Revision of Freedom of navigation program is not a long-term viable solution to address excessive claims from Tue, 03/04/2014 - 21:08
The costs of conducting frequent naval Freedom of Navigation missions may be significant—in political, economic, and military terms. Beyond the incidental financial costs of conducting such exercises, they sometimes require deploying naval vessels to regions they would not normally patrol. While some Freedom of Navigation missions would still be conducted, regardless of the U.S. position on the 1982 Convention, the U.S. would be able to shed some Freedom of Navigation commitments and would face fewer contentious issues if the United States were a signatory to the Treaty.
Quicktabs: Arguments
U.S. adherence to the Convention is not necessary because navigational freedoms are not threatened (and the only guarantee of free passage on the seas is the power of the U.S. Navy).
- It is not true that our navigational freedoms are not threatened. There are more than one hundred illegal, excessive claims affecting vital navigational and overflight rights and freedoms.
- The United States has utilized diplomatic and operational challenges to resist the excessive maritime claims of other countries that interfere with U.S. navigational rights under customary international law as reflected in the Convention. But these operations entail a certain amount of risk – e.g., the Black Sea bumping incident with the former Soviet Union in 1988.
- Being a party to the Convention would significantly enhance our efforts to roll back these claims by, among other things, putting the United States in a far stronger position to assert our rights and affording us additional methods of resolving conflict.
Why support the Convention now? Administration officials cite a "resurgence of creeping jurisdiction" by coastal states within their EEZs.36 This resurgence threatens Convention-based navigational rights, which are at least as important today as they were during the Cold War. Alternative ways to respond to creeping coastal state jurisdiction are not satisfactory. If the U.S. continues to rely on assertions that customary international law establishes certain navigational rights, coastal states may increasingly counterclaim that emerging customary international law restricts such rights in coastal zones.37 Some coastal states may altogether deny that Convention-based navigational rights exist under customary international law. As Admiral Michael G. Mullen, Vice Chief of Naval Operations, testified before the Senate Foreign Relations Commit- tee, "some coastal states contend that the navigational and over- flight rights contained in the Convention are available only to those states that also accept the responsibilities set forth in the Convention by becoming parties to it."38 if it joined the Convention, the U.S. would likely have less need to rely on either its Freedom of Navigation Program39 or negotiating new bilateral agreements.40 The rules in the Convention clarify issues and narrow considerably the range of possible disagreements over navigational rights. Accepting the Convention will thus be less expensive-in terms of dollars, potential confrontations or loss of good will with coastal states, and U.S. concessions on other fronts-than continuing to stand outside it.
The costs of conducting frequent naval Freedom of Navigation missions may be significant—in political, economic, and military terms. Beyond the incidental financial costs of conducting such exercises, they sometimes require deploying naval vessels to regions they would not normally patrol. While some Freedom of Navigation missions would still be conducted, regardless of the U.S. position on the 1982 Convention, we believe that, from an operational standpoint, our dwindling naval forces would be able to shed some Freedom of Navigation commitments and that we would face fewer contentious issues if the United States were a signatory to the Treaty. As one observer put it, “If freedom of the seas has to be bought by vigilance and violence, then it will be, and the U.S. Navy will bear the brunt.”11 While there have been no flagrant incidents of a Treaty signatory denying navigational rights to the United States as a nonsignatory, a climate of periodic discord and confusion has developed surrounding some maritime controversies.12 This climate has the potential to be particularly acute for the United States. Without a Treaty, the United States has but two instruments to safeguard these freedoms should one or more nations fail to abide customary law: freedom of navigation assertions and diplomatic actions. This method is politically costly and detracts from other Navy missions.13
“Egregious Excessive Claims.” A ninth reason that led the United States toward accession to the Convention was the growing political and military cost of the Freedom of Navigation (FON) Program. This effort, initiated by the Carter administration in 1979 and continued under presidents Reagan, Bush, and Clinton, combined diplomatic and operational (not solely naval) means to discourage claims violating the navigational freedoms asserted by the 1982 Convention—freedoms that the US. supported even though, for other reasons, it had not signed the treaty.49 The FON program involved (and at this writing still does) naval exercises and consultations, bilateral and multilateral, with other governments to promote maritime stability, conformance with international law, and adherence by all nations to the customary rules and international law reflected in the Convention.
