Relying on customary international law to preserve freedom of navigation is not timely enough of a response for commercial interests
[ Page 6-7 ]
The Convention guarantees rights of innocent passage through territorial seas, transit passage through straits and archipelagoes, and freedom of all vessels on the high seas. Seafaring vessels, such as container ships, crude oil tankers, and bulk carriers, carry over 95 percent of all goods imported to or exported from the United States. Guaranteeing their free movement is both an economic and a national security concern, as these ships transport the majority of this country’s oil and other crucial commodities and goods.
The Convention’s detractors argue that U.S. ships can rely on customary international law to ensure their mobility. But customary international law is not well- suited to the needs of business. By definition, it is hard to find and apply customary law because it does not exist in one place. Its rules can and will shift over time. Shipping companies benefit from a set of stable, written rules that they can easily reference during a dispute. The Law of the Sea Convention serves this function by codifying key navigational rights in a single, central authority.
Opponents of UNCLOS claim that the United States should not become a party because the United States already enjoys the benefits of UNCLOS through customary law and, therefore, should not unnecessarily incur the treaty's burdens. However, this ignores the fact that customary law can change and can also be influenced by how parties to UNCLOS decide to interpret its provisions.