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
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.
LOSC critics often argue that the treaty’s navigational provisions are redundant given that countries – including the United States – comply with customary international law. However, as navies around the world modernize, states may seek to redefine or reinterpret customary international law in ways that directly conflict with U.S. inter- ests, including freedom of navigation. Ratification will help the United States counter efforts by rising powers seeking to reshape the rules that have been so beneficial to the global economy and to U.S. security. China, for example, seeks to alter customary international law and long-held interpretations of LOSC in ways that will affect operations of the United States as well as those of many of its allies and partners. Some U.S. partners and allies share China’s view on some of these issues. Thailand, for example, has adopted China’s view that foreign navies must have consent of the coastal state before conducting military exercises in its Exclusive Economic Zone (EEZ), a view that runs counter to traditional interpretation of the treaty.10 LOSC provides a legitimate and recognized framework for adjudicating disagreements that will enable the United States to sustain access to the global commons.
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.
Admiral Clark's statement indicates that becoming a party to UNCLOS will help solidify United States rights that now exist only in customary international law.95 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.96 however, ignores the fact that customary law can change and can also be influenced by how parties to UNCLOS decide to interpret its provisions.97 If the United States is not a party, it will have no say as to how the law develops.98 By becoming a party to UNCLOS, the United States will be able to ensure that the law of sea develops in congruence with its national security and other interests.99
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.
UNCLOS opponents are correct on at least one point. The customary international law of the sea – at least as generally understood today – is consistent with U.S. national security interests. The U.S. government has said as much.15"Statement of William H. Taft IV (April 8, 2004): 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 U.S. Senate Committee on Armed Services, April 8, 2004. [ More (10 quotes) ] However, in relying on the apparent harmony between UNCLOS and customary law as rationale for the U.S. to remain outside the treaty, opponents have failed to address a critical question: What if UNCLOS or customary law changes? Is it possible that today’s favorable legal environment could evolve adversely to U.S. interests?
The question is more than speculative. Through the years, a variety of nations have advanced legal theories inconsistent with critical U.S. ocean policy interests.16 Historically, these nations have lacked the will or ability to affect meaningful change in the international law of the sea. Today, however, this dynamic is changing.
Consider, for example, U.S. military operations in the off-shore area known as the EEZ, as codified by UNCLOS, comprising the waters beyond a nation’s territorial sea extending a maximum of 200 nautical miles from the coast.17 For years, the U.S. has consistently maintained the right under customary international law to conduct military activities in coastal state EEZs.18"Statement of William H. Taft IV (April 8, 2004): 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 U.S. Senate Committee on Armed Services, April 8, 2004. [ More (10 quotes) ] Over the past decade, however, the People’s Republic of China has initiated confrontations with U.S. ships and aircraft operating in the Chinese-claimed EEZ and its associated airspace. The Chinese have boldly rejected long-standing U.S. positions on customary international law and also challenged conventional interpretations of critical UNCLOS provisions.
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.
Custom can also develop rapidly based upon interpretations of treaties, as well as the rulings and declarations of international bodies and courts that can declare an existing customary rule.87 In the past 50 years, customary rules have developed quickly in response to technological innovation or in times of fundamental change.88 Moreover, rapid changes to custom do not require multiple instances of state practice,89 particularly when a state with special influence in the field seeks change.90 Most recently, the terrorist attacks on the World Trade Center and Pentagon resulted in changed custom concerning the use of force in self-defense against non-state actors91 and those who support or harbor terrorists.92 Such changes to the well-settled field of international humanitarian law would have been unthinkable in an earlier era.
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.