Revision of Freedom of Navigation program is not a long-term viable solution to address excessive claims from Thu, 04/08/2021 - 23:35
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 Freedom of Navigation (FON) program may present diplomatic costs and pose risks inherent in physical challenges,
Quicktabs: Arguments
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 2007Walsh, Patrick M. "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.
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
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.
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.
I also believe, Mr. Chairman, that it is short-sighted to argue that, if the customary law system somehow breaks down, the United States, as the world’s pre-eminent naval power, wouldn’t have any trouble enforcing it. Clearly, our Navy could engage in such an effort. However, enforcing our navigational rights against every coastal nation in the event the Convention and customary law systems collapse would be very costly, both politically and economically. Moreover, it would divert our forces from their primary missions, including the long-term global war on terrorism. Excessive coastal nation claims are the primary threat to our navigational freedoms. Those claims can spread like a contagious virus, as they did in the 20th Century. The added legal security we get from a binding treaty permits us to use our military forces and diminishing resources more efficiently and effectively by concentrating on their primary missions.
The critics also show little understanding of the realities of asserting the rule of law in the world's oceans. They seemingly contend that the United States can protect its interests by shooting its way around the oceans rather than developing a stable and favorable legal regime, defensible with force if necessary, that provides a legal basis for naval and air operations. The United States simply cannot shoot its way to acceptable resolutions of oceans disputes with Canada, Chile, Brazil, India, Italy and other democracies. Nor is it realistic to ignore the effects of law and international agreements in our interactions with others. It is hubris to believe that the United States can disregard the law without consequences, as it creates scenarios where other nations follow suit, thus compromising interests on both sides. Ironically, at a time when the president of the United States is urging others toward the rule of law as a foreign policy interest, the critics voice only disdain for that principle.
One method the United States has adopted to deal with state claims inconsistent with international law as reflected in the Convention is the Freedom of Navigation (FON) Program. Initiated in 1979 and continued by every administration since then, this program combines diplomatic action and operational assertion of our navigation rights to discourage state claims inconsistent with international law as reflected in the Convention. But the political, economic, and military costs of this program are not trivial, and for a Navy stretched thin to meet its urgent operational commitments, every freedom of naviga- tion challenge comes with an opportunity cost somewhere else—to say nothing of the risks to the Sailors on those ships. This was put forcefully by then-CNO Vern Clark in a letter to the Senate Armed Services Committee:
For the many years we’ve remained outside the Convention, we’ve asked our young men and women to conduct operations, sometimes at great risk, to challenge the exces- sive maritime claims of other states. Joining the Law of the Sea Convention will let our people know that, when they’re operating in defense of this nation, far from our shores, they have the backing and the authority of widely recognized law to look to, rather than depending only upon the threat or use of force.
The tense showdown between the United States People’s Republic of China over the collision between a Chinese fighter and a Navy EP-3 aircraft—an event that occurred in China’s exclusive economic zone—is but one indication of the risks described by Admiral Clark. sufficient for US to secure its naval rights The tense showdown between the United States and the
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.