Customary international law already protects U.S. navigation rights
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Those who support UNCLOS, in partic- ular the U.S. Navy, argue that it is essentially a deal: The U.S. gets valuable legal rights of navigation in return for ceding to the ISA some regulatory powers that, since the 1994 agreement, are economically modest and politically unthreatening.
An obvious retort to this is that the U.S. already enjoys navigation and other rights under customary international law and earlier conventions. We gain nothing new by signing the treaty. The Navy responds that we would be on stronger ground in assert- ing our rights against challenge if we were supported by ITLOS (the International Tribunal for the Law of the Sea) in Ham- burg. But signatories to UNCLOS are bound to respect our rights under customary law anyway. Small powers are unlikely to challenge those rights. If a great power were to do so, the U.S. Navy is the only force capable of enforcing them. And that is so whether or not we are signatories 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.