U.S. reliance on military power to assert freedom of navigation rights is no longer sustainable, should be grounded in rule of law through UNCLOS

The assertion that the US can enjoy all of the rights enjoyed afforded to State Parties without itself actually becoming a signatory rests on an illusory interpretation of how customary international law is applied. Customary international law, along with treaties, are the only two sources of international law considered to be binding.¹⁸⁶ Customary international law is formed by the convergence of two fundamental elements: State practice (usus) and the corresponding views of States that a particular norm exists (opinio juris).¹⁸⁷

Taking into account how customary international law is formed, consider opponents' reliance on a Department of Defense Ocean Policy Review Paper from 1993,¹⁸⁸ expressing that the Department of Defense's Freedom of Navigations Program was actively preserving the fundamental freedoms of navigation and over-flight.¹⁸⁹ However, from 2007-2012, the number of countries the United States has challenged under this same program has tripled.¹⁹⁰ This manifestly indicates a change in State practice and, thus arguably, a change in customary international law. Continuing to rely on an over twenty-year-old policy paper is doctrinally antithetical to customary international law and severely inadequate for preserving US maritime interests. Therefore, from a national security perspective, UNCLOS is now a more important legal regime than it was a few decades ago.¹⁹¹ Continued dependence on hard power and gunboat diplomacy is not a sustainable option for US foreign policy going forward.¹⁹²