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,
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If appropriately resourced by the combatant commanders, the Freedom of Navigation program is effective, but it is not a panacea. 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 FON program may present diplomatic costs and pose risks inherent in physical challenges,148 as was displayed by the Black Sea bumping incident in February 1988. In 1996, the National Intelligence Council concluded that in some cases the costs, disadvantages, or risks of physically challenging excessive claims might be greater than the benefits.149 Of course, coastal states understand this calculus and will try to manipulate it to their advantage since they have an incentive to compel the inter- national community to acquiesce in their excessive maritime claims.
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Those who point to the freedom with which the U.S. Navy, in particular, has roamed the seas, and to the success of the Freedom of Navigation Program, miss many of the nuances of the way in which the Navy uses the seas. The United States takes extraordi- nary measures to ply the oceans responsibly. There have only been a small number of incidents of violence involving U.S. forces because we are very selective about when and where we choose to challenge excessive maritime claims.59 Naval commanders are ￼￼￼￼￼￼￼￼￼￼￼￼￼￼given extensive guidance, primarily in The Commander's Handbook on the Law of ￼Naval Operations60, regarding their rights and duties, and they are enjoined to respect the rights of coastal states to ocean areas under their purview. Additionally, they are charged specifically to provide advance notice and reporting if they are entering into ￼￼￼￼ areas in which an international incident is likely.61 Where a Freedom of Navigation challenge of an illegal maritime claim is deemed appropriate, this challenge is not del- egated to the local commander, but must be thoroughly reviewed by higher authority before any Freedom of Navigation operation can take place.62 These factors have the practical effect of placing real-world limitations on U.S. operations—limits that would not exist if illegal claims were rolled back to conform with the Law of the Sea Convention.63
Regardless of the outcome of contention on, over, or under the oceans, as the world's most influential maritime power and leader of the de facto maritime coalition, oceanic conflict is ultimately unhelpful to the United States. The deaths of Libyan pilots as the result of United States protest of excessive maritime claims should be as upsetting to the United States as the death of an American airman in 1992 when the aircraft he was flying in was shot at by a Peruvian fighter aircraft 175 miles from the coast of Peru.64 Both incidents reflect a breakdown of the rule of law for the oceans and are ultimately bad for the United States.
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One method the United States has adopted to deal with state claims inconsistent with international law as reflected in the Convention is the Freedom of Navigation (FON) Program. Initiated in 1979 and continued by every administration since then, this program combines diplomatic action and operational assertion of our navigation rights to discourage state claims inconsistent with international law as reflected in the Convention. But the political, economic, and military costs of this program are not trivial, and for a Navy stretched thin to meet its urgent operational commitments, every freedom of naviga- tion challenge comes with an opportunity cost somewhere else—to say nothing of the risks to the Sailors on those ships. This was put forcefully by then-CNO Vern Clark in a letter to the Senate Armed Services Committee:
For the many years we’ve remained outside the Convention, we’ve asked our young men and women to conduct operations, sometimes at great risk, to challenge the exces- sive maritime claims of other states. Joining the Law of the Sea Convention will let our people know that, when they’re operating in defense of this nation, far from our shores, they have the backing and the authority of widely recognized law to look to, rather than depending only upon the threat or use of force.
The tense showdown between the United States People’s Republic of China over the collision between a Chinese fighter and a Navy EP-3 aircraft—an event that occurred in China’s exclusive economic zone—is but one indication of the risks described by Admiral Clark. sufficient for US to secure its naval rights The tense showdown between the United States and the
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These excessive claims are cause for particular concern because they cover the full spectrum of maritime possibilities and because they are being made by the full spectrum of the community of nations. For example:
- Argentina, Italy, Panama, and Russia have historic bay claims that do not comply with international norms.
- Canada, China, Costa Rica, North Korea, Portugal, Vietnam, and others have sig- nificant excessive baseline claims.
- Cape Verde, Indonesia, and the Philippines have sought to impose restrictions on archipelagic sea lanes passage not contemplated by the 1982 Convention.
- China, Djibouti, Egypt, Indonesia, North Korea, Pakistan, and the Philippines have articulated various nonconforming restrictions on innocent passage.
- Argentina, Canada, Italy, Spain, and others have sought to impose restrictions on straits used for international navigation.
- Brazil, Ecuador, and Peru have restrictions on aircraft overflight in their exclusive economic zones inconsistent with the convention.
- Cape Verde, Finland, Iran, Sweden, and others have declared warships to be sub- ject to special coastal state regulation.34
This is just a sampling of excessive maritime claims, but the diversity of types of claims and the character and numbers of nations involved suggest that continuous U.S. challenges to these will require substantial effort. The financial and diplomatic costs, as well as the overall risks associated with the use of such forces, are likely to be substan- tially higher in the absence of a specific, binding treaty, and the long-term effectiveness of challenge programs remains doubtful in the view of some commentators.35 Many of the nations making claims that the United States considers excessive assert that the convention is a legal contract, the rights and benefits of which are not necessarily available to non-parties. The continual counter-assertion by the United States that these rights and benefits are embodied in customary international law may be difficult to sustain. The situation may well have been summed up best by Rear Admiral Schachte: "The political costs and military risks of the Freedom of Navigation Program may well increase in the changing world order."36
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) ]
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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.
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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