US reliance on freedom of navigation program and customary law emboldens other coastal states to make excessive claims

When the Convention on the Law of the Sea came into effect in 1982 it sought to broadly codify and balance coastal state territorial and resource rights against the need for freedom of navigation by maritime nations.54 Coastal state territorial seas were expanded, but only after acceptance of regimes for innocent and transit passage.55 The same balance was struck when creating archipelagic lanes through island nations and allowing for high seas freedoms in the newly created Exclusive Economic Zone (EEZ) where coastal states now maintained resource rights.56,57 This area of “shared rights and responsibilities,” along with coastal nation propensity to “adopt excessively generous” baselines, has proven quite contentious for the United States as it seeks to maintain freedom of navigation and peacetime access around the globe.58,59 Furthermore, coastal state interpretation of the convention in a manner most beneficial to self-interest creates major difficulties for the United States. As a non-party to UNCLOS, the U.S. lacks “a seat at the table when the [160] parties to the Convention interpret (or try to amend)” the rights and freedoms protected within the convention, and forfeits the use of binding dispute resolution to counter coastal state encroachment.60 Instead these freedoms negotiated in the convention, but either ignored or incorrectly interpreted, must be objected to through the U.S. Freedom of Navigation (FON) Program to keep customary international law from developing contrary to U.S. strategic interests.61 Unfortunately, “that approach plays directly into the hands of those foreign coastal States that want to move beyond the Convention,” because “they too cite customary international law as the basis for developing claims of coastal State sovereignty in the EEZ.”62