U.S. navy will need to regularly assert and protect its freedom of navigation rights whether US is party to UNCLOS or not

Even if the LOST offered a definite and positive interpretation of navigation provi- sions, the legal protections for free transit would provide little practical gain. Benjamin and Daniel Friedman contend: “By signing the Convention, the United States gives added weight and stability to customary rights, and pushes recalcitrant states to respect navigational freedoms.”⁵²Friedman, Benjamin and Daniel Friedman. How the Law of the Sea Convention Benefits the United States . Bipartisan Security Group: Washington, D.C., November 2004 (7p). [ More (4 quotes) ] Administration representatives make the same argument: “The navigation and overflight freedoms we require through customary international law are better served by being a party to the Convention that codifies those freedoms,” testified Adm. Michael G. Mullen, then vice chief of naval operations for the Joint Chiefs of Staff.⁵³Mullen, Michael G. "Statement of Admiral Michael G. Mullen: On the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, October 21, 2003. [ More (3 quotes) ]

That’s true, but it doesn’t go very far. The now-retired Admiral Schacte acknowledged in Senate testimony: “The Convention alone is not enough, even [with the United States] as a party. Our operational forces must continue to exercise our rights under the Convention.”⁵⁴ That is, to protect American navigation rights from foreign encroachments, the U.S. Navy must regularly conduct military operations on the basis of the international transit freedoms claimed by Washington, regardless of whether or not the United States ratifies the LOST. Meanwhile, the LOST is unlikely to influence countries that have either the incentive or the ability to interfere with U.S. shipping. In practice, few do: nations usually have far more to gain economically from allowing unrestricted passage.