U.S. navy will need to regularly assert and protect its freedom of navigation rights whether US is party to UNCLOS or not
[ Page 11 ]
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.” 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. "
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.
It is not essential or even necessary for the United States to accede to UNCLOS to benefit from the certainty and stability provided by its navigational provisions. Those provisions either codify customary international law that existed well before the convention was adopted in 1982 or “refine and elaborate” navigational rights that are now almost universally accepted as binding international law.