These important provisions for navigational freedom are of the utmost importance in protecting global trade, one of the core mechanisms for global economic growth, and for lessening the risks of conflict involving efforts to assert jurisdiction over warships and other vessels entitled to sovereign im- munity. For “zone-locked” states, the absence of these navigational freedoms would mean losing access to the oceans as though the state were land- locked. Indeed, without the clear legal recognition of these fundaments of navigational freedom, UNCLOS would not have been possible. Sadly, however, the international community must be diligent in combating the challenges to navigational freedom that still exist. These include:

• Aberrant and vague “area” claims such as the old “Libyan Line of Death,” the Chilean “Mar Presencial,” China’s “nine-dashed-line” and North Korea’s 50-mile security zone claim;
• Excessive straight baseline claims;
• Excessive claims concerning innocent passage in the territorial sea; particularly claims concerning consent or notification for warships; claims which have never been accepted as part of oceans law and which have been jointly rebutted by the United States and Russia in the Jackson Hole Statement of September 23, 1989;
• llegal claims asserting ship construction or operation standards for transit through the territorial sea or the economic zone which have not previously been adopted through the IMO mechanism; and
• Claims limiting full high seas navigational freedoms in the exclusive economic zone.

For the most part aberrant and vague area claims and claims beyond permissible limits for the territorial sea and economic zone seem to be slowly re- ceding as the Convention takes greater hold each and every year. The more concerning problems for the future likely relate to the “character” of each of these zonal areas in UNCLOS. We must not permit gradual encroachments to roll back the core UNCLOS compromise of extended coastal state resource rights in return for full navigational freedom in the EEZ and straits transit rights through, over, and under straits used for international navigation.

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 United States might react to these coastal state navigational restrictions in four possible ways.³² First, it could acquiesce in them, a reaction that would significantly restrict navigational freedoms important to the United States. Second, the United States could continue to assert, via diplomatic channels, a customary international law right to navigation, backing up its assertions with naval exercises. Although the United States has been following this practice since 1979 under its Freedom of Navigation Program, this option is expensive. It is expensive in terms of dollars, potential confrontations, and prejudice to other U.S. interests in the coastal state.³³ Furthermore, this option may not contribute to a stable legal regime, since some U.S. claims under customary international law could compete with coastal state assertions of different emerging rules of customary international law. Third, the United States could negotiate bilateral treaties to preserve U.S. navigational rights in other states' coastal zones. This option is also expensive. Small states, not interested in sailing their vessels or conducting military exercises in U.S. waters, would expect other new military, economic, or political concessions in exchange for allowing the United States to conduct military exercises or navigate in their coastal zones. Finally, the United States could accept the multilateral Law of the Sea Convention. With respect to navigation rights, this treaty provides a stable legal base from which to promote freedom of navigation rules. Its written and hard-to- change rules, though not always highly determinate, at least narrow the range of disputes over permissible and impermissible restrictions on navigation. Convention proponents have strong consequentialist arguments to support the position that the Con- vention's freedom of navigation provisions benefit the United States.

National security interests were paramount in crafting the final text of the Convention, so it is unsurprising the treaty framework promotes regional stability, optimizes maritime strategic mobility, and yields other national security benefits. At home, the Convention supports strong flag and port state security measures and ensures the exercise of sovereignty in the territorial sea. The Convention also provides the most effective means to exercise U.S. leadership to shape the management and development of law of the sea. Abroad, the Convention facilitates combined operations with coalition partners through subscription to a common rule set, such as the Proliferation Security Initiative (PSI). The suggestion by some critics that the Convention represents a progressive confrontation of U.S. national security interests has turned historical analysis on its head, as the Convention in fact secured the essential oceans interests of the maritime powers. Senator Richard Lugar called the criticism of these “amateur admirals”¹⁵ factually and historically incorrect, and focusing on spurious concerns over vague losses of U.S. sovereignty.¹⁶ During the negotiations, the United States closely coordinated with the other major maritime powers— the Soviet Union, Japan, the United Kingdom and France—to accommodate high seas freedoms.¹⁷ These states, and particularly the superpowers, demonstrated a repeated willingness to go against their usual clients and allies in favor of positions supported by the maritime powers. The politics of the negotiations reflected national interest as a function of geography, rather than superpower politics or North-South differences. The cornerstone of this coordination was achievement of the provisions protecting freedom of navigation. In the end, essentially all of the maritime security benefits of the Convention are rooted in preserving maximum freedom of the seas.