Revision of Freedom of navigation program is not a long-term viable solution to address excessive claims from Sat, 04/12/2014 - 14:46
The United States can assert its navigational rights at any point on the globe, but it cannot be assured of a local superiority of forces simultaneously at every location of potential maritime dispute. Moreover, obvious practicality compels restraint—against both allies and potential adversaries—over maritime disputes. Even the peaceful and non-confrontational FON program may present diplomatic costs and pose risks inherent in physical challenges,
Quicktabs: Arguments
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.
Some columnists and think tank analysts have argued that U.S. accession to the Convention is unnecessary because excessive maritime claims can be addressed by invoking customary international law and with “operational assertions’’ by the U.S. military. But such an approach is less certain, more risky, and more costly than taking advantage of the Convention. Customary law is by nature subject to varying interpretations and change over time. Operational assertions—sending military ship and aircraft into contested areas—involve risk to naval personnel as well as political costs. Such assertions should be conducted aggressively where needed, but avoided where possible.
Suggestions that somehow our maritime interests can be asserted solely through robust naval power are not relevant to the real world. The overwhelming majority of ocean disputes do not involve enemies or issues that warrant military action. As Admiral Patrick Walsh testified at our first hearing in 2007"Statement of Admiral Patrick M. Walsh: Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention ." Testimony before the Senate Foreign Relations Committee, September 27, 2007. [ More (4 quotes) ]: "Many of the partners that we have in the Global War on Terror who have put life, limb, and national treasure on the line are some of the same ones where we have disagreements on what they view as their economic zone or their environmental laws. It does not seem to me to be wise to now conduct Freedom of Navigation operations against those very partners that are in our headquarters trying to pursue a more difficult challenge ahead of us, a Global War on Terror." Even a mythical 1,000 ship U.S. Navy could not patrol every strait, protect every economic interest, or assert every navigational right. Attempting to do so would be prohibitively expensive and destructively confrontational.
A fourth reason arguing for the importance of the Convention to our national security equation is the growing political and military costs of the U.S. Freedom of Navigation Program in the face of new excessive maritime claims by an increasing number of states. This program, initiated in 1979 by the Carter Administration, and continued by the Reagan, Bush, and Clinton Administrations, combines diplomatic action and operational assertion of our navigational rights to discourage state claims inconsistent with13 international law as reflected in the Convention. On the diplomatic front, the U.S. State Department protests maritime claims that are inconsistent with international law. Since the inception of this program, well over 100 such protests have been filed by the United14 States. Over the same time period, U.S. military ships and aircraft have exercised navigational rights and freedoms in all oceans against excessive claims of more than 5015 countries with numerous operational assertions every year. Clearly, the scope of this program alone makes it highly desirable for the United States to decrease the number of contentious ocean issues. Moreover, the political costs and military risks of such unilat- eral actions have been high in the past and can only increase in a changing world order.
If appropriately resourced by the combatant commanders, the Freedom of Navigation program is effective, but it is not a panacea. The United States can assert its navigational rights at any point on the globe, but it cannot be assured of a local superiority of forces simultaneously at every location of potential maritime dispute. Moreover, obvious practicality compels restraint—against both allies and potential adversaries—over maritime disputes. Even the peaceful and non-confrontational FON program may present diplomatic costs and pose risks inherent in physical challenges,148 as was displayed by the Black Sea bumping incident in February 1988. In 1996, the National Intelligence Council concluded that in some cases the costs, disadvantages, or risks of physically challenging excessive claims might be greater than the benefits.149 Of course, coastal states understand this calculus and will try to manipulate it to their advantage since they have an incentive to compel the inter- national community to acquiesce in their excessive maritime claims.
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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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