This is just a sampling of excessive maritime claims and their sequels, but it represents the financial and diplomatic costs, as well of the risks, associated with the FON program. The case became compelling that such costs and risks would be substantially less under a specific, binding treaty.55 Two noted experts on the law of the sea, 1. Ashley Roach and Robert W. Smith, presented the position of the State Department in 1994: “Unilateral U.S. demonstrations of resolve—especially operational assertions—are sometimes viewed as antagonistic. They risk the possibility of military confrontation and of political costs that may be deemed unacceptable, with prejudice to other US. interests, including worldwide leadership in ocean affairs and support for use of cooperative, international solutions to mutual problems?“
In fact, many of the nations making claims that the U.S. considered excessive were asserting that the Convention was a legal contract, the rights and benefits of which were not necessarily available to non-parties—such as the United States. The Continual counter-assertion that these rights and benefits were already embodied in customary international law was appearing more and more difficult to sustain. In testimony before the Senate Foreign Relations Committee in the summer of 1994, the chairman of the Department of Defense Task Force on the Law of the Sea Convention, John McNeill, pointed to the likelihood of “increasingly egregious excessive claims” by many coastal states as a critically important reason to seek U.S. accession to the Convention.57 The danger of continuing to rely on the FON program was summed up by Rear Admiral William Schachte: “The political costs and military risks of the Freedom of Navigation Program may well increase in the changing world order.”58 Conversely, accession to the Convention, by the United States would, it was hoped, convince states making excessive claims to retract them and, perhaps more importantly, keep in check their natural desire to extend sovereignty to offshore areas, when it would be inimical to navigation and overflight rights.”
Myth: The United States can rely on use or threat of force to protect its navigational interests fully.
Reality: The United States has utilized diplomatic and operational challenges to resist the excessive maritime claims of other countries that interfere with U.S. navigational rights. But these operations entail a certain degree of risk, as well as resources. Being a party to the Convention would significantly enhance our efforts to roll back these claims by, among other things, putting the United States in a stronger position to assert our rights.
Customary international law tends to be hard to enforce and maintain. For exam- ple, eighteen states continue to claim territorial sea in excess of twelve nautical miles. Thirteen states claim, historic bays inconsistent with international law. More than sixty countries delimit straight baselines along portions of their coast, many of which are drawn inconsistently with international law. Also, more than twenty states attempt to over-regulate their exclusive economic zones (EEZ), contrary to the express provisions of the Convention.
Since 1979, the United States has formally contested excessive coastal state claims, both operationally and diplomatically, through the Freedom of Navigation Program. The program is based entirely on the navigation and overflight provisions of the Convention. While this program is designed to breathe life into the terms of the Convention, Parties to the Convention are likewise capable of defining or refin- ing provisions of the Convention. By remaining outside the Convention, the United States’ only way of confronting attempts by Parties to the Convention to interpret or refine Convention provisions would be by the exercise of our naval and air forces in accordance with the existing terms of the Convention. However, in presenting Ad- miral Center’s paper, Commander Rosen will discuss that this will be harder to do in the years to come as we downsize. Also, as a nation committed to the rule of law, the use of military force to resolve legal conflicts between Parties and non-Parties to the Convention should not be the preferred method of challenging excessive coast- al state claims.
I would note that, in the case of the ‘‘Black Sea Bumping Incident,’’ the United States and Soviet Union approached the legal issues involved as would Parties to the Treaty in relying on the Convention’s rules on innocent passage to amicably re- solve the issues raised by the incident.
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The author argues that U.S. Freedom of Navigation Operations (FONOPs) in East Asia are increasingly provocative and prone to accidents and they could lead to "a long, drawn-out crisis that, even if it stops short of war, would prove highly disruptive to U.S. efforts to cooperate with China on areas of great import."
[ More ]The author argues that U.S. shows of force in the South China Seas through freedom of navigation operations are counterproductive and risk turning our allies against us. Instead the author argues a diplomatic approach would be more proportional and "seems to be sufficient for other nations, including maritime powers whose rights the U.S. claims to be protecting."
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