Empirically, UNCLOS has been no more effective than customary international law at reducing excessive claims and maritime conflict
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In theory, I agree with Messrs. that “customary law . . . is not as good as conventional law” because customary law is subject to change and written words of a treaty should provide more certainty. However, I do question their follow-on conclusions that customary law is “certainly not as efficient in resolving disputes between sovereigns for maintaining global order” and that UNCLOS, “being nearly universal, takes away a great deal of the uncertainty in the application of customary law for all cases.” Although I concur that UNCLOS was a great achievement and that the United States got much of what it wanted in the treaty text, like any other “framework” agreement, it is subject to widely varying interpretation or even misapplication by States Parties. As a result, UNCLOS has unfortunately not had a dispositive calming influence on dispute settlement or pre- vented the continued proliferation of excessive maritime claims. "
Today, excessive maritime claims continue to proliferate, particularly in the area of straight baselines and coastal state jurisdiction in the EEZ. Although the international community has witnessed a decline in the num- ber of excessive territorial sea claims (only nine remain today) , there are still three States Parties to the Convention that continue to claim a territorial sea in excess of 12 nm, even though UNCLOS Article 3 specifically and clearly limits the breadth of the territorial sea to 12 nm.22 In addition, over 40 nations restrict the right of innocent passage for warships in one way or another, even though efforts during The Third United Nations Conference on the Law of the Sea (UNCLOS III) to provide coastal states such authority failed to achieve majority support. Furthermore, the plain language of Article 17 specifically states “ships of all States . . . enjoy the right of inno- cent passage.”23 Although all of these illegal claims have been the subject of diplomatic protests or operational challenges by the United States, U.S. accession to UNCLOS will not cause these nations to rollback these excessive claims.
"A Response to Cartner’s and Gold’s Commentary on “Is it Time for the United States to Join the Law of the Sea Convention?”
." Journal of Maritime Law & Commerce
. Vol. 42, No. 4 (October 2011): 487-510. [ More (11 quotes) ]
U.S. security interests in the oceans have been adequately protected to date by current U.S. ocean policy and implementing strategy. U.S. reliance on arguments that customary international law, as articulated in the non-deep seabed mining provisions of the 1982 Law of the Sea Convention, and as supplemented by diplomatic protests and assertion of rights under the Freedom of Navigation Program, have served so far to preserve fundamental freedoms of navigation and overflight with acceptable risk, cost and effort.