U.S. could more effectively advocate for and defend freedom of navigation rights as a party to UNCLOS
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Another very important step for the U.S. Government, to better ensure the freedom of navigation rights it now exercises, is to formally ratify the UNCLOS treaty. This step is not just to return to equal footing with other members on moral, diplomatic, and legal grounds in order to better support the rules-based- order that the United States government espouses, but also to be able to directly guide and protect U.S. interests in international fora and on the seas.437 The United States signed UNCLOS in 1994 after successfully negotiating an amendment to the document to correct earlier concerns by the industrialized states, but has not formally ratified it through the Senate. The most important UNCLOS provisions, like mari- time jurisdictions and right-of-passage, are in accord with U.S. policy so that U.S. domestic law generally adheres to UNCLOS statutes, as it also does with customary international law.438 The Department of State and DoD both support ratification to give the United States “greater credibility in invoking the convention’s rules and a greater ability to enforce them.”439 This treaty has come before the Senate several times, as recently as 2012, only to be tabled despite bipartisan support, mainly due to economic concerns with Part XI stipulations that cover the deep seabed.440 A direct American voice in the Law of the Sea Treaty debates could advocate for freedom of navigation and other U.S. interests as international law inevitably evolves, in order to counter the historic trend to circumscribe rights on the high seas by reducing its openness and limiting areas of operations. Foreign military navigation rights through an EEZ are a prime example of such restrictions with 26 countries supporting China’s and Vietnam’s restrictive positions, including major maritime states like India and Brazil.441 The Senate needs to ratify this treaty to allow the United States to defend actively its existing maritime legal interests and rights.