U.S. does not need to ratify UNCLOS to preserve freedom of navigation rights
It is not essential or even necessary for the United States to accede to UNCLOS to benefit from the certainty and stability provided by its navigational provisions. Those provisions either codify customary international law that existed well before the convention was adopted in 1982 or “refine and elaborate” navigational rights that are now almost universally accepted as binding international law.
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Convention advocates further contend that even if the LOST is flawed, only participation in the treaty regime can prevent future damaging interpretations, amendments, and tribunal decisions. Bernard Oxman, a University of Miami Law School professor who also serves as a judge ad hoc on the International Tribunal for the Law of the Sea, contends that “what we gain by becoming party is increased influence over” the interpretation of the convention’s rules.63 Senator Lugar worries that failing to ratify the treaty means the United States could “forfeit our seat at the table of institutions that will make decisions about the use of the oceans.”64 David Sandalow of the Brookings Institution warns that if the United States stays out of the LOST, it risks losing some of its existing navigation freedoms through “backsliding by nations that have put aside excessive maritime claims from years past.”65
However, America’s friends and allies, in both Asia and Europe, have an incentive, with or without the LOST, to protect navigational freedom. So long as Washington maintains good relations with them—admittedly a more difficult undertaking because of strains of the war in Iraq—it should be able to defend U.S. interests indirectly through surrogates. If the nations that benefit from navigational freedom are unwilling to aid the United States while Washington is outside the LOST, they are unlikely to prove any more steadfast with Washington inside it. Assistant Secretary Turner admitted as much when he told the Senate Foreign Relations Committee in October 2003 that the United States had “had considerable success” in asserting “its oceans interests as a non-party to the Convention.”66
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Assertion #1: The U.S. needs to join UNCLOS to “lock in” the navigation rights it currently enjoys under customary international practice. Implied in this argument is the presumption that other nations, the vast majority of which are UNCLOS participants, will ignore their obligations under the treaty and forgo the concurrent privileges regarding navigation rights afforded by customary international practice just because the U.S. is not a party to the treaty. This, according to the Bush Administration, will manifest itself in the form of some coastal states demanding notification by U.S. ships entering their waters or airspace.
Fact: These states have reciprocal interests in navigation rights that will discourage them from making such demands. Second, the few irresponsible states that may decide to make such challenges are not going to be dissuaded by the “locking in” argument or U.S. appeals to the navigation provisions of UNCLOS.
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With regard to freedom of movement: President Reagan’s 1983 Ocean Policy Statement stated that UNCLOS “contains provisions with respect to traditional uses of the oceans which generally confirm existing maritime law and practice . . ..”16 The International Court of Justice reached a similar conclusion in the 1984 Gulf of Maine case, albeit in the context of the continental shelf and EEZ articles, indicating that the Convention’s provisions were reflective of customary international law.17 In short, today, all of the important provisions of UNCLOS dealing with freedom of movement, such as the rights of innocent passage, transit passage, archipelagic sea lanes passage, and high seas freedoms seaward of the territorial sea, are considered by virtually all nations as a reflection of customary international law that is binding on all nations. Both our commercial shipping and military forces have exercised and enjoyed these rights for the past 25 years, during which time the United States has not been a party to UNCLOS. Clearly, the United States does not have to become a party to the Convention to exercise its navigational rights and freedoms worldwide. Iran is the only country that continues to maintain that the right of transit passage through the Strait of Hormuz applies only to State Parties to the Convention. What we need more than membership in another treaty is a coherent national policy that supports freedom of navigation and a strong Navy that can challenge excessive coastal state claims that purport to curtail our freedom of movement and restrict our access to the world’s oceans.
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In 1993, 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.” The paper 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 protests 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.
Almost 20 years later, there is no evidence that suggests a change in circumstances such that U.S. accession to UNCLOS has become essential to the successful execution of the U.S. Navy’s global mission.
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Yet proponents of U.S. accession to UNCLOS maintain that the United States cannot fully benefit from these navigational rights unless it is a party to the convention, which “provides” and “preserves” these rights. This is simply incorrect. The United States enjoys the same navigational rights as UNCLOS parties enjoy.
At the December 1982 final plenary meeting of the Third United Nations Conference on the Law of the Sea, some nations took the opposite position, contending that any nation that chose not to join the convention would forgo all of these rights. On March 8, 1983, the United States, exercising its right to reply, expressly rejected that position:
Some speakers discussed the legal question of the rights and duties of States which do not become party to the Convention adopted by the Conference. Some of these speakers alleged that such States must either accept the provisions of the Convention as a “package deal” or forgo all of the rights referred to in the Convention. This supposed election is without foundation or precedent in international law. It is a basic principle of law that parties may not, by agreement among themselves, impair the rights of third parties or their obligations to third parties. Neither the Conference nor the States indicating an intention to become parties to the Convention have been granted global legislative power....
