Customary international law is no longer sufficient to protect U.S. interests
Opponents of UNCLOS claim that the United States should not become a party because the United States already enjoys the benefits of UNCLOS through customary law and, therefore, should not unnecessarily incur the treaty's burdens. However, this ignores the fact that customary law can change and can also be influenced by how parties to UNCLOS decide to interpret its provisions.
Quicktabs: Arguments
Some states, especially developing nations, do not embrace customary inter- national law to the same extent that the United States and other maritime powers do. Those states view it as a body of law frequently formed without their participation and consent, law that only promotes the interests of developed nations—often former colonial powers. Developing countries prefer the relative certainty of inter- national agreements concluded on the basis of equality of nations.
Similarly, some Convention signatories, a number of whom are near or adjacent to important waterways used for international transit, have asserted that the Con- vention is a legal contract—and therefore its rights and benefits, such as transit passage and archipelagic sea lanes passage, are not available to non-parties. We do not accept these claimed restrictions on international transit rights, but such issues would be mooted under a universal Convention to which the United States is a Party.
As a recent example of potential difficulties, in July 1994, in the context of their right to exploit seabed resources in the strategic straits of Malacca, Malaysia stated that the ‘‘newness’’ of the transit passage regime casts doubts as to its status as a customary international law principle.
There is at least a germ of truth in this argument. The United States and its maritime activities are functioning reasonably well under the customary regime of the law of the sea. Most of the Convention is indeed a codification of customary international law. President Reagan's 1982 statements acknowledged this and pledged that the United States would abide by its rules.41 But customary law does not provide the precision and detail of a written document. It may establish a principle, but its content may remain imprecise, subject to a range of interpretations. With respect to the exclusive economic zone (EEZ), for example, it is generally conceded today that the principle of the zone has become a part of customary international law. But what about its content? The details are contained in a set of articles codifying a series of compromises worked out in meticulous detail in the negotiations leading up to the signing of the Convention. The rules for determining the allowable catch of the living resources of the EEZ, the determination of the coastal State's capacity to harvest them, the determination of the allowable catch by other States and the rules governing the coastal State's establishing of terms and conditions for foreign fishermen in their EEZs are laid out in detail.42
Customary rules are fuzzy around the edges and may not be recognized as binding by an opposing State. The "jurisdiction creep," which continued after the 1958 and 1960 First and Second UN Conferences on the Law of the Sea, illustrated the futility of relying on customary law to protect our vital security interests. Only a written document can provide the certainty and stability required by our governmental agencies and private maritime enterprises. And in any dispute with a foreign State to secure its compliance with the rules set forth in the Convention, arguments based on a written agreement rather than an asserted principle of customary international law would be much more effective.
Rightly so, opponents point out that over the past 30 years the consequences of remaining a non-party have been negligible, especially with respect to national security.33 Unfortunately, this in no way guarantees similar results in the future.
Although status quo advocates frequently acknowledge that the United States is already bound by the convention through customary international law and President Reagan’s 1983 Ocean Policy, this isn’t the same as being a party to the convention.34 Furthermore, this is almost circular logic to show that the United States can exploit the convention’s customary law status to receive protection while still operating as a non-party. Such is the case with submissions to the Commission on the Limits of the Continental Shelf (CLCS), economic security within the U.S. exclusive economic zone (EEZ), deep-seabed mining, and freedom of navigation on the high seas.35
This practice, however, is a slippery slope because, “customary law does not provide the precision and detail of a written document. It may establish a principle, but its content may remain imprecise, subject to a range of interpretations.”36 Taking this a step beyond disagreement over interpretations, customary law can and will change and as the U.S. Navy Judge Advocate Corps (JAG) asserts, “relying on customary international law as the basis for...rights and freedoms is an unwise and unnecessary risk.”37
It is not too late to accede to the convention, and unlike opponents and status quo advocates would have the public believe, there are still good reasons to take the next step and lock into the convention while conditions remain favorable to U.S. interests.
Opponents also contend that accession is basically unnecessary for the United States to enjoy the benefits of the Convention. On this view, we get the benefit of the rest of the world treating the Convention’s provisions as customary international law without having to sign up ourselves. And, the argument goes, if there are any deficiencies in our legal rights, the U.S. Navy can make it up through force or the threat of force. So why join the Convention and subject ourselves to, for example, third-party dispute settlement?
This argument misses some key points:
First, asserting customary international law does not secure all the benefits of the Convention for us. For example, as a non-party, we do not have access to the Continental Shelf Commission and cannot nominate nationals to sit on it.
Second, relying on customary law does not guarantee that even the benefits we do currently enjoy are secure over the long term. Customary law is not the most solid basis upon which to protect and assert U.S. national security and economic rights. It is not universally accepted and changes over time based on State practice. We therefore cannot assume that customary law will always continue to mirror the Convention, and we need to lock in the Convention’s rights as a matter of treaty law. As Admiral Mullen testified when he was Vice Chief of Naval Operations, “[it is too risky to continue relying upon unwritten customary international law as the primary legal basis to support U.S. military operations.” One irony of this debate is that some of the opponents of the Convention are the same people who most question the viability of customary international law.
Third, to obtain financing and insurance and avoid litigation risk, U.S. companies want the legal certainty that would be secured through the Convention’s procedures in order to engage in oil, gas, and mineral extraction on our extended continental shelf. So, while it may be true that the Navy will continue to exercise navigational rights with or without the Convention, U.S. companies are reluctant to begin costly exploration and extraction activities without the benefit of the Convention.
