Freedom of navigation program is no longer sufficient for US to secure its naval rights
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One method the United States has adopted to deal with state claims inconsistent with international law as reflected in the Convention is the Freedom of Navigation (FON) Program. Initiated in 1979 and continued by every administration since then, this program combines diplomatic action and operational assertion of our navigation rights to discourage state claims inconsistent with international law as reflected in the Convention. But the political, economic, and military costs of this program are not trivial, and for a Navy stretched thin to meet its urgent operational commitments, every freedom of naviga- tion challenge comes with an opportunity cost somewhere else—to say nothing of the risks to the Sailors on those ships. This was put forcefully by then-CNO Vern Clark in a letter to the Senate Armed Services Committee:
For the many years we’ve remained outside the Convention, we’ve asked our young men and women to conduct operations, sometimes at great risk, to challenge the exces- sive maritime claims of other states. Joining the Law of the Sea Convention will let our people know that, when they’re operating in defense of this nation, far from our shores, they have the backing and the authority of widely recognized law to look to, rather than depending only upon the threat or use of force.
The tense showdown between the United States People’s Republic of China over the collision between a Chinese fighter and a Navy EP-3 aircraft—an event that occurred in China’s exclusive economic zone—is but one indication of the risks described by Admiral Clark. sufficient for US to secure its naval rights The tense showdown between the United States and the
The United States can assert its navigational rights at any point on the globe, but it cannot be assured of a local superiority of forces simultaneously at every location of potential maritime dispute. Moreover, obvious practicality compels restraint—against both allies and potential adversaries—over maritime disputes. Even the peaceful and non-confrontational Freedom of Navigation (FON) program may present diplomatic costs and pose risks inherent in physical challenges,