United States Convention on the Law of the Sea: Time for a U.S. Reevaluation?
The immediate effect of our failure to sign the Convention was a loss of political capital. Had we been only a peripheral player in the UNCLOS process, or had we objected earlier and more vigorously to certain proposals, our refusal to sign would not have been so conspicuous. Unfortunately, our 25 years of active participation in the process, and our mild objections to the initial deep seabed mining provisions, gave the community of nations every reason to believe we were going to sign and support the Treaty. Our refusal to sign at the end of the process was viewed as a capricious policy reversal, resulting in significant political cost.
This situation was exacerbated by the 1983 Reagan Proclamation, which appeared to the international community as an attempt to mold the Treaty for our own use. We lost significant political credibility with our decision not to sign the Treaty and touched off a further torrent of criticism in the wake of the Presidential statement. Some of the international community refused to accept the U.S. contention that the non-seabed provisions of the Treaty reflected customary law and therefore were applicable to all states, whether or not they were parties to it. As one of the most influential UNCLOS negotiators expressed it: “The provisions of the Convention are closely interrelated and form an integral package. Thus, it is not possible for a state to pick what it likes￼and disregard what it does not like.”10 ￼
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