Should favor flexibility and evolving nature of customary international law over certainty of UNCLOS
The principal argument in favor of ratification seems to rest on the assumption that the world needs a comprehensive treaty to clarify and unify the law of the sea; that the alternative is chaos. In my opinion, this argument for ratification is overstated. The legal result of not ratifying the UNCLOS is not chaos in the law of the sea; it is the continued development of that dynamic body of law. Indeed, in areas of changing values and technology our own common law works best without codification.
Sometimes certainty is the highest interest of law-makers. With regard to the law of the sea, however, the fate of the four United Nations Law of the Sea Conventions coming out of Geneva in 1958 is pertinent evidence that other factors that influence the behavior of states can be more important than certainty. The United States ratified all four of those Conventions in 1961 and first violated them when we extended our exclusive fisheries zones to twelve miles in 1966. If the law raises certainty to a higher position than is tolerable in light of those factors favoring change, change occurs nonetheless and the law is degraded.
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.