisk. While the aforementioned relative advantage has clearly not evaporated, the current trend toward its erosion appears to portend that "all else" will likely not be equal going forward. Given that the dynamics of political and customary international legal norm development typically include interrelated, gradual incubation periods, as well as discernable "tipping points," a more exacting predictive model is appropriate. This is especially so given the potential that significantly increased political, economic, and military costs could attend sustaining current access levels to key regional sea lines of communication in the future. As Professor Kraska posits, "The strategic, operational and political 'landscapes' of the sea have changed." seen from the assessments of some among the Chinese naval establishment in 1994, the year UNCLOS entered into force for member states, he is not alone in this view.
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Why support the Convention now? Administration officials cite a "resurgence of creeping jurisdiction" by coastal states within their EEZs.36 This resurgence threatens Convention-based navigational rights, which are at least as important today as they were during the Cold War. Alternative ways to respond to creeping coastal state jurisdiction are not satisfactory. If the U.S. continues to rely on assertions that customary international law establishes certain navigational rights, coastal states may increasingly counterclaim that emerging customary international law restricts such rights in coastal zones.37 Some coastal states may altogether deny that Convention-based navigational rights exist under customary international law. As Admiral Michael G. Mullen, Vice Chief of Naval Operations, testified before the Senate Foreign Relations Commit- tee, "some coastal states contend that the navigational and over- flight rights contained in the Convention are available only to those states that also accept the responsibilities set forth in the Convention by becoming parties to it."38 if it joined the Convention, the U.S. would likely have less need to rely on either its Freedom of Navigation Program39 or negotiating new bilateral agreements.40 The rules in the Convention clarify issues and narrow considerably the range of possible disagreements over navigational rights. Accepting the Convention will thus be less expensive-in terms of dollars, potential confrontations or loss of good will with coastal states, and U.S. concessions on other fronts-than continuing to stand outside it.
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When the Convention on the Law of the Sea came into effect in 1982 it sought to broadly codify and balance coastal state territorial and resource rights against the need for freedom of navigation by maritime nations.54 Coastal state territorial seas were expanded, but only after acceptance of regimes for innocent and transit passage.55 The same balance was struck when creating archipelagic lanes through island nations and allowing for high seas freedoms in the newly created Exclusive Economic Zone (EEZ) where coastal states now maintained resource rights.56,57 This area of “shared rights and responsibilities,” along with coastal nation propensity to “adopt excessively generous” baselines, has proven quite contentious for the United States as it seeks to maintain freedom of navigation and peacetime access around the globe.58,59 Furthermore, coastal state interpretation of the convention in a manner most beneficial to self-interest creates major difficulties for the United States.
As a non-party to UNCLOS, the U.S. lacks “a seat at the table when the  parties to the Convention interpret (or try to amend)” the rights and freedoms protected within the convention, and forfeits the use of binding dispute resolution to counter coastal state encroachment.60 Instead these freedoms negotiated in the convention, but either ignored or incorrectly interpreted, must be objected to through the U.S. Freedom of Navigation (FON) Program to keep customary international law from developing contrary to U.S. strategic interests.61 Unfortunately, “that approach plays directly into the hands of those foreign coastal States that want to move beyond the Convention,” because “they too cite customary international law as the basis for developing claims of coastal State sovereignty in the EEZ.”62
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The costs of conducting frequent naval Freedom of Navigation missions may be significant—in political, economic, and military terms. Beyond the incidental financial costs of conducting such exercises, they sometimes require deploying naval vessels to regions they would not normally patrol. While some Freedom of Navigation missions would still be conducted, regardless of the U.S. position on the 1982 Convention, we believe that, from an operational standpoint, our dwindling naval forces would be able to shed some Freedom of Navigation commitments and that we would face fewer contentious issues if the United States were a signatory to the Treaty. As one observer put it, “If freedom of the seas has to be bought by vigilance and violence, then it will be, and the U.S. Navy will bear the brunt.”11 While there have been no flagrant incidents of a Treaty signatory denying navigational rights to the United States as a nonsignatory, a climate of periodic discord and confusion has developed surrounding some maritime controversies.12 This climate has the potential to be particularly acute for the United States. Without a Treaty, the United States has but two instruments to safeguard these freedoms should one or more nations fail to abide customary law: freedom of navigation assertions and diplomatic actions. This method is politically costly and detracts from other Navy missions.13
"United States Convention on the Law of the Sea: Time for a U.S. Reevaluation?
." Naval Law Review
. Vol. 40. (1992): 229-239. [ More (2 quotes) ]
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“Egregious Excessive Claims.” A ninth reason that led the United States toward accession to the Convention was the growing political and military cost of the Freedom of Navigation (FON) Program. This effort, initiated by the Carter administration in 1979 and continued under presidents Reagan, Bush, and Clinton, combined diplomatic and operational (not solely naval) means to discourage claims violating the navigational freedoms asserted by the 1982 Convention—freedoms that the US. supported even though, for other reasons, it had not signed the treaty.49 The FON program involved (and at this writing still does) naval exercises and consultations, bilateral and multilateral, with other governments to promote maritime stability, conformance with international law, and adherence by all nations to the customary rules and international law reflected in the Convention.
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This is just a sampling of excessive maritime claims and their sequels, but it represents the financial and diplomatic costs, as well of the risks, associated with the FON program. The case became compelling that such costs and risks would be substantially less under a specific, binding treaty.55 Two noted experts on the law of the sea, 1. Ashley Roach and Robert W. Smith, presented the position of the State Department in 1994: “Unilateral U.S. demonstrations of resolve—especially operational assertions—are sometimes viewed as antagonistic. They risk the possibility of military confrontation and of political costs that may be deemed unacceptable, with prejudice to other US. interests, including worldwide leadership in ocean affairs and support for use of cooperative, international solutions to mutual problems?“
The author argues that U.S. Freedom of Navigation Operations (FONOPs) in East Asia are increasingly provocative and prone to accidents and they could lead to "a long, drawn-out crisis that, even if it stops short of war, would prove highly disruptive to U.S. efforts to cooperate with China on areas of great import."
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The author argues that U.S. shows of force in the South China Seas through freedom of navigation operations are counterproductive and risk turning our allies against us. Instead the author argues a diplomatic approach would be more proportional and "seems to be sufficient for other nations, including maritime powers whose rights the U.S. claims to be protecting."
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