Revision of U.S. should ratify UNCLOS because customary international law is no longer sufficient to protect U.S. interests from Sat, 09/07/2013 - 17:16
Quicktabs: Arguments
And this expression of the national interest has been the precise locus of the isolationist backlash against UNCLOS. Treaty opponents have been unable to mount a serious challenge to the underlying substantive policy goals in favor of ratification of the Convention by the United States. The ability of the U.S. Navy to project power, under its Freedom of Navigation (FON) program as part of UNCLOS,9 has received a lot of negative attention of late, as coastal states (especially archipelagic nations and those bordering strategic straits)10 have renewed attempts to limit access by constraining the doctrines of innocent and transit passage under UNCLOS. Treaty opponents have cleverly argued that there is no need for the U.S. to ratify UNCLOS because all of its FON provisions are already reflected in customary international law (CIL). The problem – as recognized by the Pentagon – is that CIL formulations for FON are largely derived from the state practice following the 1958 Geneva Conventions (to which the U.S. is a party).11 It is not a credible international legal position, however, to rely on CIL frozen-in-time nearly a half-century ago. In order for the U.S. to effectively object to improper impositions of navigation interferences by coastal states, there must be a baseline (both literally and figuratively)12 of state behavior – and that standard is UNCLOS.
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 Convention reduces, but doesn’t wholly eliminate, the indeterminacy inherent in customary law. The Convention also provides greater stability and predictability. Here it should be noted that the LOS Convention’s articles can only be amended through an elaborate process that, by design, provides the kind of stability the U.S. has long sought in the maritime domain. By contrast, customary law rules evolve by the practice of nations asserting, acceding to or persistently objecting to new norms, thus introducing unwelcome uncertainty into the nation’s maritime affairs. Moreover, as Edwin Williamson, President George H.W. Bush’s State Department Legal Advisor noted, the history of customary international law “reflects a steady deterioration of the freedom of the seas to the detriment of the essential rights of maritime nations, such as the U.S.”
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.
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.