National Security: Customary international law and the Convention on the Law of the Sea
First, customary international law is, by its very definition, a fluid and changing concept. Vague on details, it is a constantly evolving process created by claim and counterclaim. As a result, there is much less agreement on the details of the customary Law of the Sea. Therefore, customary international law does not provide the kind of stability and predictability that we need for an uncertain political landscape. By contrast, the Convention locks in the rules that promote maximum maritime flexibility while at the same time ensures that coastal state interests are accommodated. This balance between maritime and coastal interests enhances the Conven- tion’s long term viability as well as its widespread acceptability among diverse inter- est groups. In short, the Convention will foster the legal stability that the United States and the rest of the international community has sought for so long.
The end of the Cold War has not changed the fact that many of our economic, political, and military interests are located far away from American shores. Recent events in Haiti, the Persian Gulf, the former Yugoslavia, Somalia, and Rwanda serve as important reminders that we still live in an uncertain and potentially dan- gerous world. While the specific threats and challenges that the United States will face in the years ahead undoubtedly will differ from those that dominated our think- ing over the past forty years, capable, vigilant forces will continue to be required to deter aggression and, if deterrence fails, to take necessary action.
The Convention provides the stability and predictability we seek to ensure the flexibility and mobility for our military naval and air forces, as well as our seaborne and airborne commercial activities around the world. By serving as a source of au- thority, the Convention guides the behavior of nations, promotes stability of expecta- tions, and provides a framework for issue resolution. In effect, it provides the legal predicate for our armed forces to respond to crises expeditiously and, importantly, at minimal diplomatic and political costs. And while the Convention may not pre- clude all attempts by coastal and archipelagic states to impede navigational freedoms, it puts the world community on notice that these freedoms have a solid legal basis and enjoy broad support among the major maritime and industrialized nations.
Some states, especially developing nations, do not embrace customary inter- national law to the same extent that the United States and other maritime powers do. Those states view it as a body of law frequently formed without their participation and consent, law that only promotes the interests of developed nations—often former colonial powers. Developing countries prefer the relative certainty of inter- national agreements concluded on the basis of equality of nations.
Similarly, some Convention signatories, a number of whom are near or adjacent to important waterways used for international transit, have asserted that the Con- vention is a legal contract—and therefore its rights and benefits, such as transit passage and archipelagic sea lanes passage, are not available to non-parties. We do not accept these claimed restrictions on international transit rights, but such issues would be mooted under a universal Convention to which the United States is a Party.
As a recent example of potential difficulties, in July 1994, in the context of their right to exploit seabed resources in the strategic straits of Malacca, Malaysia stated that the ‘‘newness’’ of the transit passage regime casts doubts as to its status as a customary international law principle.
Customary international law tends to be hard to enforce and maintain. For exam- ple, eighteen states continue to claim territorial sea in excess of twelve nautical miles. Thirteen states claim, historic bays inconsistent with international law. More than sixty countries delimit straight baselines along portions of their coast, many of which are drawn inconsistently with international law. Also, more than twenty states attempt to over-regulate their exclusive economic zones (EEZ), contrary to the express provisions of the Convention.
Since 1979, the United States has formally contested excessive coastal state claims, both operationally and diplomatically, through the Freedom of Navigation Program. The program is based entirely on the navigation and overflight provisions of the Convention. While this program is designed to breathe life into the terms of the Convention, Parties to the Convention are likewise capable of defining or refin- ing provisions of the Convention. By remaining outside the Convention, the United States’ only way of confronting attempts by Parties to the Convention to interpret or refine Convention provisions would be by the exercise of our naval and air forces in accordance with the existing terms of the Convention. However, in presenting Ad- miral Center’s paper, Commander Rosen will discuss that this will be harder to do in the years to come as we downsize. Also, as a nation committed to the rule of law, the use of military force to resolve legal conflicts between Parties and non-Parties to the Convention should not be the preferred method of challenging excessive coast- al state claims.
I would note that, in the case of the ‘‘Black Sea Bumping Incident,’’ the United States and Soviet Union approached the legal issues involved as would Parties to the Treaty in relying on the Convention’s rules on innocent passage to amicably re- solve the issues raised by the incident.
If the United States and other major maritime and industrialized powers do not become parties to the Convention, there is a real possibility and probability that the delicate balance that the Convention provides in dealing with emerging issues of im- portance, including environmental protection and resource conservation, would simply begin to unravel. The Convention provides an excellent framework for address- ing and resolving contentious issues which, if attended to solely on a bilateral basis, would undoubtedly give rise to increased tensions and conflict elsewhere. Moreover, if the Convention does not receive the support of the major maritime powers, it will lose its restraining influence as law, and the United States will thus be hard pressed to argue that the Convention continues to reflect customary international law. As a result, insistence upon our navigational freedoms, based on a traditional claim-counterclaim, customary international law approach, would be costly diplomatically and economically and could invite military resistance. It was this reality that led us as a nation to undertake the prolonged negotiations that resulted in the 1982 Convention. Moreover, the Convention’s entry into force and its wide accept- ance properly forecloses any possibilities of reopening negotiations.
Finally, dispute settlement under customary international law can run the gamut from diplomatic intervention to economic sanctions, to arbitration, to bringing an action before the International Court of Justice. Bottom line, it is ad hoc, at best. The Convention, on the other hand, contains an elaborate dispute settlement mechanism that promotes compliance with its provisions and ensures that ocean disputes will be settled in a peaceful manner. This mechanism is both flexible, in that Parties have options as to how and in what fora they will settle their disputes, and comprehensive, in that most of the Convention’s rules can be enforced through binding dispute resolution. At the same time, however, the dispute settlement mechanism accommodates matters of vital national concern by excluding certain sensitive categories of disputes, such as fisheries management in the EEZ, from binding dispute settlement. It also allows State Parties to exclude other disputes, such as controver- sies involving military activities, from the binding dispute settlement procedures.
As a State Party, the United States could enforce its rights and preserve its prerogatives through peaceful dispute settlement under the Convention, as well as en- courage compliance with the Convention by other State Parties.
The last point I would like to address is that of a resumption of a clear leadership role for the United States in international oceans policy affairs—an area where we have so much at stake.
As the preeminent global power in the 1990s and beyond, the United States is uniquely positioned to assume a more visible leadership role. The United States can lead the movement to the achievement of a widely accepted international order, regulating and safeguarding the diverse activities and interests regarding the world’s oceans. The Convention affords us the opportunity to lead in a way that protects and promotes U.S. national security interests. To ensure a leadership role in this important arena, the United States must become a party to the Convention.
By remaining outside the Convention, our long-standing leadership role in international ocean affairs, and in fora such as the International Maritime Organization, would be further eroded. Moreover, as an outsider looking in, we would not be in a position to influence the Convention’s further development and interpretation. In effect, as mentioned earlier, by refusing to become a Party to the Convention, the only way we could seek to influence changes in the LOS regime would be through unilateral action, and that could lead to further destabilization and increased international friction.