The United States will continue to exercise its rights and fulfil its duties in a manner consistent with international law, including those aspects of the Convention which either codify customary international law or refine and elaborate concepts which represent an accommodation of the interests of all States and form part of international law.
In sum, it is not essential or even necessary for the United States to accede to UNCLOS to benefit from the certainty and stability provided by its navigational provisions. Those provisions either codify customary international law that existed well before the convention was adopted in 1982 or “refine and elaborate” navigational rights that are now almost universally accepted as binding international law.
Moreover, at a time when Washington is combating lawless terrorism, it should be evident that the only sure guarantee of free passage on the seas is the power of the U.S. Navy, combined with friendly relations with the states, few in number, that sit astride important sea lanes. Coastal nations make policy based on perceived national interest, not abstract legal norms. Remember the luckless USS Pueblo in 1968? International law did not prevent North Korea from seizing the intelligence ship; approval of the Law of the Sea Treaty would have offered the Pueblo no additional protection. America was similarly unaided by international law in its 2001 confrontation with China over our downed EP-3 surveillance plane.
Nor has signing the Law of the Sea Treaty prevented Brazil, China, India, Malaysia, North Korea, Pakistan, and others from making ocean claims deemed excessive by others. Indeed, last October Adm. Mullen warned that the benefits he believed to derive from treaty ratification did not "suggest that countries' attempts to restrict navigation will cease once the United States becomes a party to the Law of the Sea Convention."
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The U.S. enjoys navigation rights by customary international practice. The fact that the U.S. is not a convention member does not mean that other states will begin to demand notification by U.S. ships entering their waters or airspace. Indeed, the U.S. is not a signatory to the convention today and yet has freedom of the seas because current participants are required to grant the U.S. navigation rights afforded by customary international practice. In addition, these states have reciprocal interests in navigation rights that will discourage them from making such demands on American ships in the future.
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Nor is the treaty unambiguously favorable to transit rights. The document introduces some new limitations on navigation involving the EEZs, territorial seas, and water surrounding archipelagic states. Even seemingly innocent restrictions might have a negative impact; Alfred Rubin of Tufts University worried that the ban on “research or survey activities” could limit U.S. naval transit rights.
At other times the LOST’s language is ambiguous—regarding transit rights for sub- merged submarines, for instance—which ultimately limits the value of the treaty guarantee. Ambassador Pardo complained that the treaty “is often studiously unclear, and predictability suffers.”50 Louisiana State University law professor Gary Knight argued that “the difficulty of establishing our legal right to EEZ navigation [through other nations’ exclusive economic zones] and submerged straits passage [for submarines] would be no more difficult under an existing customary international law argument than under the convoluted text of the proposed UNCLOS.”51 In short, there is only a modest theoretical advantage for which to trade away the mining provisions.
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Even if the LOST offered a definite and positive interpretation of navigation provi- sions, the legal protections for free transit would provide little practical gain. Benjamin and Daniel Friedman contend: “By signing the Convention, the United States gives added weight and stability to customary rights, and pushes recalcitrant states to respect navigational freedoms.” Administration representatives make the same argument: “The navigation and overflight freedoms we require through customary international law are better served by being a party to the Convention that codifies those freedoms,” testified Adm. Michael G. Mullen, then vice chief of naval operations for the Joint Chiefs of Staff. "
That’s true, but it doesn’t go very far. The now-retired Admiral Schacte acknowledged in Senate testimony: “The Convention alone is not enough, even [with the United States] as a party. Our operational forces must continue to exercise our rights under the Convention.”54 That is, to protect American navigation rights from foreign encroachments, the U.S. Navy must regularly conduct military operations on the basis of the international transit freedoms claimed by Washington, regardless of whether or not the United States ratifies the LOST. Meanwhile, the LOST is unlikely to influence countries that have either the incentive or the ability to interfere with U.S. shipping. In practice, few do: nations usually have far more to gain economically from allowing unrestricted passage.
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However, when countries perceive their vital national interests to be at stake—Great Britain in World War I and Iran during its war with Iraq in the 1980s, for instance—they rarely allow juridical niceties to stop them from interdicting or destroying international commerce. In a crisis, most maritime nations are ready to sacrifice abstract legal norms in pursuit of important policy goals.
Indeed, LOST membership has not pre- vented Brazil, China, India, Malaysia, North Korea, Pakistan, and others from making ocean claims deemed by others to be exces- sive—and, thus, illegitimate—under the treaty. In testimony last October, Admiral Mullen warned that the benefits he believed were derived from treaty ratification did not “sug- gest that countries’ attempts to restrict navigation will cease once the United States becomes a party to the Law of the Sea Convention.”55