Fourth, military force is too blunt an instrument to protect our asserted customary international law rights, especially our economic rights. It is simply unrealistic and potentially dangerous to rely solely on the Navy to ultimately secure the benefits of the Convention. The Navy itself has made clear that treaty- based rights are one of the tools it needs in its arsenal.
First, customary international law is, by its very definition, a fluid and changing concept. Vague on details, it is a constantly evolving process created by claim and counterclaim. As a result, there is much less agreement on the details of the customary Law of the Sea. Therefore, customary international law does not provide the kind of stability and predictability that we need for an uncertain political landscape. By contrast, the Convention locks in the rules that promote maximum maritime flexibility while at the same time ensures that coastal state interests are accommodated. This balance between maritime and coastal interests enhances the Conven- tion’s long term viability as well as its widespread acceptability among diverse inter- est groups. In short, the Convention will foster the legal stability that the United States and the rest of the international community has sought for so long.
The end of the Cold War has not changed the fact that many of our economic, political, and military interests are located far away from American shores. Recent events in Haiti, the Persian Gulf, the former Yugoslavia, Somalia, and Rwanda serve as important reminders that we still live in an uncertain and potentially dan- gerous world. While the specific threats and challenges that the United States will face in the years ahead undoubtedly will differ from those that dominated our think- ing over the past forty years, capable, vigilant forces will continue to be required to deter aggression and, if deterrence fails, to take necessary action.
The Convention provides the stability and predictability we seek to ensure the flexibility and mobility for our military naval and air forces, as well as our seaborne and airborne commercial activities around the world. By serving as a source of au- thority, the Convention guides the behavior of nations, promotes stability of expecta- tions, and provides a framework for issue resolution. In effect, it provides the legal predicate for our armed forces to respond to crises expeditiously and, importantly, at minimal diplomatic and political costs. And while the Convention may not pre- clude all attempts by coastal and archipelagic states to impede navigational freedoms, it puts the world community on notice that these freedoms have a solid legal basis and enjoy broad support among the major maritime and industrialized nations.
There is significant danger in relying so heavily on customary international law to support U.S. desires, and especially to guarantee the movement of our naval expeditionary forces. Customary law is inherently "fuzzy around the edges" and vague on details. This customary law is constantly evolving through a process of claim and counter claim,55 representing an inherently unstable landscape. Some states, especially newly indepen- dent states, do not recognize customary law. They view it as a body of law, frequently formed without their participation or consent, that promotes the interests of developed nations—often former colonial powers—without considering and reflecting those of the developing world56. Finally, customary law is especially difficult to enforce and maintain, requiring, for example, the comprehensive U.S. Freedom of Navigation Program to maintain57 the United States' desired level of freedom of navigation and overflight.
Legal scholars have noted that governments are more inclined to respect obligations to which formal consent has been given by the highest political authorities and that even if the Convention is declaratory of customary international law, this leaves much room for argument about important details. They further argue that without widespread ratification of the Convention, inevitable "violations" are more easily interpreted as evi- dence that state practice, the ultimate source of customary law, is not necessarily rooted 58 in the Convention.
Customary international law cannot unequivocally guarantee that the same benefits the United States currently enjoys under UNCLOS can be secured for the indefinite future.194 By its very nature, customary international law is not always universally accepted and also may change over time based on State practice.194 Therefore, it is illogical to operate under the presumption that customary international law will always mirror UNCLOS. The only way to permanently retain these rights, such that they are always at the disposal of the US, is to solidify them through treaty law.195 It is almost amusing that UNCLOS opponents, of. ten the most vocal critics of the uncertainty of customary international law, are simultaneously impelling the US military and US businesses to exclusively rely on it to protect their essential interests.196
Continuing to rely on an idealistic conception of customary international law for asserting maritime navigational rights and for exploiting deep sea-bed resources, as opposed to deriving them from UNCLOS, undermines American national security objectives and deprives the US Navy of an essential tool needed for resolving disputes peacefully. Such ethnocentric derogation towards UNCLOS will inevitably expose the Navy to increased risks of military conflict.197
The treaty would officially give U.S. fisherman priority over stocks adjacent to the American coast, and the U.S. Navy would continue to navigate the globe unimpeded. But the U.S., almost alone, has never ratified the treaty it sought and needed, despite the efforts of every President since, because the rule is so customary that it goes mostly unchallenged.
Those who oppose ratification believe that regardless of whether the U.S. is a part of it or not, the Treaty, in binding others, provides the ground rules the U.S. seeks generally and now needs in the Arctic. This is a delusion.
Without the U.S. ratification of the Treaty, which would greatly support its integrity, the agreed upon 200-mile zone deal is under great stress around the world. The South China Sea is a prime example where the 200-mile zone deal is threatened as China claims much more, and the Arctic Ocean will be another. The U.S. must be able to legitimately defend its interests; It could challenge the encroachment of others as a ratified member of the treaty.
Those who believe the costs of ratification outweigh the benefits, because most of the benefits are already provided by customary law, might want to consider the global state of affairs that would unfold if the 160+ nations that are already a party to the Convention—including the critical straits states—chose to follow the U.S. lead and eschew adherence to a meticulously drafted convention in favor of malleable customary law rules. While the Convention’s 320 articles and 9 annexes are not always a model of precision, one can certainly question whether the Convention ambiguities the opponents point to are any clearer under the corresponding customary law and whether rule stability is better served by a conventional regime or the practice of 160+ states.