U.S. freedom of navigation disputes have decreased due in part to the influence of UNCLOS
[ Page 569-570 ]
One effective component of the struggle for law at sea and the preservation of freedom of the seas is the U.S. Freedom of Navigation (FON) program. The FON program began, more than twenty-five years ago to tangibly exhibit the U.S. determination not to acquiesce to coastal states’ excessive maritime claims. When the program began in 1979, U.S. military ships and aircraft were exercising their rights against excessive claims of about thirty-five countries at the rate of about thirty to forty challenges annually.140 As late as 1998, the United States was conducting more than twenty- five operational assertions each year.141 But by 1999 the decline in operational challenges led the Department of the Navy and the Department of Commerce (within which the National Oceanic and Atmospheric Administration resides) to recommend an expansion of the program to “exercise openly the traditional freedoms of navigation and overflight in areas of unacceptable claims.” In 2000, the United States conducted challenges against just fifteen states.143 The cumulative report for the years 2000 to 2003 and the 2004 report show further decline.144 By 2005, the Department of Defense reported conducting operational challenges against only six nations: Cambodia, Ecuador, Philippines, Indone- sia, Iran, and Oman. That level of operational assertions remained steady in 2006, with challenges reported against the excessive maritime claims of the Philippines, Indonesia, Iran, Oman, and Taiwan.146 The steady decline in freedom of navigation challenges over the last ten years is attributable to two factors: (1) a reduction in the number of excessive claims due to the constructive influence of the Convention and (2) Department of Defense resource constraints imposed by a declining naval force structure coupled with competing tasking in support of the War on Terror.
One way to determine the extent to which UNCLOS’s navigational provisions have achieved the status of binding international law is to study the behavior of nations. The consistent practice of states—maritime states, coastal states, UNCLOS members, and nonmembers—indicates that the UNCLOS navigational provisions are almost universally accepted law.