Freedom of navigation program is sufficient to protect U.S. navigation rights
The United States actively protects its Freedom of Navigation rights by protesting excessive maritime claims made by other nations and by conducting operational assertions with U.S. naval forces to physically dispute such claims. These diplomatic and military protests were formally operationalized as the Freedom of Navigation (FON) Program in March 1979 during the Carter Administration.
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More than a decade after the adoption of UNCLOS, the Department of Defense issued an Ocean policy review paper on “the currency and adequacy of U.S. oceans policy, from the strategic standpoint, to support the national defense strategy,” which concluded that U.S. national security interests in the oceans have been protected even though the U.S. is not party to UNCLOS:
U.S. security interests in the oceans have been adequately protected to date by current U.S. ocean policy and implementing strategy. U.S. reliance on arguments that customary international law, as articulated in the non-deep seabed mining provisions of the 1982 law of the Sea Convention, and as supplemented by diplomatic pro- tests and assertion of rights under the Freedom of Navigation program, have served so far to preserve fundamental freedoms of navigation and overflight with acceptable risk, cost and effort.22
This is not to say that the Department of Defense does not support U.S. accession to UNCLOS—it certainly does. However, the Department of Defense does not, and cannot, say that U.S. membership in UNCLOS is absolutely essential to the preservation of navigational rights or that the United States is incapable of protecting those rights unless it accedes to the convention.
The U.S. Navy thrived for more than 180 years from its birth in 1775 through two world wars and developed into a global maritime power, all without membership in UNCLOS. in 1958, the principles of high seas freedom and innocent passage through territorial waters were codified in the first round of law-of-the-sea conventions. Between 1958 and 1982, the Navy continued to fulfill its mission on a global scale. UNCLOS was adopted in 1982, duplicat- ing the navigational provisions of the 1958 conven- tions and “crystallizing” the concepts of transit pas- sage and archipelagic sea-lanes passage. Since 1982 through the end of the Cold War and to the present day, the Navy continues to prosecute its mission as the world’s preeminent naval power.
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In the early 1990s, the Defense Department began to publish its operational assertions in annual reports. These reports indicate that from fiscal year (FY) 1993 to the present the U.S. Navy conducted hundreds of FON operations to dispute various types of excessive maritime claims made by 48 nations.23 The United States has issued a limited number of FON protests regarding excessive maritime claims in the Arctic Circle, including protests of Russian “historic waters” claims in the Laptev and Sannikov Straits and Canadian regulations on transit through the Northwest Passage.24
The U.S. has made clear that it will act in accordance with the customary international law of the sea, including the navigational provisions of UNCLOS, and will recognize the maritime rights of other nations in the Arctic Ocean and elsewhere. When other nations assert claims contrary to customary international law, the United States actively contests such claims through the FON Program. No evidence suggests that any Arctic nation plans to hinder U.S. military mobility in the Arctic Ocean by making excessive maritime claims. Nor is there evidence that any Arctic or non-Arctic nation intends to disregard U.S. sovereignty over its territorial sea off Alaska.