UNCLOS provides benefits to freedom of navigation beyond capacity of customary international law
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Each year the United States challenges dozens of states for asserting legal rights that impede freedom of the seas. Iran, North Korea, and China have all challenged the U.S. navy’s free passage through their EEZ. By codifying the right to pass freely through the exclusive economic zone of foreign states without restrictions on cargo or formation, the Law of the Sea strengthens America’s ability to project power.
But these rights are already recognized as customary international law. What does the Convention add? For one, it makes these rights stronger. Written treaties are perceived as more powerful than customary laws. By signing the Convention, the United States gives added weight and stability to customary rights, and pushes recalcitrant states to respect navigational freedoms.
More importantly, the Convention creates a forum to change navigational rights. It is possible, though unlikely, that future deliberations under the Convention might create rules that undermine freedom of navigation. If the United States fails to ratify the Convention, it will lose the opportunity to defend these rights. The problem is not that other states can stop the U.S. Navy from sailing where they want to sail. The problem is that they can raise the costs of doing so. If a nation decides to forbid U.S. ships their legal right to pass, America could use force to assert our right. But, realistically, it will be more likely to seek legal remedy. Signing the Convention lowers the cost of projecting power.
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.